Project-No EU CONSENT. Wider Europe Deeper Integration? Constructing Europe Network Network of Excellence

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1 Project-No EU CONSENT Wider Europe Deeper Integration? Constructing Europe Network Network of Excellence Priority 7 Citizens and Governance in the Knowledge-based Society Deliverable 38a External Aspects of Internal Security: a Research Agenda (First Draft) Organisation name of lead contractor for this deliverable: Instituto d Estudios Estratégicos e Internacionais - Dr. Alvaro de Vasconcelos Istituto Affari Internazionali - Prof. Gianni Bonvicini Author Florian Trauner Due date of deliverable: 31/05/06 Actual submission date: 31/05/06 Start date of project: 01/06/2005 Duration: 48 months

2 External Aspects of Internal Security: a Research Agenda (Draft version not to be quoted) by Florian Trauner Ph.D. Candidate Institute for Advanced Studies (IHS) Department of Political Science (trauner@ihs.ac.at) Abstract During the last decade, the way the EU tries to tackle internal security problems such as illegal immigration and organised crime has changed profoundly. Policy-makers have increasingly emphasised the external (extra-european) origin and dimension of these threats and urged to tackle it at its origin. As a result, the distinction between the allegedly inward-looking policy realm of Justice and Home affairs and foreign policy has been gradually blurred. This development lies in the very heart of this paper that aims to map to what extent and in which ways the nexus between internal security and external action has already been made. The analysis presents the external dimension of Justice and Home Affairs as a fast growing policy area that has gained considerable importance in the EU s relations with third countries. Thereby, EU external governance in internal security matters is seen as an ambitious attempt for regaining control over developments that are considered to be dealt with insufficiently within the EU. The most obvious and most influential way the EU can govern in internal security matters beyond its territorial frontiers is through a moving of its boundaries of order towards the broader European area. This happened in the Eastern Enlargement round and takes currently place with the remaining candidates. But not only countries queuing for membership are subject for closer EU internalexternal security cooperation. Justice and Home Affairs has been increasingly incorporated into the different association agreements and constitutes now an integral part of the EU s external relations. A special case are EU-US relations where the US is seeks closer cooperation in security matters, with the EU sometimes reacting reluctantly or even negatively to these advances. The analysis concludes with considerations on the major challenges ahead, three of which are identified: challenges concerning the proper balance between internal security concerns and external stabilisation needs; challenges deriving from the Eastern Enlargement; and, finally, challenges stemming from the cross-pillarisation and the need for more coherence and concerted action. Keywords: EU, European Security Regime, External Relations, EU External Governance in Internal Security Matters.

3 Table of Contents 1. Introduction The internal security regime of the EU The external face of internal security EU external governance in internal security matters Boundaries of EU order as main instrument for EU external governance The importance of Justice and Home Affairs in the EU s relations with thirdcountries Countries queuing for membership The European Neighbourhood Policy (ENP) Development co-operation: The EU-ACP relations The transatlantic relations with the US The mainstreaming of Justice and Home Affairs in the EU s external relations The challenges ahead Challenges concerning the proper balance between internal security concerns and external stabilisation needs Challenges deriving from the Eastern Enlargement Challenges stemming from the cross pillarisation and the need for more coherence and concerted action Conclusion References

4 1. Introduction During the last decade, the way the EU has tried to tackle its internal security problems such as illegal immigration and organised crime has changed profoundly. Policy-makers have increasingly emphasised the external (extra-european) origin and dimension of these threats and urged to tackle it at its origin. As a result, the distinction between the allegedly inward-looking policy realm of Justice and Home affairs and foreign policy has gradually been blurred (see e.g. Anderson and Apap, 2002; Pastore, 2001). This development was boosted by the unique events of 11 September 2001 and the terrorist attacks in Madrid and London. Third-countries being perceived as a source of such internal security threats were increasingly confronted with EU policies that made institutional affiliation or/and financial support conditional on cooperation on these issues. 1 But to what extent and in which ways has the nexus between internal security and external action already been made and what are the major future challenges in this respect? What are the routes of influence through which the EU can govern in this sensitive policy realm, as related closely to core issues of national sovereignty, beyond the common area of freedom, security and justice? These are the questions that this paper intends to elaborate on. The aim is to provide a brief overview on the latest developments concerning the external face of internal security and to line out the major challenges ahead. 2 The structure of the analysis is divided into three major sections. After an introduction of what can be understood under the European Security Regime, section two deals with the external aspects of these policies. Starting with theoretical considerations, the depth and the way of the incorporation of Justice and Home Affairs in the EU s external relations is examined more closely. The theoretical toolbox used to better grasp the underlying dynamics of this development is an application of the governance approach on the external role of the EU. Finally, the paper concludes with considerations on the major challenges ahead concerning the external aspects of internal security. 2. The internal security regime of the EU The EU s role as an actor in the safeguarding of internal security started only reluctantly but has gained considerable importance in recent years. This is mirrored by the dynamic development of the EU s cooperation in the field of Justice and Home Affairs, converted into efforts to establish a European area of freedom, security and justice. The EU co-operation in Justice and Home Affairs obtained with this new objective an entirely new quality and, additionally, became one of the fastest growing integration areas of the EU. This can be demonstrated empirically, according to Monar (1999: 1), (i) in terms of agenda and (2) in terms of its structure as roughly 40% of meetings and workload [of the Secretariat General of the Council] now directly or indirectly relate to JHA. 1 The importance this topic has gained can be seen in the European Security Strategy, adopted in 2003: Europe is a prime target for organised crime. This internal threat to our security has an important external dimension: cross-border trafficking in drugs, women, illegal migrants and weapons for a large part of the activities of criminal gangs. It can have links with terrorism (European Security Strategy, 2003: 4). 2 Since it is not possible to grasp every detail and facet of this complex and multifaceted picture, the author rather aims at mapping the major developments and at initiating a lively discussion on this rewarding and very relevant topic. 4

