Governing the Area of Free Movement of Persons and Security:
Governmentality, Security and Borders
Glouftsios Georgios
Supervisor: Dr. Julien Jendesboz Second Reader: Dr. Stephanie Simon
27th June 2014
Master Thesis Political Science: European Union in a Global Order
University of Amsterdam
1 Student Information
First Name: Georgios
Last Name: Glouftsios
Student No.: 10600086
E-mail Address: glouftsios@hotmail.com
Programme: MSc Political Science
Specialization: European Union in a Global Order
Supervisor: Dr. Julien Jeandesboz
Second Reader: Dr. Stephanie Simon
Word Count: 31986 words
2 Acknowledgements
I would like to thank Dr. Julien Jendesboz for his continuous support and for his valuable comments, for sharing with me his in-depth knowledge on the politics of security, and for helping me to structure my thoughts.
I would also like to thank Dr. Stephanie Simon for reading my thesis. Last but not least, I would like to thank my parents for their patience.
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Table of Contents
Introduction………. 5
A Foucauldian approach to the study of the EU as an Area of Free Movement and Security………. 10
1.1. The abolition of internal border controls and the institutionalization of free movement………. 10
1.1.a. From the Single European Act to the Schengen Agreements………….... 10
1.1.b. From the Amsterdam Treaty to the Integrated Border Management Strategy………... 12
1.2. From Discipline to Security and Free Movement………. 15
1.3. Rationality and Problematization(s) of the Government of the Area of Free Movement of Persons and Security………... 22
1.4. Methodology: Discourse, Genealogy and the Policy Instruments Approach… 27 Border Controls: Addressing the Abusive Use of Free Movement……… 32
2.1. Borders, their Controls and their Rationale………... 32
2.1.a. “Borders” and “Border Controls”: Avoiding the “Territorial Trap”…….. 32
2.1.b. The Rationale behind EU Border Controls: Remote Control and the de- differentiation of Internal and External Security……….. 34 2.2. The EU Common Visa Policy………... 37
2.3. Frontex………... 42
2.3.a. Joint Operations at Sea: ΗERA II………. 45
The Digitization of Border Controls………. 49
3.1. Border Controls: Technology and Surveillance……… 49
3.1.a. Border Controls and Technology………... 49
3.1.b. Border Controls and Surveillance……….. 51
3.1.c. Towards a Generalized Surveillance?... 53
3.2. The Visa Information System……… 55
3.3. EUROSUR………. 61
4 Conclusions……….. 78 Bibliography……… 85 Secondary Sources………... Primary Sources………... 85 92
5 Introduction
As it is stated in Article 3(2) of the Treaty on European Union (TEU), “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (my emphasis). The first decisive step for the establishment of this area was the Schengen Agreement, which was signed on 14 June 1985 by five of the ten then Member States of the European Economic Community (EEC) - Belgium, the Netherlands, Luxembourg, France and the Federal Republic of Germany. The Schengen Agreement marked the beginning of the gradual abolition of the controls at the common borders of the Member States, which was the prerequisite for the liberalization of the movement of persons in Europe.
The articulation of the EU as an “area” of free movement of persons triggers questions relating to its borders and their function. Except for the gradual establishment of an internal area of free movement of persons, the abolition of internal border controls signified that the only border left to be controlled would be the one formed by the Member States‟ external borders. The framing of external border controls in the framework of the EU retains references to a conventional understanding of borders as the territorial edges of the Member States and of border controls as being conducted along these edges. This thesis challenges the conventional understanding of borders and border controls (Anderson and Bort 2001, Starr 2006) by interrogating the rationale behind the EU border controls. This is important because although border controls are conventionally understood as being conducted along the Member States‟ territorial edges, what is observed in Europe – and not only – is their spatial and temporal displacement. This thesis approaches border controls and borders by arguing, on the one hand , that border controls are better understood as controls on the movement of persons, and on the other hand, that borders should not only be conceptualized as the territorial edges of states, but also as the sites where these controls are taking place (Guild 2005).
The spatial displacement of border controls is manifested by the fact that controls on the movement of persons do not only take place at, but also beyond and before the actual territorial borders of the Member States. This spatial displacement goes hand in hand with a temporal one, as controls are conducted before – temporarily
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– individuals traveling to the EU reach the Member States‟ territories, and even before they start their journey. Such a reflection suggests that we have to rethink not only where and when border controls are taking place, but also where the borders of the Member States are situated. In other words, if borders are to be understood as the sites where controls on the movement of persons take place, we have to contemplate whether the spatial and temporal displacement of border controls urges for an alternative conceptualization of borders, whereby the latter are not exclusively understood as the territorial edges of the Member States. At the same time, what is also observed is a shift in the function of borders from defense and guarding purposes towards policing and law enforcement ones (Andreas 2000). Thus, except for rethinking where and when border controls are conducted, we have also to rethink what border controls serve for, by who are border controls realized and ultimately, which is the rationale behind the EU border controls.
More importantly, the interrogation of the EU border controls is intimately related with questions relating to the way that the EU is established and maintained as an area of free movement of persons and security, and with the question of how to govern this area. Instead of departing from the assumption that the EU is a fixed political entity with fixed borders (Snyder 2005), this thesis asks how border controls relate to the establishment, maintenance and governing of the EU as an area of free movement of persons and security. By doing so, it provides an innovative approach which challenges not only the “give-ness” of borders and border controls, but also the “give-ness” of the EU as such, by investigating it not as a fixed entity, but as an area characterized by a multiplicity of actors, processes and networks. The starting point of the analysis is that for the governing of this area, what is to be regulated and organized is the free movement of persons as a social process. The argument is that this is to be realized through border controls, which allow for the filtering of individuals travelling to and within the EU, in order the supposedly risky ones to be sorted out. The interrogation of the EU border controls reveals that their rationale is to remotely control the movements of individuals not only inside the Member States‟ territories and/or at their actual territorial borders, but also before they reach the latter, and even before they start their journey.
