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Citizenship at Europe's Borders: Some Reflections on the Post-colonial Condition of Europe in the Context of EU Enlargement

2005; Taylor & Francis; Volume: 9; Issue: 1 Linguagem: Inglês

10.1080/1362102042000325379

1469-3593

Enrica Rigo,

Migration, Refugees, and Integration

Abstract This article proposes a critical approach to European citizenship through the analysis of the legal dispositives which define the external borders of Europe in the context of EU enlargement. It examines the deterritorialization of the EU's external and internal borders through an analysis of the immigration laws of Poland, Romania and Bulgaria which have all been recently modified in order to meet the requirements of the Schengen aquis. By comparing these legislative changes with the legal mechanisms of colonial systems, the article suggests that the material process of the constitutionalization of EU citizenship highlights a post-colonial condition of the European polity. Acknowledgements The research for this article was conducted at the European University Institute, Florence, Italy, in the framework of the European Forum 2003–2004 "Constitutionalism in Europe". The author wishes to thank the participants of the forum for the stimulating discussion on a draft version of this article, as well as Nicholas Dines for his patient help with the language revision. Notes 1 The deterritorialization of law, the rupture of the coincidence between law and sovereignty and the calling into question of the legality/illegality binary code are "tools" which have been used by the theorists of legal pluralism to analyse law transformations (for example, see Teubner, Citation1997). In contrast to these approaches, my aim is not to show the lines of discontinuity between, for example, private and public powers or to argue for a "softer" understanding of law, but rather to underline aspects of continuity and incongruence. 2 There is a vast literature on post-colonial studies. For an introduction, see Young (2003) and Childs and Williams (Citation1997). On the post-colonial condition of Europe, see CitationMezzadra and Rahola (forthcoming) and Chakrabarty (Citation2000). 3 The analysis of the legal acts approved in Poland, Romania and Bulgaria is based on official English translations accessible at the OCSE Office for Democratic Institution and Human Rights, Warsaw, Poland. These translations are consultable at www.legislationline.org. 4 Similar arguments are made, for example, by Carens (Citation1992) and Dummett (Citation1992). For further examples, see Schwartz (Citation1995). 5 "Schengen agreements" here refer both to the first Schengen agreement signed by Germany, France and Benelux on 14 July 1985 and the agreement of 19 June 1990 which applied Schengen I. All the member states with the exception of United Kingdom and Ireland have gradually joined the Schengen agreements. 6 For a recent and extensive analysis of the European decision-making system on immigration and asylum policies, see Fletcher (Citation2003) and Monar (Citation2003). 7 The tautological definition of concepts such as "public order" and "national security" in relation to migration laws has also been underlined by Bigo and Guild (Citation2003). 8 The Emergency Ordinance on the Regime of Aliens in Romania also provides for a particular administrative measure of authority based on a declaration of undesirability which can be ordered "against an alien who performed, performs or there are strong evidence that he intend to perform such activities as to endanger the national security and public order" (art. 83(1)). An alien can be declared undesirable for a period from five to 15 years with the possibility of extending the term. 9 Referring to the Kantian idea of territorial domain, Schmitt underlines the tendency to perceive private and public property as two separate concepts. This point would need further investigation which the length of the article does not allow me. On this point, see Bixio (Citation1988). 10 For an alternative view, see Maine (Citation1870). 11 Doc. 1009/02 FRONT 58 COMIX 398, 14 June 2002. 12 For the latest developments in negotiations over readmission agreements with third countries, see the annual Commission's Regular Reports on Progress Towards Accession available for each candidate states. 13 According to Frank P. Weber, the historical precedents of readmission agreements were those signed by Germany in 1920–1921 with Poland, Russia, Latvia, Lithuania, and Estonia in order to facilitate mass deportation (Weber, Citation1996). 14 The historical precedent of carrier's liability can be found in the penalties imposed on shipping companies which transported without permission convicts to and from the colonies of the British Empire. Jeremy Bentham describes the evolution of this kind of penalties with regard to the penal colony of New South Wales (Bentham, Citation1803). 15 According to Foucault's analysis, the "art of government" differs from sovereignty in the sense that "whereas the doctrine of the prince and the juridical theory of sovereignty are constantly attempting to draw the line between the power of the prince and any other form of power, because its task is to explain and justify this essential discontinuity between them, in the art of government the task is to establish a continuity, in both an upwards and a downwards direction" (Foucault, Citation1991, p. 91). 16 On "conditionality" in migration policies, see the Communication from the Commission to the Council and the European Parliament integrating migration issues in the European Union's relations with third countries, COM(2002) 703 final, 3 December 2002. 17 International Helsinki Federation for Human Rights, Annual Report, 1999. 18 According to the International Helsinki Federation for Human Rights, it is a standard practice in Bulgaria to detain asylum seekers and so-called "bogus" asylum seekers in the transit zone of Sofia airport and in a centre in nearby Drujba. This practice often exceeds the maximum limit of 24 hours prescribed by the Ministry of Interior (International Helsinki Federation for Human Rights, Annual Report, 1999). 19 European Commission, Regular Report on Bulgaria's Progress towards Accession, 2003. 20 European Commission, Comprehensive Monitoring Report on Poland's Preparation for Membership, 2003. 21 Phare (2001), Strengthening the management of the migration phenomenon in Romania, RO-0107.17. A recent plan presented by the British government considers the relocation of centres for the detention of aliens outside the territory of member states a strategy for the better management of protection seekers in order to avoid the risk of abuses of the legal framework of asylum. The project includes financial aid for the construction of Transit Processing Centres in the countries of origin of migrants and asylum seekers as well as in countries of transit. The intended function of such centres is to deter "those who enter EU illegally and make unfounded asylum applications". Furthermore, "it is for consideration whether the centre would also receive illegal migrants intercepted en route to the EU before they had lodged an asylum claim but where they had a clear intention of doing so" (New international approaches to asylum processing and protection, attachment to a letter from Tony Blair to Costas Simitis, 10 March 2003). Although the UK proposal has not been adopted by the European Union and has been contested by governments of other member states, it seems to be consistent with the tendency of pushing Europe's borders further east. 22 On the temporal dimension of borders, see also Westin (Citation1998). 23 On indefinite temporariness, see also Rahola (Citation2003). 24 European Commission, Regular Report on Romania's Progress towards Accession, 2003. 25 Art. 1(1), Emergency Ordinance no. 112 Referring to the Punishment of Some Action Committed Abroad by Romanian Citizens or by Person Without Citizenship Residing in Romania, 30 August 2001. 26 European Commission, Information note on the free movement of workers in the context of enlargement, 6 March 2001. After 1 May 2004 restriction to the free circulation and settlement of workers has not been applied only for the citizens of Cyprus and Malta, while the United Kingdom and Ireland have allowed for the free entrance of workers arriving also from other new member states. 27 European Commission, European Citizens and Freedom, Security and Justice, a Qualitative Survey of Citizens of the 15 Member States and of the 13 Applicant Countries, March 2003. 28 Of course, this is true for countries the territory of which has been divided after the collapse of the communist bloc, but form of circulation of workers existed even among the communist countries (Lascko et al., 2002). However, after 1989 Central and Eastern European countries did not have stricter regimes on border management and migration policies. 29 For an extensive analysis of the Hungarian Status Law and of debates on similar acts under discussion in other countries, see Fowler (Citation2002).