5 But of which basic features does this internal security regime 3 exactly consist of? The basic pillars can be summarized as follows (see Anderson and Apap, 2002: 4; Apap et al., 2004: 9): - the creation of a common territory without internal borders along with the settingup of a common external border policy; - strengthening of international police cooperation, particularly in (internal) crossborder regions (regulations of cross-border pursuit, joint police stations, joint patrolling in cross-border areas, etc.) - pooling of police data and information among national law enforcement bodies (Schengen Information System SIS; Costumes Information Service CIS, Europol s computerised system of collected information, Eurodac). In the last decade, considerable efforts have been undertaken to strengthen internal security in all of these aspects. Even though most of the points concern the enhancement of internal security, the external dimension of these policies became increasingly important and can be now considered as an integral part of this internal security regime. A good example for the blurring of the boundaries between internal and external security can be given with the EU s stance towards safeguarding its external borders. For doing so, the Council of the EU adopted in 2001a so-called Integrated Border Security Model : An overall border model is an important tool to safeguard internal security and in particular prevent illegal immigration. It means in simplified terms that a set of complementary measures has to be implemented on different tiers. In this respect four tiers can be identified. (1) Activities in third countries, especially in countries of origin and transit, including the collection of information by liaison officers as well as the key role of the consular post abroad in the process of issuing visas. (2) International border cooperation. (3) Measures at external borders: border management (border checks and border surveillance). (4) Further activities inside the territory of the Schengen States and between Schengen States (Council of the European Union, 2002: 11). The model contains a very broad interpretation of border policies, explicitly including activities in third countries. Liaison officers (first tier), introduced with reference to the Western Balkans, should safeguard the external borders far beyond the geographical definition of the common area. The last point then includes the commitment to prevent illegal immigration and cross-border crime by enhancing cooperation and by further harmonising legislation and practices inside the Schengen area. Included in this last tier is again the external dimension considered as an integral and crucial part to counter internal policy problems as defined: Given that the problems of migration and crime are not subject to geographical restrictions, international traffic routes should in future become main areas of activity for national police forces in accordance with domestic law (Council of the European Union, 2002: 15). 3 This expression is used in Anderson s and Apap s text (2002) on the changing concept of security and its implications for EU JHA cooperation. See also Jörg Monar s (2000) on the prevalence of the security imperative towards the development of the European area of freedom, security and justice. 5

6 However, the border policies are on the exact interface between internal and external security as they should guarantee that only people permitted to do so can enter the common space. Apart from this sector, the EU tried to develop a genuine foreign policy dimension of Justice and Home Affairs that should contribute to the enhancement of internal security. The mandate to build-up such a branch was officially given by the Head of the States and Governments at the 1999 Tampere Summit The external face of internal security The Tampere Council Summit that was entirely dedicated to Justice and Home Affairs resulted in the so-called Tampere milestones towards a union of freedom, security and justice (European Council, 15 and 16 October 1999). Section D of the milestones dealt with the need for stronger external action and stated clearly: The European Council underlines that all competences and instruments at the disposal of the Union, and in particular, in external relations must be used in an integrated and consistent way to build the area of freedom, security and justice. Justice and Home Affairs concerns must be integrated in the definition and implementation of other Union policies and activities (European Council, 15 and 16 October 1999: Point 59). Hence, these lines suggest that the establishment of an external dimension in JHA is not an objective in itself, but should rather contribute to the build-up of the inner- European area of freedom, security and justice. As Pastore (2001: 3) states, this internal-external security coordination is complex and operates in both directions: On the one hand, external security tools should be used in a way which is compatible, or even synergetic, with internal security policy objectives. On the other hand, internal security policies should contribute to the general political objectives of the Union s external policy. The concrete priorities and policy objectives for the external action in Justice and Home Affairs were laid down one year later and adopted formally at the European Council of Santa Maria de Feira (European Council, 19 and 20 June 2000). In this document, the Council agreed that the external dimension of JHA is particularly relevant and important for the achievement of certain internal policy objectives. Priority areas of action are: - The external dimension of migration policy: foster partnership with countries of origin, develop a cross-pillar approach to the issue (through the newly installed High Level Working Group on Asylum and Migration ), strengthen the external borders and conclude Community readmission agreements. - The fight against organised crime and terrorism: give a key role to Europol and better involve third countries in the action. 4 The Council of Tampere can be seen as a cornerstone in the development of an external dimension of Justice and Home Affairs, but it was not the beginning of such a process. As early as 1991, the European Commission was calling for the integration of migration issues in the EU s external relations; following the call, the 1992 European Council in Edinburgh agreed that co-ordination of action in the fields of foreign policy, economic cooperation and immigration and asylum policy [ ] could also contribute substantially to addressing the question of migratory movements (European Council, 11 and 12 December 1992: Annex 5, Point ix). Yet, the early calling for action was hampered by the institutional setting. 6