The “remote control” of individuals‟ movements is enabled, accelerated and diffused, through the operation of different information and surveillance systems, and through the application of new technologies in the field of border controls. In
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addition, except for enabling remote control, information and surveillance systems allow also for the coordination of the work of the various Member States‟ agencies dealing with border controls. It is important to highlight that because of the absence of a centralized European bureaucracy dealing with border controls, the borderline formed by the Member States‟ external borders is not an object controlled and governed by a “single overarching political center”, but by a decentralized network of different Member States‟ authorities (Walters 2002a, p. 563). In that sense, information and surveillance systems, by enabling the coordination of this network, they undergird border controls as modalities for the governing of the area of free movement of persons and security.
Methodologically, the thesis deploys a governmentality research model by relying on discourse analysis, genealogy and the policy instruments approach. Firstly, I will focus on the materiality of discourse in order to reveal – to use Foucauldian terms – the rationality and the problematizations relating to the governing of the EU as an area of free movement of persons and security. Subsequently, I will interrogate the rationale behind the EU border controls as modalities that allow for the governing of this area. Lastly, I will investigate the genealogy of three information and surveillance systems, by approaching them as policy instruments that allow for the coordination of the work of the different Member States‟ agencies dealing with border controls, and as capacity tools enabling the acceleration and diffusion of remote control.
The thesis is structured in three main parts. The first part starts by providing a historical overview of the steps that gradually led to the abolition of controls at the Member States‟ common borders and the institutionalization of free movement of persons in Europe. Then, it focuses on certain theoretical insights extracted from the work of Foucault, which are helpful for the understanding of the EU as an area of free movement of persons and security. The aim of this first part is to reveal the rationality and the problematization(s) relating to the governing of this „area‟. In other words, it aims, on the one hand, to answer questions such as who governs, what is governing, and what is to be governed in terms of the area of free movement of persons and security, and on the other, to reveal the threats and challenges that have to be addressed in order the governing of this area to be realized. In addition, this part investigates the interplay between free movement and security. It is argued that the main problematization deriving from free movement is its abusive use by certain
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individuals for illegal practices, at the expense of the collective interest. As it will be analyzed, the role of the security apparatus is to regulate and organize free movement, in order the problematizations stemming from this freedom to be addressed. Last but not least, the last section of this part introduces the methodological approach used in this thesis.
As a continuation of the first part, the second one interrogates the rationale behind the EU border controls, by approaching them as the means for the regulation and organization of free movement of persons. This part challenges the conventional understanding not only of border controls, but also of borders understood as the territorial limits of the Member States. It will be demonstrated that the rationale behind the EU border controls is to remotely control individuals who are traveling to and within the EU, in order the supposedly risky ones to be sorted out. More specifically, it will be argued that at the heart of remote control lies a preventive logic, which aims to proactively assess and address future potential risks for the internal security of the Member States, by targeting pre-established categories of supposedly risky individuals. For the clarification of the reflection proposed here, I will focus on the EU common visa policy and on the operation of Frontex.
Furthermore, the third part of the thesis draws attention to the role of technology in border controls. The interrogation of the role of technology is instrumental because on the one hand, technology is an important element for the enabling of remote control, and on the other hand, because it allows for the further coordination of the various Member States‟ agencies dealing with border controls and mobility in general. In that sense, technology enables further the governing of the EU as an area of free movement and security, as it allows for the coordination of the work of the agencies competent for the organization and regulation of this freedom. In this part, I will discuss first the interplay between technology, border controls and surveillance, and subsequently, I will analyze three information and surveillance systems, namely, the Visa Information System (VIS), the European Border Surveillance System (EUROSUR), and the Entry/Exit System (EES). As it will be demonstrated, these systems enable the acceleration and diffusion of remote control. At the same time, the operations of EUROSUR and the EES manifest a tendency towards a precautionary remote control, which does not only target the movements of third-county nationals that fall under pre-established risk categories – as in the case of preventive remote control – but the movements of all third country nationals who are
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somehow transformed into risky subjects. This tendency means that free movement in Europe, instead of being understood as a right, is increasingly perceived and „constructed‟ as generating security concerns.
Finally, the last section of this thesis will organize and interpret the research results by providing concrete conclusions, as well as recommendations for future research. All in all, this thesis aims to contribute to the academic research field of critical border studies (Parker and Vaughan-Williams et al. 2009, 2012). Its added value is that it challenges the “give-ness” of borders and border controls, and more importantly, it urges for a new conceptualization of border controls not only in terms of their function, but also in terms of their meaning and their societal implications. In other words, it does not only draw attention to the modus operandi of the EU border controls, but also to the way that they relate to the establishment, maintenance and governing of the EU as an area of free movement of persons and security, as well as to their impact on the realization of individuals‟ rights and freedoms.
10 Chapter 1
A Foucauldian approach to the study of the EU as an Area of Free Movement and Security
1.1. The abolition of internal border controls and the institutionalization of free movement
1.1.a. From the Single European Act to the Schengen Agreements
The free movement of goods, capital, information and services constituted the cornerstone for the gradual establishment of the European Economic Community which was initiated by the Treaty of Rome in March 1957. Nevertheless, the free movement of labor was the condition of possibility for its completion. Article 123 of the Treaty of Rome stressed the importance of the facilitation of “geographical and occupational mobility” of workers within the Community. However, Member States were initially reluctant in adopting and incorporating the legislation on workers‟ mobility into national law, due to public policy, security and health concerns (Guild 2001, p. 8). The economic decline in Europe which was initiated after 1973 and was crystallized in the early 1980s, triggered discussions on the competitiveness of the European economy, and revitalized the commitment for a common market (Ibid, p. 8, 9). These discussions resulted in a series of judgments of the European Court of Justice (ECJ) favoring the right of the individual to free movement, and to the signing of the Single European Act (SEA) on February 1986. As stated in the Article 13 SEA, the Member States decided to adopt all necessary measures for the gradual establishment of an internal market, which would “comprise an area without internal frontiers in which the free movement of goods, persons, services and capital” would be ensured (Official Journal of the European Communities 1987, p. 7).
The ratification of the SEA signaled the gradual liberalization of free movement. However, one of the prerequisites for this liberalization was the gradual abolition of the Community‟s internal borders. The latter should not be understood as borders serving one unitary purpose. There are borders relating to the movement of goods, services, capital, and borders concerning the movement of person. As far as the borders for movement of persons are concerned, their abolition encountered many obstacles, as it was perceived as generating security concerns such as transnational
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crime, fraud and terrorism. Such security concerns had led in June 1976 to the creation of the Trevi Group, which was set up as an intergovernmental network for the cooperation between the twelve then Member States, for the fight against terrorism and the coordination of policing in the Community in general (Bunyan 1993, p. 1). The work of the Trevi Group was based on a strictly non – Community context and its establishment signified the first attempt of the Member States to address jointly common security concerns (Hobbing 2003, p. 4).
