Freedom, wherever it existed as a tangible reality, has always been spatially limited. This is especially clear for the greatest and most elementary of all negative liberties, the freedom of movement; the borders of national territory or the walls of the city-state comprehended and protected a space in which man could move freely. Treaties of international guarantees provide an extension of this territorially bound freedom for citizens outside their own country, but even under these modern conditions the elementary coincidence of freedom and a limited space remains manifest. What is true for freedom of movement is to a large extent valid for freedom in general. Freedom in a positive sense is possible only among equals, and equality itself is by no means a universally valid principle but, again, applicable only with limitations and even within spatial limits. Hannah Arendt, On Revolution, 1963 Contemporary challenges to traditional concepts of security, and especially to the distinction between internal and external security, has stimulated justifications across Europe for a significant increase in state practices involving intrusive surveillance, policing, and restrictive measures toward people in general. (1) In some instances, this change may have resulted in the erosion of civil liberties, human rights, and the rule of law. Therefore, the practices implementing the Schengen borders regime merit special attention.
The Schengen agreement of 1985 and the Schengen Convention of 1990 that implemented it (2) were intended to establish, through an intergovernmental approach, (3) the application of "the principle of the free movement of persons" within the European borders. (4) The Single European Act, which came into effect on July 1, 1987, by introducing article 14 into the EC Treaties (formerly, article 8a), stipulated that the European Community should adopt measures aimed at achieving "a market without frontiers"; that is, an internal market. Article 14.2 states:
The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty. Thus, an internal market should consist of an area without qualitative or quantitative barriers in which the free movement of persons, among the other three freedoms of movement, should be ensured and fully respected under certain circumstances. (5)
It is also important to recall that it was not until May 1, 1999, when the Amsterdam Treaty came into effect, that Schengen became part of the EU machinery (6) and the section dealing with the Schengen borders acquis (7) was incorporated within the first pillar. A protocol annexed to the Amsterdam Treaty finally integrated the Schengen acquis into the framework of the European Union, including the decisions and declarations adopted by the executive committee established by the 1990 convention.
Looking at the implementation by member states of some of the measures adopted under the Schengen regime, (8) however, a different path has been taken from the one carefully settled in the EU Treaty (TEU) structure (9) as a consequence of the predominance of claims about the need for security over claims about the conditions of freedom. (10) In some instances, member states have unilaterally reintroduced border controls and checks on individuals, justified on grounds of "special security concerns" or a "state of emergency." Thus, not only has one of the main goals of the internal market, the freedom of movement of persons, been undermined, but so, too, have other fundamental rights and freedoms provided at the European as well as at international level. Additionally, the categories of people affected by these restrictive policies cover not only those who qualify as third-country nationals or "others," (11) but also EU citizens in general.
The provision used by member states has particularly been article 2.2 of the Schengen Convention, which has articles 62.1 and 64 of the EC Treaty as its legal basis. (12) This article states in its first paragraph that no checks on persons shall be carried out when crossing internal borders, but in its second paragraph it allows for the unilateral introduction of border controls at internal borders "where public policy or national security so require" after consulting the other Schengen contracting parties. The consultation requirement does not have to be followed in those instances when the state deems it necessary to act immediately: the state may reinstate checks when an "extreme urgency" exists. (13) Even though this provision must be used exclusively under the exceptional circumstances of an emergency and for a limited period of time, the record of states' practices suggests that their use of the provision has not been so much exceptional as quite common.
Critical questions have been raised concerning the continued noncommunitarization of article 2.2, which falls completely outside the EU institutional framework. (14) The fact that this provision is still of a purely intergovernmental nature explains the lack of judicial and parliamentary accountability for the use of this clause so far. In most of the cases, public information is lacking about when and how the states' authorities have implemented it. In fact, looking at the public server of the EU Council, available information about every single application of the exceptional clause is less than exhaustive. (15) Another problem concerns the lack of checks and balances for the proportionality of the temporarily resettled border controls and how to protect the respect of human rights, civil liberties, and the rule of law. The full application of the right of free movement of persons provided by article 18 of the EC Treaty and article 45 of the European Charter of Fundamental Rights, (16) as well as article 15 of the European Convention of Human Rights (ECHR), need to be guaranteed and considered as a high policy priority. (17)
In addition, it is significant that "these checks are applied flexibly as the situation requires." (18) The law-enforcement authorities at the national level have wide discretion to determine both the existence of a threat to public policy and national security and the security standards to follow in the particular event. The table shows the use that some of the contracting states have made of article 2.2, citing concrete events.
A good example of the often-unilateral use of article 2.2 was action by Italy on the occasion of the G8 meeting in Genoa, July 20-22, 2001. (19) Claudio Scajola, the interior minister, told the chamber of deputies that use of this article and the exercise of border controls had led to 2,093 people being refused entry into the country. (20) Indeed, according to NGOs and human-rights organizations reporting directly from Genoa, (21) many people trying to enter Italy were not checked at the border points on a case-by-case basis, as required by the Schengen acquis, but were blocked as a group at the Italian frontier. Additionally, the security framework and actions by police used during the event have been identified as failing to meet the principle of proportionality and represented a good example of what a "police state" may look like. (22)
Spain is another example of the wide discretion that is often left in the hands of the states' institutions. The Spanish national authorities have used the exceptional clause more than any other Schengen state so far. Measures on border controls were (re)introduced not only during the Spanish presidency of the European Union (at the council meetings in Seville and Barcelona) but also in situations when the grounds for emergency were not clear in order to apply the "exceptional" article. Similar measures were taken when in VIPs were moved to the Aran Valley during the Christmas holiday season. (23)
The main negative aspect of the application of article 2.2 is that once border controls have been reestablished, everyone entering the country is exhaustively checked. Since there is often a large-scale influx of travelers, the necessity to check a majority or all of them may lead to a near-total block of the border. The restrictive measures therefore affect not only "suspects" but anyone trying to cross that frontier, for whatever reason. (24) Article 1 states: "Any Member State which applies article 2.2 of the Schengen Convention shall take every step to limit, as far as possible, the inconvenience caused by checks on travellers." In our opinion, it is highly uncertain whether the instruments adopted to achieve this goal will, in practice, be effective.
Protests and demonstrations on occasions such as European Council meetings and comparable events have become one of the main targeted activities when article 2.2 has been applied by member states. The huge demonstrations that occurred during the EU-U.S. summit in Gothenburg represented the starting point for the development of a European Union policy dealing with these matters. (25) Consequently, the Justice and Home Affairs (JHA) Council meeting of July 2001 dealt for the first time with the operational measures necessary to reduce the risk of serious disturbances of law and order, including the need to develop the collection, analysis, and exchange of data between national authorities. (26) Recently, an action plan has been presented by the Italian presidency of the European Union to put protesters or "suspected troublemakers" under surveillance. (27) The main idea of the draft council resolution on security at European Council meetings is the denial of entry to a state to people falling into those categories. But the determination that they constitute potential disturbances of law and order is, where a protest is planned, equally a denial of their ability to exercise their free-movement rights.
When we look at the provisions of the draft council resolution, (28) we see that this proposal...