7 - The fight against specific forms of crime, such as financial crime, money laundering, corruption, trafficking in human beings, high-tech crime and environmental crime. - The fight against drug-trafficking; - The development and consolidation of the rule of law in countries on the path to democracy (Council of the European Union, 2000: 7-8). However, before examining to what extent these priorities have been incorporated into the EU s external relations, the next section takes a look at theoretical considerations of how the EU can govern in such a sensitive realm of national sovereignty beyond its narrow geographical scope? A glance at theoretical considerations on EU external governance assists greatly in answering this question EU external governance in internal security matters The governance concept is usually applied by scholars who were less interested in the development of the European polity than with the concrete output these institutions create; moreover, it is mainly used for researching policy-making within the European Union (for an overview see Jachtenfuchs, 2001; Kohler-Koch, 1998). To date, studies which apply the governance approach on the external role of the EU are still exceptional cases but nonetheless, they recently attracted mounting interest (see, inter alia, Friis and Murphy, 1999; Lavenex, 2004; Schimmelfennig and Sedelmeier, 2004). In doing so, authors most often refer to the findings of Michael Smith (1996) who explored how the EU has structured and shaped the boundaries between itself and the broader European arena. The boundaries - the construction and modification of them is creating tensions as they define who is included and excluded respectively. The ways the EU handles the boundaries maintenance, strengthening, blurring or moving impacts heavily on its relations with outsiders. He argues that four types of boundaries exist or can be constructed between the Union and its environment: geopolitical, institutional/legal, transactional and cultural. Basically, Smith (1996: 5) comes to the conclusion that the European Union has changed its politics of exclusion [ ] towards a politics of inclusion to reflect the changing demands of the European order Boundaries of the EU order as a main instrument for the EU external governance Building on the work of Smith, Friis and Murphy (1999) argue that the malleability of these four types of boundaries creates incentives and opportunities for EU actors to govern beyond the EU. European governance thereby takes place in two different modes: soft and hard governance (Ibid, 1999: 214). The former reflects the fact that EU governance is largely concerned with the development of norms and values which condition the actions of its member states. Commitments to democracy, respect for the rule of law and negotiations give the EU the character of a security community and a civilian power in the international system. The second kind of governance is hard and refers to the process of governing through negotiations. These two features of governance mainly takes place within the EU, but structure the EU s interaction with its external environment as well. The EU s external action is 7

8 based upon agreements first reached amongst its members hence, external action is linked to an internal process of negotiations (Ibid, 1999: 215). Good empirical proof for the accuracy of their assumptions can be found in the way the EU tried to expand its internal security order in the Eastern Enlargement. Security concerns have been at the very heart of accession negotiations (see Lavenex, 1998: 285), so that the EU-15 agreed to include the Schengen regulations and rules an uncatalogued miscellany of decisions and agreed working practices, a sort of disjointed incrementalism par excellence (Lavenex and Wallace, 2005: 465) into the EU acquis to be incorporated in the legal order of the countries seeking accession. Accordingly, the EU s external governance in internal security issues in the Enlargement process is based upon a decision taken in internal negotiations that moulded the EU s external action during the membership talks. 5 But the relocation of the EU s boundaries during membership negotiations is not the only way the EU can exert influence on third countries. For instance, Lavenex (2004), also drawing on Smith s distinction between the four types of boundaries, shows in contrast to him that the institutional and the legal one form different boundaries which need not always move together. In examining the EU s wider Europe initiative for the eastern and southern European neighbours, she argues that the EU strives for an expansion of its legal order (the acquis communautaire) to non-member states without offering them full integration in the institutional system of the Union. The underlying dynamic for the expansion of the EU s legal boundary is a strategic attempt to gain control over policy developments through external governance. 6 Thereby, external governance mainly takes place in soft security issues, such as in Justice and Home Affairs. In this policy realm, internal and foreign policy goals have come together because rule-extension towards non-member states may follow functional needs when it is seen to increase the efficiency and problem-solving capacity of internal policies (Ibid, 2004: 681). Two main factors have driven the development that the EU enhanced its engagement in these soft security risks towards countries outside the European framework: perceptions of interdependence and institutional roles and capacities. Perceptions of interdependence and threats play a crucial role in the legitimation of political order and chosen politics. Like this, not just benevolent idealism, but also apprehensions concerning the enlarging Union s identity and its vulnerability towards developments in its near abroad are the motivation of recent initiatives to transfer EU rules to third countries. The assumption is that the EU will try to expand its sphere of governance in particular in areas which have become securitized inside and where vulnerability is attributed to developments in the third countries in question (Lavenex, 2004: 686). 5 See Schimmelfennig and Sedelmeier (2004) for a more detailed view on the concrete application of EU external governance in the Enlargement process. 6 In short it is argued that the EU s move towards external governance is conditioned by the resurgence of its fundamental identity as a security community (Deutsch et al. 1957) in an altered geopolitical surrounding (Lavenex, 2004: 681). 8