The first however decisive step for the institutionalization of the free movement of persons and the abolition of internal borders took place one year earlier than the signing of the SEA, in the small village of Schengen which is situated at the point of intersection of the borders of Germany, France and Luxembourg. On June 14 1985, the governments of Belgium, the Netherlands, Luxembourg, France and the Federal Republic of Germany agreed on the gradual abolition of the controls at their common borders. The cooperation on the basis of short-term and long-term measures for the gradual abolition of border controls would take place on an intergovernmental basis. According to Article 17 of the Schengen Agreement, in the long term “the Parties shall endeavor to abolish checks at common borders and transfer them to the external borders”. In that sense, border controls would be gradually conducted only at the external borders of the Member States. On June 1990, the governments of the same countries signed the Convention Implementing the Schengen Agreement, which set a series of accompanying measures for the abolition of the internal border controls. Some of the Convention‟s objectives were: to set measures for the strengthening of the checks at the external borders (Title III, Chapter 2); to define the procedures for issuing uniform long-stay and short-stay visas (Title II, Chapter 3); to define the procedures for processing applications for asylum (Title II, Chapter 7); to set measures for police cooperation and mutual assistance in criminal matters (Title III); and to establish the Schengen Information System (SIS) (Title IV).
Broadly speaking, it could be argued that the cooperation between the Member States that were part of the Schengen area was based on two approaches. The aim was, on the one hand, to ensure that controls at the external borders would be governed by the same rules and would be based on the same standards, and on the other hand, to prevent criminals from taking advantage of the borderless area and escape internally (Hobbing 2003, p. 10). Until March 1998, border controls were
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abolished between the initial five Member States, plus Spain, Portugal, Italy and Austria (European Commission 2008, p. 6).
1.1.b. From the Amsterdam Treaty to the Integrated Border Management strategy
With the entry into force of the Amsterdam Treaty in May 1999, the Schengen Agreements and further rules previously adopted on the basis of these agreements were incorporated into the EU legal framework. The integration of the Schengen acquis into the EU legal framework meant that the cooperation between the EU Member States that formed the Schengen area would no more take place on an intergovernmental basis, but within the EU institutional and legal framework. Furthermore, in terms of the free movement of persons, the Amsterdam Treaty introduced Title IIIa “Visas, asylum, immigration and other policies related to free movement of persons”. Title IIIa authorized the Council to adopt all the necessary “measures aimed at ensuring the free movement of persons (be they citizens of the Member States or nationals of third countries travelling within the Union) […] in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration […] and measures to prevent and combat crime” for the gradual establishment of an area of freedom, security and justice (AFSJ) (Amsterdam Treaty, Article 2 (15)).
Practically, the Amsterdam Treaty placed under the first pillar1 the issues concerning border controls, visas, asylum, immigration and judicial cooperation in civil matters, while police and judicial cooperation in criminal matters remained under the third intergovernmental pillar. During the “transition period” of five years after the entry into force of the Treaty, the right of initiative in the matters transferred from the third to the first pillar would be officially “shared” between the Council and the Commission, despite the fact that such matters were de facto controlled by the former.
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The pillars structure/system was established by the Treaty on the European Union, also known as Maastricht Treaty, which was signed on February 1992 and entered into force on November 1993. The system was composed by the following three pillars: the European Community pillar, the Common Foreign and Security Policy pillar and the Justice and Home Affairs pillar. Issues under the first pillar were governed by the Community method, while issues under the other pillars were governed on an intergovernmental basis. The Treaty of Lisbon, which was signed on December 2007 and entered into force on December 2009, abolished the three pillars.
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However, after the end of the transition period, such matters would be governed by the Community method and not on an intergovernmental basis.
It is important to note at this point that the integration of the Schengen acquis in the EU legal and institutional framework does not mean that automatically all the EU Member States would become part of the Schengen area. Each Member State has to meet certain criteria, such as readiness and capacity for controlling its external borders on behalf of the other Schengen Member States (European Commission 2008, p. 5), and each Member State has the right to deny the abolition of the controls at its borders with the other Member States. In addition, there are countries – Iceland, Liechtenstein, Norway and Swiss – that although they are not EU Member States, they are part of the Schengen area. Until now, twenty three out of twenty eight EU Member States have abolished the controls at their common borders.2
Furthermore, the Schengen area is not characterized by territorial continuity. For example Greece, which is part of the Schengen area, does not have common land borders with the other Schengen countries. The internal borders should not be only understood as land borders. According to Article 2(1) of the Schengen Borders Code, the internal borders are defined as: “(a) the common land borders, including river and lake borders, of the Member States; (b) the airports of Member States for internal flights; (c) sea, river and lake ports of Member States for regular internal ferry connections” (Official Journal of the European Union 2006a, pp. 3-4).
It is worth noting that the Schengen acquis as incorporated in the EU framework manifests that the participant states rather than emphasizing on the facilitation of free movement, they focus on its control and they integrate issues like irregular migration, terrorism and cross-border crime under the same “security umbrella” (Huysmans 2004, p. 294). Free movement was being systematically accompanied by the expression of security concerns stemming from its liberalization, and freedom in general was being increasingly framed in terms of security. This is evident in the articulation of the Tampere European Council Conclusions: “the challenge of the Amsterdam Treaty is now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security” (Conclusion No 2).
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The EU Member States that are not part of the Schengen area are Ireland, the United Kingdom Rumania, Bulgaria and Croatia.
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Moreover, the European integration actually left only one border formed by the Member States‟ external borders, for the filtering of the unwanted aliens and the blocking of illegal activities. The 2002 Commission‟s Communication on integrated management of the EU‟s external borders acknowledged that the effective management of the Member States‟ external borders would increase their internal security, and that the prerequisite for the tackling of organized crime, terrorism and irregular immigration was the cooperation between Member States on border controls (Commission of the European Communities 2002, p. 2). Additionally, the same Communication recognized that the ineffective management of external borders would raise challenges for the internal security of Member States and of the Union as a whole (Ibid, p. 4). In that sense, the answer to the security concerns was deemed to be the pooling of the efforts of the different Member States‟ agencies dealing with border controls, and this led to the generation of the idea of an “Integrated Border Management” (IBM) strategy (Hobbing 2003, p. 10).
