External EU Border Protection: who is doing what?

External EU Border Protection: who is doing what?

The protection of EU external border has become one of the crucial issue or migrant and refugee crisis that Europe has been experiencing for almost five years. Since 2015 the EU external border as well as some Western Balkan countries such as Serbia and North Macedonia experience erection of physical barriers on borders. This should symbolize that individual countries sending political message to its citizens saying, ‘you are protected’ at any cost when it comes rule of law on the EU and its member states. The most profound example is Hungary where politicization of border issue has dominated the public discussion about rule of law or solidarity with people need as well as other EU member states.

Since April 2018 north/west region of Bosnia and Herzegovina faces constant flow of people that use territory of Una-Sana Canton as logistical hub for continuation of their journey further to the EU. There have been numerous reported cases of violent push backs by Croatian police by NGOs and humanitarian workers.[1] The cases were extensively reported by local as well as international media, and even acknowledged by Croatian president.[2]

Yet, the support expressed by Jean Claude Junker to Croatia joining the Schengen system[3], raise questions that have not been answered in past years. What is more important for the EU and its member states. Keeping the illusion of protected borders for citizens of individual member states, or respecting rule of law and normative credibility of the EU.[4] The point is that the EU and European Commission has very little competences how exercise its power and democratic control over border protection. As a consequence, member states argue that they lack financial and political support by the EU to protect the EU effectively. Saying this, the EU member states instead EU should be blamed for situation in which rule of law is questioned almost on daily basis. This responsibility “matrix” has fatal impact on perception of the EU as guardian of rule of law as well as on perception of the EU as norm-based community based on legal and ethic standards when it comes to human rights.

The development of EU border protection is driven by two divergent tendencies. Firstly, increases short and mid term security measures implemented by individual EU member states such as Hungary, Slovenia, Croatia, or Austria were put in place almost immediately following the migration crisis in the Western Balkans. Secondly, the European Commission expressed its aim to increase its competences in field of border protection, but it has no executive power in this field, but without success in past decade.

The current system of EU external border protection works as follows. The member states are responsible for physical and logistical border protection of external EU or Schengen border. Given the nature of integrated cooperation within area of Area of Freedom, Security, and Justice (AFSJ), political and legal cooperation framework of the EU, the European Commission coordinates the border protection in terms of facilitating of information exchange and provide assistance in case of emergency. The point in this system is fact that each EU member state has incorporated in its legal system Schengen Border Code (SBC) as being the key document for border management securing legal harmonization across the EU member states. The SBC defines execution of border management as well as required harmonization of each member state legal system when it comes to international law. Therefore, the 1951 Geneva Convention specifying status of refugee and required legal protection is matter on each EU member state legal system instead substance of EU legal system. To make the legal system more hazy, the refugee protection and definition of fundamental rights protection is substance of Charter of Fundamental Rights of the EU and  Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting international protection. As mentioned above, the main problem is who and how enforce these legal norms on member states’ level. Since the Court of Justice of the EU has very limited oversight control within AFSJ, it means that control over implementation of SBC is in hands of EU member states.[5] In addition to that, Court of Justice previously decided that it has also very limited competences when it comes to controlling of asylum protection system of within individual member states. As a result, the Commission can exercise only political power and influence into some extend. They have the most important competence that the EU institutions will not get any time soon: decision if the border regime is a threat for public policy of particular country relies on member states. In this case, there is it clear that political motivation of member states is to manage the border protection with their means (or even with support of Frontex agency), but not raising any issues about the competence or reliability of border management.

The current development on external border protection – most prominently in case of Croatian-Bosnian border – send clear message. EU member states are free to execute any kind of border protection measures regardless EU legal standards if the political aim is fulfilled – EU territory is protected. The evil is detail – there is no specification what is aimed political goal. Recently expressed support to Croatia’s membership in the Schengen System sends clear message that the political cooperation and different short sided interests are more important than rule of law within individual EU member states. From longer perspective, this policy will have severe consequences for the EU and its member states. Very limited willingness to defend rule of law, normative and ethic standards is only boosting effectiveness of well-oiled machine of organized crime. Situation in which organized crime can very quickly adjust to changing political climate within the EU portrays very negative future. Instead having standardized legal environment based on broadly accepted norms of human rights protection, the EU experience dynamics composed by divergent political aims and by organized crime. As the case of current development in Bosnia and Herzegovina shows the EU and international organizations let the crisis in Una Sana Canton to happen only because of low political interest to act according the international and European law. This political disinterest has been primarily motivated to on purpose disrespect to rule and law.