9 Institutional roles and capacities are seen as the basis and precondition for EU external action in any given area. 7 Under the notion of capacities, one may subsume also the different types of associations the EU holds with third countries. The closer a country is institutionally affiliated to the EU, the more possibilities the EU has to interfere in its internal policy processes and structures. Accordingly, the next section distinguishes between different types of institutional affiliation between a third country and the EU and elaborates on the importance of Justice and Home Affairs in the different cooperation forms The importance of Justice and Home Affairs in the EU s relations with third-countries In some of the cooperation forms the EU holds with third countries, the external face of Justice and Home Affairs has a particular strong role: (1) countries seeking accession; (2) neighbouring countries being subsumed under the European Neighbourhood Policy ; (3) development cooperation with the African, Caribbean and Pacific (ACP) states; and (4) the transatlantic relations with the US Countries queuing for membership The EU draws a very fine distinction between acceding countries (Bulgaria, Romania), candidate countries (Turkey, Croatia and Macedonia, the later without a concrete date for accession negotiations) and potential candidate countries (Albania, Bosnia and Herzegovina, Serbia and Montenegro). Basically, Article 8 of the Schengen Protocol is applicable for all of them which states: Schengen Acquis and further measures taken by the institutions within its scope [ ] must be accepted in full by all States candidates for admission. Hence, the question is not if but rather when and how do these countries adhere to the EU s acquis in JHA. The EU assists them in adopting it (or, in approaching to European standards, respectively) with different pre-accession instruments (PHARE, ISPA and SAPARD, as well as CARDS and the Turkey pre-accession instrument) all of which will be replaced under the future Instrument for Pre-accession Assistance (IPA) for the next financial perspective ( ). Besides the legal rapprochement, the EU places high emphasis on the conclusion of readmission agreements between the candidate countries and individual EU member states and/or with other third countries. Also, the Commission was given the mandate from the Council to negotiate European Community readmission agreements (applicable to all EU member states except Denmark) with two of these countries, namely Turkey and Albania (concluded in April 2005). The Western Balkans states, most of which remain under the vague promise of potential candidate countries, receive special EU attention in the course of the postconflict stabilisation of the former Yugoslavia. Several Police Missions ( Proxima and its successor EUPAT in Macedonia, EU Police Mission in Bosnia and Herzegovina) 7 Whereas the former refers to the EU s own conception of its tasks and responsibilities and relate to the notion of civilian power, the latter deals with the dynamic distribution of competences and resources in the EU s multilevel system and provide the background for the Union s accountability to engage in governance activities. 9

10 aim at establishing sustainable policing arrangements under local authority in the region. Policing in post-conflict situations draws together the portfolios of Justice and Home Affairs with the CFSP and the emerging European Security and Defence Policy (ESDP) and represent therefore an area of policy in which the nexus of internal security and external affairs is particularly closely interwoven (see also Rees, 2005: 222) The European Neighbourhood Policy (ENP) The European Neighbourhood Policy was developed in the context of the EU s 2004 Enlargement and comprises the surrounding states that are not included in the Eastern Enlargement (with the exception of those seeking accession). Originally intended to apply just to the immediate neighbours in the East and the Mediterranean, it now includes also the countries of the Southern Caucasus with whom the present candidate countries share common borders. Russia was granted a special status, converted into a Strategic Partnership covering four common spaces. Given the heterogeneity of the states involved (ranging from Israel over Libya to Belarus), the EU sets-up bilateral ENP Action Plans for each of them that are tailor-made to correspond properly to the needs of the situation and the countries concerned. In the policy field of Justice and Home Affairs, border management is a priority in most Action Plans and considered as the most important precondition for any facilitation of the EU s visa regime. Concretely, the creation and the training of professional non-military border guards and measures to make travel documents more secure are the main objectives within this realm. Additional JHA objectives, as defined, are: Action Plan priorities could furthermore include co-operation on migration, asylum, visa policies, measures to combat terrorism, organised crime, trafficking in drugs and arms, money laundering and financial and economic crime. Action Plans will identify concrete steps to strengthen the judiciary and to increase police and judicial co-operation, including in the area of family law as well as cooperation with European Union bodies such as EUROPOL and EUROJUST. Relevant international conventions need to be ratified and implemented. Action Plans should also reflect the Union s interest in concluding readmission agreements with the partner countries (Commission of the European Communities, 2004: 17). For the setting-up of the JHA section in the National Action Plans, the EU refers explicitly to the experiences gained in previous bilateral and multilateral partnerships, in particular in those made with Russia and Ukraine. 8 In 1999, the EU agreed upon action plans with Russia on combating organised crime 9 and with Ukraine on JHA 10, both of which were based on previously developed Common Strategies towards the countries. The Plan for Russia concerns the fight against organised crime and puts a 8 The approach taken in the EU/Russia Action Plan against organised crime and the Justice and Home Affairs (JHA) Action Plan for Ukraine, which includes a scoreboard, could be developed for other neighbouring countries (Commission of the European Communities, 2003: 11) 9 See EU Action Plan on Common Action for the Russian Federation on Combating Organised Crime, published in OJ 2000/C 106/5 of 13 April See EU Action Plan on JHA in Ukraine of 10 December 2001, published in OJ 2003/77/01 of 29 March