The definition of the EU‟s IBM strategy was provided by the 2006 Finish EU presidency. It consists of the following four dimensions: (a) Common border controls – checks and surveillance – including the necessary risk analysis and criminal intelligence; (b) common investigations of cross-border crime; (c) cooperation between different authorities in the field of border management at the national and international level; and (c) coordination and coherence of Member States‟ and European institutions‟ work in terms of border management (Finland‟s EU Presidency 2006). It is important to stress at this point that each Member State is responsible for the maintenance and the control of its external borders, and free to assign the controls at its external borders to the authorities of its choice in accordance to its national structures (Commission of the European Communities 2002, p. 8). In that sense, there is not a single European agency dealing with border controls, but a multiplicity of different Member States‟ agencies. From this multiplicity stems the principal difficulty of the Union, which refers to “the ability to organize between the Member States all the operational synergies which would permit action to be better coordinated and therefore a more homogenous level of security at the external frontiers” (Ibid., p. 4).
Therefore, the main challenge that the Union had and still has to address for the maintenance of the area of free movement and security is the coordination of the work of the different Member States‟ agencies dealing with border controls and
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mobility in general. At this stage, my aim is not to provide an exhaustive presentation of the institutional and technical instruments used for this coordination. However, it is worth noting that the legal and operational frameworks enabling this coordination are mainly – but not only - provided by the Schengen acquis and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (Frontex) accordingly. Last but not least, this coordination is further enabled by a number of technologically sophisticated databases and surveillance systems. Some of these systems will be analyzed extensively in the third chapter.
To summarize, the abolition of internal border controls and the institutionalization of the free movement of persons within the Schengen area were recognized by the European policy-makers as the cornerstones of the establishment and the viability of the common market and the EU in general. The gradual establishment of an internal borderless area meant that border controls would be transferred from the internal to the external borders of the Member States. In addition, the institutionalization of free movement of persons encountered many obstacles, due to the perceived security concerns stemming from this freedom. What is observed is a tension between freedom and security, and more specifically, a tendency towards the articulation of free movement in terms of security concerns. Finally, the answer to such security concerns is deemed to be the coordination of the work of the different Member States‟ agencies dealing with border controls and mobility in general.
1.2. From Discipline to Security and Free Movement
As discussed above, one of the essential characteristics of the common market and of the EU in general is the free movement of persons. In this section, I suggest a theoretical reflection based on the work of Foucault, for the conceptualization of this freedom. To do so, I introduce his method of analysis that emphasizes on governmental rationalities, techniques and practices employed by the “rulers” in order to govern the “ruled”. Then, I focus on the way that he approached the free movement, or, to use his own words, “circulation”. Last but not least, I interrogate the interplay between the notions of freedom and security.
I do not claim that Foucault‟s work sheds light upon all the aspects of the functioning of the EU as an area of freedom and security, or that it renders fully intelligible all the aspects relating to the free movement of persons in the EU. Instead,
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I argue that careful reading and a “translation” of his work provide valuable theoretical insights for the understanding of the functioning of the EU as an area of free movement and security. By “translation” I mean that I am not using the work of Foucault as a theory which will lead me to a certain hypothesis that I will then test throughout my analysis, but that I construe specific theoretical insights and ideas derived from his work. For the purposes of this analysis, I will mainly draw upon Foucault‟s Discipline and Punish: The Birth of Prison (1975), his two published annual courses, namely, Security, Population and Territory (1977-1978) and The Birth of Biopolitics (1978-1979), but also upon the work of scholars that have already elaborated on his ideas.
In the abovementioned contributions Foucault was mainly preoccupied with the genealogy of the modern state. He analyzed four different historical periods, namely, the antiquity and early Christianity, the early modern Europe, the eighteenth century beginning of liberalism, and the post-war forms of neo-liberalism in France, Germany and the USA (Gordon 1991, p.3). Genealogy does not mean an exhaustive and purely historical analysis, but a partial one in terms of trajectories of events, discourses and practices, which enables a researcher to unsettle and/or “denaturalize” the present (Walters 2002a, p. 562). By emphasizing on specific trajectories within a historical context, Foucault tried to understand and reveal techniques and practices for governing individuals and populations. In his earlier work, his analysis focused on techniques and practices employed within specific social spaces of confinement - such as the school, the factory and the prison – in order to shape and control the behavior of individuals.
Foucault argued that if power is to be conceived as the capacity to subject the agency of an individual, then the individual‟s body itself encompasses specific power relations (Foucault 1995, p. 24). The articulation “to subject the agency of an individual” has two interrelated meanings. It means, on the one hand, that an individual becomes subject to someone else by control and dependence, and on the other, that he/she becomes subject through tiding himself to his/her own identity. Such a subjectification is to be achieved through a form of power which “categorizes the individual, marks him by his own individuality, attaches him to his own identity, imposes a law of truth on him” and makes him ultimately a subject (Foucault 1982, p. 790). Furthermore, the categorization of individuals and the imposition of a “law of truth” upon them through the production and dissemination of knowledge as universal
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truth, serves to the production of not only subjected, but at the same time docile bodies. In other words, for Foucault such a technique aimed at the imposition upon individuals of a specific type of discipline on the basis of the teacher‟s, industrialist‟s, or inspector‟s standards and norms.
