A Patchwork of Intra-Schengen Policing: Border Games over National Identity and National Sovereignty
| Author | Maartje Van der Woude |
| DOI | 10.1177/1362480619871615 |
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| Subject Matter | Articles |
https://doi.org/10.1177/1362480619871615
Theoretical Criminology
2020, Vol. 24(1) 110 –131
© The Author(s) 2019
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DOI: 10.1177/1362480619871615
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A Patchwork of
Intra-Schengen Policing:
Border Games over
National Identity and
National Sovereignty
Maartje Van der Woude
Van Vollenhoven Institute for Law, Governance & Society, Leiden University, The Netherlands
Abstract
By focusing on these “article 23 SBC checks”, this article will argue that the Schengen
Agreement and the Schengen Border Code are—and always have been—incomplete
policy responses to the tension that was felt from the very beginning of “Schengen”
between (national) security and freedom of movement. In fact, by drawing from the
work of Wonders on the flexibilization of state power which interlinks with Mofette’s
and Valverde’s work on jurisdiction and interlegality as well as with the ideas around
conscious incompleteness of agreements and regulation, the article will argue that
member states as well as enforcement agencies have been consciously using the interplay
between the normative regime on the European level and the normative regime and
implementation and execution thereof on the national and local level.
Keywords
Border-crossing, borders, migration, Schengen, sovereignty
Introduction
The asylum and migration crisis that came to a head in Europe in the summer of 2015
was years in the making. Indeed, others have argued that such crises have historically
marred European co-operation in asylum and migration policies (Alink et al., 2001;
Schierup et al., 2006: 4). Migration scholars have highlighted that migration policy, both
Corresponding author:
Maartje Van der Woude, Leiden University, Leiden Law School, Van Vollenhoven Institute for Law,
Governance & Society, Steenschuur 25, Leiden, 2300 RA, The Netherlands.
Email: m.a.h.vanderwoude@law.leidenuniv.nl
871615TCR0010.1177/1362480619871615Theoretical CriminologyVan der Woude
research-article2019
Article
Van der Woude 111
at the national and international levels, seems to be particularly prone to failure due to a
combination of weak monitoring, lack of policy harmonization, low solidarity and
absence of central institutions (Castles, 2004; Hollifield et al., 2014). The combination
of low harmonization, weak monitoring, low solidarity and lack of strong institutions in
EU migration policy became increasingly unsustainable during the 2015 crisis. As Jabko
and Luhman (2019) rightly observe, the arrival into the EU of hundreds of thousands of
refugees from the Syrian conflict in 2015 engendered a humanitarian crisis and threat-
ened two institutions of border control: the Schengen Area and the Dublin Convention.
The Schengen Area is an area without internal borders, while the Dublin Convention
governs how asylum seekers are registered upon entering EU territory. Under Schengen
and Dublin, states retained the right to unilaterally re-introduce border controls and to
return asylum seekers to the first country of entry in order to protect an “essential aspect
of sovereignty”; that is, control over frontiers (Schain, 2009). In 2015 however, the
Dublin system ceased to be effective. Many member states lacked the capacity or the will
to process so many asylum applications and even the most refugee friendly states
responded by closing their borders. The crisis made it abundantly clear that, in the
absence of strong institutions in the context of an internal borderless area, once inflows
enter any state in Europe they are then able to move onwards, triggering unpredictable
policy reactions, the efficacy of such reactions and the long-term consequences for
Schengen and its principle of free movement, “one of the EU’s most cherished achieve-
ments” (Commission, 2016: 2) are far from positive.
Whereas the so-called crisis sparked a broad range of measures and policy debates, in
this article I will focus on the different ways in which countries organized the monitoring
of intra-Schengen border crossings. So, in other words, in what ways countries are polic-
ing intra-Schengen borders. After September 2015, several Schengen countries—
Germany, Austria, Slovenia, Hungary, Sweden, Norway, Denmark and Belgium—invoked
articles 25–27 and 28–30 of the Schengen Border Code (SBC) to reintroduce internal
border checks. Although much of the international attention went to those countries that
temporarily reinstated permanent border checks, it is important to realize that the SBC
offers countries an alternative to this drastic measure. This alternative might be even
more drastic in terms of monitoring mobility as article 23 of the SBC allows immigration
and/or police checks to be carried out by national law enforcement agencies in border
areas. By policing an area around the border, yet not performing checks at the physical
border between two countries, these police or immigration checks are considered to be
“Schengen proof”.
By focusing on these “article 23 SBC checks”, this article will argue that the Schengen
Agreement and the SBC are—and always have been—incomplete policy responses to
the tension that was felt from the very beginning of “Schengen” between (national) secu-
rity and freedom of movement. Whereas the first ideas about an area without internal
borders—stemming from the post-Second World War period—are built on the notion
that borders were considered to be a paragon of nationalism and therefore responsible for
war, and border control as a barrier to economic growth (Pudlat, 2010: 10), Schengen
nowadays seems to be all about border control and bordering practices driven by con-
cerns of national identity and sovereignty. The use of the “crisis” rhetoric in discussing
the migration tragedy in Europe is illustrative for these concerns, as it directly places an
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