11 main focus on judicial and law enforcement cooperation. The Plan for Ukraine, in turn, applies a broader focus, including irregular migration, border management, visas and organised crime. How cooperation in Justice and Home Affairs continuously gained in importance in the EU s relation towards the two countries, was shown by Lavenex (2004: 690) through an elaboration of the EU s financial instrument for the region, the TACIS programme. The TACIS JHA s expenditures (that covered also the two mentioned action plans) increased from 0,6 million euro in 1996 to 11,5 million euro in 2002 to (scheduled) 49 million euro for the period As the European Neighbourhood Policy builds upon existing regional and subregional partnerships, the Euro-Mediterranean Barcelona-Process was also subsumed under this new framework. Concerning the new priorities, the EU wants to enhance cooperation in the fight against terrorism and the proliferation of weapons of mass destruction (Commission of the European Communities, 2003: 12), on par with migration policies that have always occupied a central (and frequently, highly disputed) position (see Pastore, 2002). 11 The cooperation between the Euro- Mediterranean partners in Justice and Home Affairs issues is, however, far from being easy; the problems range from a lack of any basic understanding of the definition of the term terrorism to very different ideas on how to facilitate the migration pressure coming from these countries. But it is too early to make an assessment of the EU s New Neighbourhood policy or to predict its outcomes. Several authors, however, emphasise that the EU must also pay attention to the needs and expectations of the countries concerned to make a success out of it. In focusing on the Southern Neighbours, Balfour (2005: 32) advises the EU that the carrot and stick exercise in the Mediterranean will require careful fine-tuning and a concerted effort by all actors involved Development co-operation: The EU-ACP relations Equally sensitive is the EU s inclusion of Justice and Home Affairs in its development policies. The most important aspect of the EU s development policies are the relations between the European Union and the African, Caribbean and Pacific (ACP) states. These relations were institutionalised and governed by the regularly adapted and updated Lomé Conventions (from 1975 to 2000) and since 2000 through the Cotonou Agreement. The most important aspect of Justice and Home Affairs concerns migration policy. With regard to the EU s development policy, the tension between two different approaches on how to ease migratory pressure is particularly salient (see Boswell, 2003: 619f). The first basically seeks to externalise traditional tools of domestic or EU migration control. The logic in this approach is to utilise already existing (external) relations with sending and transit countries and to engage them in strengthening border controls, combating illegal entry, migrant smuggling and trafficking or readmitting migrants who have crossed into the EU illegally. The second type of policy, partially used at the same time as the former, can be defined as preventive or humanitarian. Under this approach, co-operation seeks to change the factors which influence people s decisions to move, thereby trying to address the causes of 11 For doing so, national migration plans should be implemented in full with the three central Maghreb countries, Libya and Egypt. 11