In his book Discipline and Punish: The Birth of Prison, Foucault dealt with the techniques and practices employed by the prison‟s inspectors in order to control and shape the behavior of the inmates. He did so by drawing upon the work of Bentham who first introduced the “panopticon” model. Bentham‟s work was published as a series of letters and an architectural design of a prison, in the middle of which was situated a tower enabling the inspector and his family to efficiently monitor the inmates (Elmer 2012, p. 22). The fact that the tower was situated at the center of the prison was enabling the effective panoptic surveillance of the inmates. Bentham was emphasizing on the effectiveness of the work of the inspector. However, Foucault‟s analytic focal point was not just the inspector(s), but also the effects produced by such a panoptic surveillance in the inmates‟ behavior3
. In other words, he was preoccupied with the techniques and practices employed by the inspector(s) for the “disciplinarization” of the inmates. Such a disciplinarization was to be achieved as inmates would assume that they are constantly under inspection (Ibid., p. 23). More importantly, because the panopticon induces in the inmates “a state of conscious and permanent visibility” (Foucault 1995, p. 201), they are self-disciplined without direct, but indirect and subtle coercive exercise of power by the inspector(s). To use Foucault‟s own words, the disciplinary mechanism enabled by the panopticon model “is a functional mechanism that must improve the exercise of power by making it lighter, more rapid, more effective, a design for subtle coercion for a society to come” (Ibid., p. 209).
What it is important to highlight from the above mentioned is the fact that Foucault analyzed surveillance as a technique and practice employed by the “rulers” – inspector(s) - in order to shape and control the behavior of the “ruled” - inmates. For Foucault, such an analysis could be also used for the investigation of techniques and practices of political rule over the entire society (Gordon 1991, p. 4). At the same time, such an investigation enables the revelation of the “rationality” of a specific
3 For an in-depth analysis of the differences between Foucault‟s and Bentham‟s work see, Elmer Greg,
„Panopticon-discipline-control‟, in: Ball Kirstie, Haggerty Kevin D. and Lyon David, Routledge
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government. Foucault defines broadly the term government as the “conduct of the conduct”, as the way in which the conduct of the individuals may be shaped and directed (Foucault 1982, p. 789-790). According to Gordon, rationality of government is “a way or a system of thinking about the nature of the practice of government (who can govern; what governing is; what or who is governed), capable of making some form of that activity thinkable and practicable both to its practitioners and to those upon whom it was practiced” (Gordon 1991, p. 4). Thus, Foucault was not mainly preoccupied with the notion of government, but with the “art of government”, in other words, with the question of who governs whom and what, what governing is, and how governing is to be achieved.
Furthermore, Foucault demonstrated that one of the main characteristics of modernity is a shift from a state primarily concerned with the exercise of sovereignty over its territory, to a state primarily concerned with the governing of the population that live and circulate within its territory (Elden 2007, p. 563). In addition, he argued that another principal element of modernity is the “governmentalization” of the state (Foucault 1991, p. 102). He defined governmentality as the ensemble of institutions, procedures, analyses, reflections, calculations and tactics that allow the exercise of a “very specific albeit complex form of power, which has as its target population, as its principal form of knowledge political economy, and as its essential means apparatuses of security” (Ibid, p. 103). A governmentality research focuses not only on the rationality of a government, but also on the apparatuses and devices employed for exercising power and addressing particular social problems (Haahr and Walters 2005, p. 14). According to Foucault, government is primarily exercised over “things” and not over territory. By “things” he did not mean inhuman objects, but men in their relation with other “things” as wealth, resources and territory, as customs and ways of acting and thinking, and as accidents and generally misfortunes as death (Foucault 1991, p. 93). In that sense – always according to Foucault - the right way to govern is to dispose these “things” in a “convenient” way for each of them (Ibid., p. 95). This complex refection is important and requires further clarification. To put it simply, there are multiple processes which take place within a society and which involve men, ethics, objects and events. To govern is to organize and regulate these processes in a right and conscious manner, in order to ensure that the interests of certain individuals are not subverting the collective interest, and in order to limit certain individuals‟ actions that are disrupting the “normal” course of these processes.
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The interrogation of free movement of persons as a social process is an illuminating example for the clarification of this reflection. Movement, or in Foucault‟s own words “circulation”, is a process within which various operations of human beings are taking place. It is a process within which further movements and interactions are put in a series of indefinite number of events – such as the number of boats that arrive on an island – that comprise an indefinite number of units, such as goods, capital, services and men (Ceyhan 2012, p. 40). In that sense, movement is a process within a society, involving subjects, objects, ethics and events, and satisfying the interests of individuals and the society as a whole. Yet, it would be a mistake to understand the movement as one single process. There are different types of movements, involving different subjects and objects. Thus, if we accept that free commerce and free movement in general are instrumental for economic and social growth, there has to be at the same time some sort of organization and regulation of the different types of movements, in order for the collective interest to be assured against certain individuals‟ interests that are satisfied by certain types of movement. In addition, such an organization and regulation is to ensure that the “normal” movement, as the collectively accepted course of different movements is not disrupted by the actions of individuals involved in certain types of “abnormal” movement.
According to Foucault, the central question of 18th century – the beginning of liberalism - was how to attenuate the degree of insecurity which was increased by the influx of criminals, beggars etc. in the town because of its spatial, administrative and economic opening, and its constitution as a “space of circulation” (Foucault 2004, p. 27, p. 33). The liberal “art of government”, in order to function, it has to ensure a certain number of freedoms, such as the freedom of circulation or movement (Foucault 2008, p.63). Such a freedom should be produced, but at the same time it has to be organized and regulated, in order not to be exploited by certain individuals, who by trying to satisfy their own interests, they undermine the collective one – insofar their interests are opposite to the collective one (Ibid. p. 65). In other words, the constitution of the town as a space of free circulation in order for economic growth to be realized raised security concerns, as certain individuals were abusively using this freedom so as to satisfy their own interests, at the expense of the collective one. Thus, one of the main problematizations that had to be addressed in order for the town as an area and/or space of free movement to be governed, was the organization and regulation of free movement, so as its abusive use to be constrained, and the collective
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interest to be satisfied. The governmental problematizations “define the threats and challenges to good governance and the adverse effects that can be expected from any failures or shortcomings” (Merlingen 2011, p.153). In the case of the town, the adverse effects of the failure to regulate and organize the free movement would be the subversion of the collective interest, and in general the disruption of the “normal” free movement by “abnormal” illegal activities.