12 migration and refugee flow, or alternatively, to provide refugees with access to protection nearer their country of origin. Article 13 of the Cotonou Agreements 12 that is dedicated to the topic of migration reflects the attempt to find a proper balance between these two approaches. On the one hand, it is stated that strategies aiming at reduce poverty, improving living and working conditions, creating employment and developing training contribute in the long term to normalising migratory flows. At the same time, the agreement contains a standard readmission clause, as well as the commitment to negotiate readmission agreements, if requested by one of the Parties. Additionally, migration shall be subject of in-depth dialogue in the context of the ACP-EU Partnership and the ACP- EC Council of Ministers shall examine issues arising from illegal immigration with a view of establishing, where appropriate, the means for a prevention policy. The Cotonou Agreement, however, outlined just the agenda for further action. Since its signing in 2000, the EU undertook several attempts for mainstreaming migration issues into the EU s development policies (see in particular Commission of the European Communities, 2002; 2005). The 2005 Commission Communication (2005: 14) stated that all Country Strategy Papers, which constitute the framework under which Community assistance to its developing partners is programmed, were reviewed to assess whether there was a case for addressing migration issues. The latest call for action came from the European Council in December 2005 that demanded a Global approach to migration: Priority action focussing on Africa and the Mediterranean (see European Council, 15 and 16 December 2005: Annex I). The programme foresees far-reaching action, including the establishment of a pilot Regional Protection Programme (RPP) involving Tanzania in The programme aims first and foremost to protect refugees directly in the host country, but to use the words of Commissioner Frattini - will also contribute to prevent illegal secondary movements and to the fight against human trafficking, as refugee champs are often reservoirs for criminal organisation, but these are goals I don t think anyone could object to The transatlantic relations with the US The EU USA relations in Justice and Home Affairs are quite distinct to the previously mentioned ones. While the EU has usually been in a powerful position over internal security matters towards third countries, the reverse has been the case in its relationships with the US (Rees, 2005: 219). Here, the US is pressuring for further-reaching cooperation, with the EU reacting reluctantly or even negatively to these advances. The EU s relations with the US are institutionalised in the New Transatlantic Agenda (NTA), launched in Among others, the NTA s aim has been to meet common challenges and to realize opportunities in terms of security for the two partners. Moreover, it should provide a common platform to deal effectively with both, the externalities of one partner s policy on the other and the effects of third parties action on common US-EU interest. 14 The effectiveness of the cooperation, however, was 12 See Cotonou Agreement (Standard Text), Page 21f. 13 See Press Conference with Commissioner Frattini in Brussels, 1 st September 2005, accessible on: 14 On the process of launching and installing the New Transatlantic Agenda see Winand and Philippart (2001). 12

13 lowered by the fact that the EU and the US struggled over the same perception of security threats and that it tended to be tied by initiatives of successive EU Presidencies that were reflected mainly by short-term considerations, lacking a longterm commitment (Rees, 2005: 220). The events of 11 September 2001 profoundly changed the US-EU cooperation in security matters. In response to the terrorist attacks on the US, the EU moved quickly to intensify cooperation on a whole range of security issues, not only on the fight against terrorism but also on combating international crime and illegal immigration. Two agreements were signed at the June 2003 EU-US Summit, one on extradition and the other on mutual legal assistance. They provide the legal basis for creating enhanced joint investigative teams and for allowing law enforcement authorities access to bank accounts in each other respective jurisdiction. Another important (and very disputed) aspect concerned the exchange of intelligence information and other data. Europol and Eurojust was given the mandate to work closer with the US and a corresponding agreement was signed between Europol and the US authorities shortly after the terrorist attacks in December More disputed was the question whether or not transfer Passenger Name Record (PNR) information to the US Bureau of Costumes and Border Protection after the US authorities requested to air operating flights to or from the country to do so. After hard negotiations, an agreement was signed in May 2004 that makes possible the transfer of these passenger data, under certain conditions (see Council of the European Union, 2004). Needless to say, that these few measures do not grasp the whole intensity of the EU- US dialogue on counter-terrorism and other security challenges, as the United States and Europe are interlinked in an extraordinary number of ways in this respect. A wellfunctioning and properly balanced cooperation with the US is therefore an essential aspect for the internal security of the EU The mainstreaming of Justice and Home Affairs in the EU s external relations The hitherto mentioned examples elaborate on the growing importance of Justice and Home Affairs in the external relations, as far as it concerns the direct surrounding of the territory of the EU. Apart from this geographical limitation, the EU places emphasis on mainstreaming its Justice and Home Affairs policies into all political dialogues held with third countries or other regional settings. This is clearly reflected by the EU s strategy for the external dimension of JHA, adopted in December 2005 (Council of the European Union, 2005). The strategy demands that JHA should get a central priority in its external relations (Ibid: 2). Due to altered threat scenarios in which it makes no longer sense to distinguish between the security of citizens inside and outside the EU, the focus of action ought to become global in nature. Several challenges are identified: terrorism, organised and serious crime, migration flows including the management of legal ones and the fighting of illegal ones, and weak governance and failed states. The document then listens the different possibilities by which the EU can make third countries cooperate on EU s JHA objectives. 15 Finally, the strategy gets quite concrete and listens three 15 Concretely, the EU s strategy demands that all its external relations should be used more effectively as an incentive for achieving the JHA objectives; that the main focus should be directed towards other regional settings recognizing that JHA issues are often regional in nature ; that effective multilateralism contributes to a 13

14 measures to be taken in order to increase the importance of JHA in the external relations: (1) the Commission and Council Secretariat will systematically monitor the progress of JHA external activities and report every 18 months; (2) the Council will adopt a limited number of action oriented papers covering specific priority countries, regions or themes; and (3) these action oriented papers should focus on following subjects: strengthening counter-terrorism cooperation with North-Africa and cooperation on migration management problems with Africa, improving JHA cooperation with the Western Balkans and the ENP countries, fighting drug production in and trafficking from Afghanistan and implementing with Russia the Common space of freedom, security and justice. What is more, these action oriented papers contain several highly interesting features, many of which have been presented on a workshop on the Austrian Presidency and the Internal-External Security Link, organised by the Austrian Institute for International Affairs (OIIP) on the 12 May According to Austrian officials from the Ministry of Interior participating on this workshop, the drafting of the papers did not take place in conventional EU institutional structures, but was organised in a relatively new and informal set-up, the Friends of the Presidency. This working group included the presidency, officials from the Commission and the Council Secretariat and interested member states. These officials put together papers which are quite remarkable compared to the usual working documents: (1) they contain very concrete time spans and deadlines; (2) they try to avoid duplications and create synergies by asking all member states to list their bilateral activities with the partner countries in an annex to the paper; (3) they strive for a partnership on equal footing with the concerned countries rather than for a top-down approach (in the paper called partnership for security ). All in all, the action oriented papers can be seen as a rather new and innovative way as far as it concerns the EU s attempt to increase the efficiency in the internal-external security coordination. 16 Simultaneously to these attempts of mainstreaming the EU s Justice and Home Affairs policies in the external relations, EU member states opted also internally to go new ways in managing threats. The most outstanding example in this respect is the Prüm Convention, signed in May 2005 by seven EU states; they want to step-up cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration. 17 The method underlying the Convention is resolutely intergovernmental and in particular aimed at speeding up the exchange of information. Whereas the seven member states see themselves in playing a pioneering role in establishing the highest possible standard of cooperation (Prüm Convention, 7 July 2005: 3), critics stress that this development may create negative externalities for the EU s JHA cooperation by circumventing the EU framework (Balzacq et al., 2006). better governance of global threats; that EU agencies like Europol, Eurojust and Frontex should enhance their cooperation with third countries; that the EU should develop its technical capacities to engage effectively with third countries in areas such as readmission of illegal immigrants; and that the JHA s external dimension should be funded appropriately. 16 The texts of the first two papers are in Action Oriented Paper on Improving Cooperation, on Organised Crime, Corruption, Illegal Immigration and Counter-terrorism, between the EU, Western Balkans and relevant ENP countries, Brussels, 12 May 2006, Council of the EU, 9272/06, and Action-Oriented Paper Increasing EU support for combating drug production in and trafficking from Afghanistan, including transit routes, Brussels, 22 May 2006, Council of the EU, 9370/1/ See Prüm Convention (7 July 2005). 14

15 Altogether, the Prüm Convention and the EU s strategy for external action in JHA both exemplify the different efforts and new ways the EU is willing to go in order to become capable of managing the new threats deriving from the blurring of the boundaries between internal and external security. 4. The challenges ahead This final section of the paper deals with considerations on the major challenges ahead, three of which are identified: challenges concerning the proper political balance between internal security concerns and external stabilisation needs; challenges deriving from the Eastern Enlargement; and, finally, challenges stemming from the cross-pillarisation and the need for more coherence and concerted action Challenges concerning the proper balance between internal security concerns and external stabilisation needs One of the major challenges ahead is to find a proper balance between internal security concerns and external stabilisation needs. As already pointed out by Monar (2000), there is a strong dynamic of inclusion and exclusion in Justice and Home Affairs cooperation. A safe(r) inside is contrasted with the unsafe(r) outside, with the EU s frontiers as the dividing line and law enforcement and border controls as key instruments to maintain and further enhance the distinction (Monar, 2001: 762). However, it has to be examined if the creation of a hard border at its external face is the proper way to combat the internal security threats. Hard borders also do create a demand for illegal activities for circumventing them (see in this respect also Smith, 2003: 192f). They also create, in certain cases, side-effects in which the costs may exceed the benefits. An example can be given by referring to the International Crisis Group s (ICG) report (2005) on the EU Visa regime for the Western Balkans. Security concerns regarding the Balkan route through which illegal immigration and/or other criminal activities may enter the common territory, have prompted the EU to place four out of the five states on the negative EU Schengen Visa list. 18 At the same time, the EU s overall objective for the region is to support these countries in their ongoing transformation towards stable democracies and open, European-minded societies. The ICG report now reveals the inherent tension between these two conflicting paradigms. 70 per cent of all Serbian students have never left their country and thus have only a very vague idea of what the EU may be. Moreover, their compatriots in Bosnia and Herzegovina and Albania are obviously opting more and more to study where they receive a warmer welcome which they get, for instance, in Pakistan and Saudi-Arabia. Out of them, many return with fundamentalist ideas. Thus, even though the EU claims that it does not want a Balkan region plagued with extreme nationalism and religious intolerance on its borders [ ] that is what its Visa policies are helping to create (ICG, 2005: 10). Similar tensions can be identified in other areas: To what extent should the EU cooperate with third-states in the fight against terrorism, if these states are not committed to the respect of fundamental human rights? And, of course, the delicate balance in the field of development policy: What is the proper balance between acting against migrants smuggled or entering illegally into the EU and fighting the root causes for which the same people have opted to leave their home country? 18 Concretely, these states are Albania, Macedonia, Serbia and Montenegro and Bosnia and Herzegovina. 15