The problematizations deriving from the free movement of persons are immediately related to the question of security. According to Foucault, the main question of security is “how to keep a type of criminality […] within socially and economically acceptable limits and around an average that will be considered as optimal for a given social functioning” (Foucault 2004, p. 20). Thus, the question of security regarding the abusive use of free of movement is to determine up to what point certain types of movement do not constitute a danger for the collective interest. Therefore, the task of the security apparatus is not just to constrain a certain type of movement, but to organize and regulate free movement through setting certain acceptable limits to this freedom. The security apparatus is to be understood not only as the assemblage of traditional security means, such as the law enforcement methods employed by the various security agencies, but as connecting physical phenomena and events such as crime with a set of measures, means, discourses and other events that are likely to occur in the future (Ceyhan 2012, p. 42). In that sense, the security apparatus can be broadly understood as a socio-technical assemblage of mechanisms used to monitor certain phenomena, calculate the possibilities of their occurrence in the future, set a certain degree of acceptability of these phenomena, and ultimately regulate them. According to Foucault, the functioning of the security apparatus can be divided in three stages. Firstly, an issue that raises security concerns is inserted in a series of probable events, secondly, the costs for addressing such an issue are calculated, and thirdly, instead of determining what is prohibited and what is not, an average level which is considered as optimal and a limit of acceptability are set (Foucault 2004, pp. 20-21).
From the above mentioned, it becomes clear that the security apparatus is intimately related to temporality, as it aims to statistically calculate and predict the degree of illegal activity at a given time in the future (Bigo 2008a, p. 96). Furthermore, when the security apparatus regulates the free movement of population within a territory, it does so by understanding population neither as a singularity nor
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as the sum of individuals, but as a statistical category upon which certain categories and norms are set (Ibid., p. 99). In that sense, the security apparatus monitors and gathers data about population on the move, and then creates risk categories of individuals through statistically calculating the possibilities of their engagement in illegal activities.
The categorization of individuals and the binary distinction between normal and abnormal behavior is a technique of the disciplinary mechanism discussed above in the case of prison. However, in the case of security such a categorization and normalization is different. While discipline operates on the basis of a pre-established norm, security works first by developing an understanding and assessment of normality, and then intervenes to preserve such normality. At the same time, while discipline determines what is normal and what abnormal behavior is, security makes a distinction between more or less normal, more or less dangerous, and more or less likely to occur (Ibid.). Moreover, while in the case of discipline a specific space is circumscribed – such as the prison – in order for the disciplinary mechanism to function, security expands and “let things happen”, as its essential function is not to prohibit – as law – nor to prescribe – as discipline – but to regulate through possibly using instruments of prescription and prohibition (Foucault 2004, pp. 67-69).
Thus, firstly, security is different from discipline. Security is broader than discipline and may or may not encompass instruments of prescription that may or may not lead to discipline. Secondly, and more importantly, security is intimately related with free movement and freedom in general. Its function is to regulate free movement, in order to ensure that its exploitation by certain individuals for illegal purposes does not subvert the collective interest and safety. However, it is very important to stress at this point that it would be a mistake to try to balance the concept security with the one of freedom. Freedom and security are not analogous concepts and they cannot be weighed against each other (Guild, Carrera, Balzacq 2008, p. 8).
Freedom is a fundamental right and a value, while security is not a value as such, but the means to protect freedom through its organization and regulation. Furthermore, the framing of security as protection, safety and ultimately survival is also problematic because security in that way is actually framed as the first freedom, which is the freedom from fear. Security is then conceived as a collective common good and as the first freedom, as life exists only if survival exists (Bigo 2006, p. 39). Yet, the problem that immediately arises is that such a framing may justify illiberal
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practices under the name of security (Bigo 2010, pp. 398-399). Such practices constrain freedom instead of protecting it from its abusive use. Therefore freedom in general and free movement more specifically are intimately related to security. The aim of security is to organize, regulate and ultimately protect freedom against its abusive use.
1.3. Rationality and Problematization(s) of the Government of the Area of Free Movement of Persons and Security
The previous section introduced a Foucauldian approach for the understanding of free movement as a social process. What it was argued above is that the main problematization deriving from the free movement of persons is the abusive use of this freedom for illegal practices, at the expense of the collective interest. My aim in this section is to introduce the line of thought that I will follow in the course of this thesis, and to demonstrate how the above theoretical discussion may apply concretely in a study of the EU as an area of free movement of persons and security. Instead of departing from the assumption that the EU is a fixed political entity within the international system with fixed territorial and administrative boundaries, I approach the EU as an area, a space characterized by a multiplicity of actors, processes and networks.
First of all, as demonstrated in the first section, the institutionalization of the free movement of persons was deemed by the European policy-makers as instrumental for the establishment of the internal market and the further European integration. In addition, as it was argued in the second section, movement or in Foucault‟s own words “circulation” is a process involving a multiplicity of subjects, objects, ethics and events. To govern is to organize and regulate different social processes, such as movement, in order to protect the collective interest. Thus, within the area of free movement and security, to govern is to organize and regulate the free movement, in order to protect the collective interest which is satisfied by the “normal” movements, by blocking the “abnormal” ones which are related to illegal activities.
The liberalization of the movement of persons within the EU was framed as generating security concerns such as crime and terrorism offences, but also irregular migration. This is evident in the presidency conclusions of the 1999 Tampere European Council which called for cooperation between the Member States to combat
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“trafficking in human beings and drugs as well as terrorism” (Conclusion No. 43) and stressed the “need for a consistent control of external borders to stop illegal immigration and to combat those who organize it and commit related international crimes” (Conclusion No. 3).
As far as immigration is concerned, Huysmans argues that it has become a „meta-issue‟ in Europe, meaning a phenomenon which is articulated as a cause of multiple problems like the weakening of national tradition and societal homogeneity, and a link between different phenomena such as terrorism and transnational organized crime (Huysmans 2000, p. 761). Such an articulation is evident in the 2003 European Security Strategy: “cross-border trafficking in drugs, women, illegal immigrants and weapons accounts for a large part of the activities of criminal gangs. It can have links with terrorism” (Council of the European Union 2003, p. 4). The link between crime terrorism and immigration is also evident in the 2005 Hague Programme for the strengthening of freedom, security and justice in the EU: “The security of the European Union and its Member States has acquired a new urgency, especially in the light of the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2011. The citizens of Europe rightly expect the European Union […] to take a more effective, joint approach to cross-border problems such as illegal migration, trafficking and smuggling in human beings, terrorism and organized crime, as well as the prevention thereof.” (Official Journal of the European Union 2005a, p. 1).
Therefore, in terms of the area of free movement and security, the main problematization to be addressed is the abusive use of this freedom for illegal activities that form a security continuum which links crime, terrorism and irregular immigration. On the one hand, the freedom of movement has to be “produced” for the social and economic growth of the Union, and on the other hand, it has to be organized and regulated for its abusive use to be constrained. Furthermore, if the EU is to be governed as an area of free movement of persons and security, then the governmental rationality encompass all the actors who are to organize and regulate free movement, all the subjects, objects and processes that are to be governed, and all the mechanisms that enable such a government to be realized. Thus, what is at stake within this area is the question of how to regulate and organize free movement, and how such a social process is problematized and becomes practically manageable.
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The abolition of internal border controls means that the only border left for the organization and regulation of free movement is the Union‟s external border which is formed by the Member States‟ external borders. As it will be demonstrated in the next chapter, such an organization and regulation is to be achieved through the filtering of individuals on the move and the sorting out of the supposedly “risky” ones. Because of the absence of a centralized European bureaucracy as in the case of the nation-state, the Union‟s external border is not an object controlled or governed by a “single overarching political center” (Walters 2002a, p. 568). Walters argues that because of this absence, the EU instead of establishing a European centralized agency dealing with the Union‟s external border tries to harmonize the activities of the different Member States‟ agencies dealing with borders (Ibid., p. 569).
For example, as it will be analyzed in the following chapters, Frontex does not aim to replace Member States‟ agencies, but to coordinate their operation. The same applies for the consulates of the Member States in third countries. They are not replaced by a single European consulate, but their operations are coordinated through the network of immigration liaison officers (ILO), and through various databases where information is stored about individuals who wish to travel to and within the EU. Thus, despite the fact that the Schengen acquis is the legal basis providing the EU competence in the area of border controls, there is not a single European authority responsible for the control and maintenance of the Union‟s external borders, or a single European authority dealing with mobility issues. Therefore, within the area of free movement and security, what is to be organized and regulated is the free movement, and what is to be coordinated is the decentralized network of the different Member States‟ authorities dealing with border controls and mobility. Such coordination is to be achieved through common policies such as the visa common policy, through the work of Frontex, and through the operation of various information and surveillance systems that allow for the exchange of information between the different Member States‟ authorities.
In Foucault‟s analysis of the town as a space of circulation, the main question of security was how to organize and regulate this circulation. In the context of the EU, responsible for this task is the decentralized network of Member States‟ authorities described above. The means in order such an organization and regulation to be realized are border security measures that enable border checks and the surveillance of individuals that are moving. Although questions relating to border controls and
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surveillance will be extensively analyzed in the second and third chapter of this thesis, some preliminary ideas must be briefly discussed here. According to Guild, borders, like individuals, are on the move (Guild 2001). More accurately, Guild argues that the borders actually “follow” the individuals while they are moving, as they are not only activated at, but also before and beyond the territorial edges of the state. In that sense, border controls are not only taking place at the actual territorial borders of the Member States, but also before a person reach them, at the consulates of the Member States in third countries, where non-EU citizens who wish to travel to the EU may apply for a visa. The portrayal of border controls becomes more complicated if we take into account the different information and surveillance systems developed by the EU for the monitoring and filtering of travelers.
As in the case of Foucault‟s panopticon, information and surveillance systems enable the indirect and subtle exercise of power by the various Member States‟ agencies dealing with border controls and mobility – the “inspectors” of the free movement of persons in the EU. Scholars like Engbersen and Broeders have argued that the panopticon Europe is not a “factory of correction” as in the case of Foucault‟s prison, but a “factory of exclusion” (Engbersen 2001, p. 242, Broeders 2007, p. 74). They stressed that border security measures such as information and surveillance systems do not aim at the disciplinarization of the unwanted individuals – like irregular immigrants - on the basis of social accepted standards, but at their exclusion. While such an argument is correct, and despite the fact that there are a lot of differences between Foucault‟s panopticon and panopticon Europe, it depicts only partially what the panopticon Europe and border controls in general are capable for.
Information and surveillance systems are intimately related to border controls as they allow for the proactive monitoring of the individuals travelling to and within the EU. Border controls are the means for the effective organization and regulation of the free movement in Europe. As it was demonstrated in the second section, for Foucault, the essential function of security in terms of movement/circulation is its organization and regulation. Thus, border controls are intimately related with the question of security. As it was also analyzed above, security is different and broader than discipline. Discipline prescribes, prohibits and ultimately produces docile bodies, while security organizes and regulates, through prescription and prohibition mechanisms. Therefore, the aim of security through border controls is to regulate and
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organize free movement, and such a regulation and organization may lead to the disciplinarization of individuals on the move.
What arguments like the aforementioned fail to capture is that the disciplinarization of individuals on the move does not necessarily mean that their agency is subjectified – through monitoring, mentoring and disseminating knowledge as universal truth - on the basis of pre-established norms, but that their behavior is conducted and their movements are organized and regulated through the operation of specific mechanisms. Individuals‟ behavior is conducted by the setting up of certain procedures that they have to follow in order to travel to and within the EU. Then on the basis of such procedures, individuals‟ data are collected for the assessment of the risk that each one individual may embody. Finally, through this assessment the “inspectors” of free movement in Europe authorize or not individuals‟ access to the territories of the Member States. In other words, the aim of panopticon Europe is not to subjectify the agency of travelers, but to conduct their behavior and to establish categories of “trusted” and risky “travelers”, in order to manage their movements through more or less „strict‟ controls and surveillance, that may ultimately lead to their exclusion or inclusion. Therefore the task is not exclusively “transformative” but mainly “managerial” (Rose 2000, p. 331), and is to be accomplished through the organization and regulation of free movement.