16 The challenge deriving from these conflicting paradigms may be summarised in one main question: What is the proper trade-off between the EU s CFSP objectives that are driven by the EU s self-understanding as a civilian power at the international stage, and the JHA s policies, that are guided by the interest of keeping problems out and borders closed? 4.2. Challenges deriving from Eastern Enlargement The 2004 Eastern Enlargement granted ten new member states access to the hitherto exclusive Western European states club. The enlargement set the final step for ending the artificial separation of the European continent during the Cold War, but brought also major challenges for the safeguarding of the internal security. Some of the new countries will no longer remain just transit countries but will become (or, have already started to become) destination countries for unauthorised migration flows. Therefore, the upgrading of their border policies and their transformation into a buffer-zone for the old member states will probably reduce a likely source of internal social tensions and a factor of potential xenophobic political propaganda in the old EU-15 (Pastore, 2001: 16). At the same time, other internal security risks may increase. Russian organised crime is much stronger in certain of the new member states, some of the security services are not fully reformed and the fight against corruption has yet to bear fruit in at least some of the states. This is the first aspect. The second is the ongoing institutional inclusion of these states in the European security order. The extension of the EU s institutional structure and policies to the new member states will have major effects on their development. The proper balance between (and for scientist, the better analysis of the interaction between) widening and deepening of the European security regime is definitely one of the major challenges ahead Challenges stemming from the cross pillarisation and the need for more coherence and concerted action The last challenge identified in this paper relates more to the institutional set-up within the EU and additionally, to the need for more coherence and fine-tuning of the action on the ground. The call for more concerted action and a better use of the existing resources has already been voiced on numerous occasions (on the last occasion see the action oriented papers mentioned beforehand). The problem has at least two faces: On the one hand, the internal institutional crosspillarisation aggravates coherent acting and contributes to major risks of institutional and legal confusion. As proposed by Pastore (2001: 19), superseding the pillar structure would therefore be certainly the most rational response to at least part of these risks. But this step, in particular as far as it concerns the CFSP/ESDP, is still very unlikely and remote. On the other hand, there is a need for more coherence and concerted action in order to avoid duplicates and to create synergies for the daily action on the ground. Frequently, actors in third countries are not informed sufficiently about the activities of the others. A major problem in this respect is the question of how and to what extent should the actors on the ground share their information with other European actors. The reluctant handling of information was, for example, identified as the major 16

17 shortcoming of the work of the first liaison network, established in the Western Balkans. 19 Therefore, the last point of discussion refers to questions of how to overcome problems deriving from inter-european cross pillarisation; to the need to find coordination mechanisms on how to inform each other about the concrete actions undertaken; on how to streamline and better use the work of different national and European actors with diverging mandates but similar objectives; and last but not least, on how to bring together very different security cultures that are increasingly prompted to work together as the boundaries of internal and external security disappear (policemen and soldiers seem to have very different ideas on how to tackle the same security problem). 5. Conclusion The aim of this paper was to provide a brief overview on the latest developments concerning the external face of internal security and to line out the challenges ahead. The application of the governance concept on the EU s external role gives the theoretical toolbox used in the paper. The importance of the EU s Justice and Home Affairs policies in the EU s external policies is worked out for several cooperation forms the EU holds with third countries: (1) countries seeking accession; (2) neighbouring countries being subsumed under the European Neighbourhood Policy (ENP); (3) development cooperation with the African, Caribbean and Pacific (ACP) states; and (4) the transatlantic relations with the US. The analysis presented the external dimension of Justice and Home Affairs as a fast growing policy area that has gained considerable importance in the EU s relations with third countries. Thereby, EU external governance in internal security matters is seen as an ambitious effort to regain control over developments that are considered to be dealt with only insufficiently within the EU. The most obvious and most influential way the EU can govern in internal security matters beyond its territorial frontiers is through a moving of its boundaries of order towards the broader European area. This happened in the Eastern Enlargement round and currently takes place with the remaining candidates in the surroundings of Europe. But not only countries queuing for membership are subject for closer EU internal-external security cooperation. Justice and Home Affairs has been increasingly incorporated into all different association agreements and forms and constitutes now an integral part of the EU s external relations. A special case is the EU-US relations where the US seeks closer cooperation in security matters, with the EU sometimes reacting reluctantly or even negatively to these advances. The paper concludes with considerations on the major challenges ahead, three of which are elaborated: - What is the proper trade-off between external stabilisation needs and internal security concerns? - What are the effects of the Eastern Enlargement on the EU s internal security order and how can negative side-effects be minimized or avoided? 19 The official evaluation of the liaison network in the Western Balkans is not accessible to the public. Nonetheless, the shortcoming was confirmed during several expert interviews, conducted by the author in Brussels in February