An example could be the visa application procedure that has to be followed by third country nationals who need to carry a visa when crossing the external borders of the Member States. To follow such a procedure is actually to behave in an “appropriate” manner. Article 32 of the Community Code on Visas sets all the reasons for visa refusal (Official Journal of the European Union 2009). All these reasons have to do with the failure of the visa applicant to follow correctly the bureaucratic procedures and to submit the correct and valid documents, except for the following two: (a) if an alert has been issued at the SIS for the person applying for a visa; (b) if the person applying for a visa is considered to be a threat to public policy, internal security, public health or international relations of any of the Member States. Thus, firstly, third country nationals who are subject to the visa requirement should follow a bureaucratic procedure during which – as it will be discussed in the second chapter – various information such as the purpose of their journey, as well as their personal data will be collected (Ibid., pp. 15-16). Then, on the basis of these data, the competent for the examination of the visa application authorities assess the risk – immigration or
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security risk - that an individual may embody (Ibid., p. 12). Finally, after the assessment of the “riskiness” of each individual, visas are issued or refused. In that sense, the whole visa procedure induces the disciplinarization of third country nationals who want to travel to and within the EU, as it obliges them to behave “appropriately”. However, this does not mean that the individuals are subjectified and that their agency is transformed. It just means that individuals are obliged to behave in a specific manner, by following specific procedures that facilitate the organization and regulation of free movement, through the filtering and sorting out of the supposedly “risky” subjects.
All in all, the aim of this section was to demonstrate how theoretical insights derived from the work of Foucault can be used concretely for the study of the EU as an area of free movement and security. It was argued that for the governing of this area, the main problematization to be addressed is the abusive use of free movement by certain individuals for illegal practices, at the expense of the collective interest. This problematization is to be addressed through border controls, exercised by a decentralized network of Member States‟ agencies. The coordination of this network is to be achieved through the setting up of policies such as the visa common policy, through the work of Frontex, and through the operation of information and surveillance systems that collect, store, process and allow for the exchange of information. In the next two chapters, I will interrogate the EU border controls in order to further investigate how the aforementioned problematization is to be addressed, and I will analyze the policy instruments that allow for the coordination of the work of the different Member States‟ agencies dealing with border controls and mobility in general. However, before proceeding further with the analysis, I will first introduce the methodology used for the purposes of this thesis.
1.4. Methodology: Discourse, Genealogy and the Policy Instruments Approach
In terms of methodology, the thesis draws upon a governmentality research approach understood as a form of political analysis, which combines discourse analysis with a focus on the history of governing (Haahr and Walters 2005, p. 5). In other words, a governmentality research approach aims to reveal particular rationalities and problematizations of government, as well as assemblages of apparatuses and socio-technical devices used for exercising power and addressing
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specific governmental problematizations. The thesis deploys a governmentality research by relying firstly on discourse analysis, secondly on genealogy and lastly on the policy instruments approach.
Regarding discourse analysis, I will emphasize on the materiality of discourse, “not as a mere reflection of an underlying „real‟ world, but as a constitutive dimension of reality” (Ibid., p. 6, 14). Discourse is not to be understood as ideology, rhetoric and language, but as a constitutive action bringing objects, subjects and concepts into being (Malvig 2006, p. 350). Thus, it is to be analyzed at its own manifest level and not as an expression of something else (Ibid.). In that sense, by carrying out a discourse analysis of EU policy documents, legislation and administrative-technical documents concerning the AFSJ, this thesis reveals on the one hand the rationality and the problematizations relating to the governing the EU as an area of free movement and security, and on the other, the means for such problematizations to be addressed.
Furthermore, by focusing on the “history of governing”, a governmentality research approach does not provide an exhaustive history of the “art of government”, but a partial one. It is not exactly a history, but rather a genealogy. The latter is conceived as a partial historical analysis that focuses on specific trajectories, practices and discourses, allowing the researcher to unsettle and/or denaturalize the present (Walters 2002a, p. 562). In other words, a genealogical perspective does not aim to reconstruct a totalizable past, but critically to understand present in a non-conventional way, by emphasizing on specific trajectories within a historical context (Haahr and Walters 2005, pp. 16-17). In the next chapters, I approach the EU border controls through a genealogical perspective. By genealogical perspective I mean that I am not interested in an exhaustive history of the EU border controls, but that I investigate them in terms of two specific trajectories. First, I interrogate the EU visa policy and the work of Frontex, and then I focus on the “digitization” of border controls. Such an analysis allows me to “denaturalize” border controls by demonstrating – contrary to the conventional understanding – that they are not only taking place at, but also before and beyond the territorial edges of Member States. Ultimately, such a reflection enables me to question the “give-ness” not only of border controls, but also of borders as such.
Moreover, Frontex and the information systems that will be examined below are approached as policy instruments, for the coordination of the decentralized
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network of Member States‟ agencies dealing with border controls and mobility. Unlike discourse analysis and genealogy, the policy instruments approach is less familiar to students of EU and security politics, and requires additional specifications. This approach was first introduced by Lascoumes and Le Galès (Lascoumes and Le Galès 2004). According to them, a policy instrument is “a device that is both technical and social, that organizes specific social relations between the state and those it is addressed to, according to the representations and the meanings it carries. It is a particular type of institution, a technical device with the generic purpose of carrying a concrete concept of the politics/society relationship and sustained by a concept of regulation” (Lascoumes and Le Gales 2007, p. 4). In addition, for Balzacq a policy instrument is “an identifiable social and technical dispositf or device, embodying a specific image of „social reality‟, through which public action is configured in order to address an issue” (Balzacq 2008a, p. 11). Therefore, a policy instruments approach focuses on socio-technical devices which structure the relationship between rulers and ruled, and which are used to address a specific social issue. In addition, policy instruments constitute “contested forms of knowledge” on the exercise of social control (Lascoumes & Le Galles 2007, p. 11), and they allow for the stabilization and coordination of collective action (Ibid, p. 9).
Such an approach is closely related to a governmentality research as it allows the revelation of devices used by the governmental apparatuses, in order to render the population and the social processes to be governed knowable, and in order to coordinate their work for the effective exercise of such a government. In other words, policy instruments refer to what Haahr and Walters call “assemblages of apparatuses” and socio-technical “devices” for exercising power and addressing specific governmental problematizations (Haahr and Walters 2005, p. 14). Information and surveillance systems can be understood as policy instruments that enable the collection, storage, analysis and exchange of information on individuals on the move, and at the same time, as policy instruments that allow for the coordination of the work of the different Member States‟ agencies dealing with border controls and mobility in general. The same applies for Frontex as on the one hand, one of its main tasks is risk analysis based on the collection and exchange of intelligence on the situation at the external borders of Member States, and on the other, as it aims at the operational coordination of Member States‟ agencies dealing with border controls.
