Very Good Proposal on Schengen

The Commission has put forward a proposal for improving the institutional framework of the Schengen area. First, the Commission proposes a strengthening of the Schengen evaluation mechanism. Announced and unannounced monitoring visits to a given Member State by Commission-led teams with experts from other Member States and Frontex will verify the application of the Schengen rules. Second, the Commission tackles the problem of unilateral reintroduction of borders. Such a decision for the reintroduction of internal border controls for foreseeable events (such as an important sporting event or a major political meeting) would be taken at the European level on the basis of a proposal by the European Commission backed by a ‘qualified majority’ of Member States’ experts. If a Member State fails to adequately protect a part of the EU’s external border, support measures including technical and financial support from the Commission, from Member States, from FRONTEX or other agencies like Europol or the European Asylum Support Office (EASO), can be taken.

The proposed measures are a big step forward for the European border security policy. However, a few Member States have already expressed skepticism, citing the national sovereignty as the main reason. They seem to have forgotten the very poor response of France and Italy to the wave of sea-borne migrants due to the Arab Spring revolutions in North Africa.

It will be very interesting to observe the debate on the Commission proposals, since border security is one of the factors that will define the viability of the European project.

 

 

The Ghost of Hatred is Roaming in Europe

Yesterday a terrible crime was committed in Norway, leaving more than 90 people dead. A lone terrorist was able firs to explode a bomb in the centre of Oslo and then to shoot at least 80 people, many of whom were teenagers. We know very little about his motivation, but it appears that he held far-right, and anti-Muslim views. So let’s say it bluntly: the ghost of racial and religious hatred is roaming in Europe. We have to stop it.

I have watched with indignation the rise of far-right parties in the EU – from Netherlands to France and from Bulgaria to Italy. Everywhere across Europe the narrative of cheap nationalism and populism, the language of hatred and discrimination has become fashionable. Even mainstream politicians have flirted with it. This has to stop.

Europe has suffered too often from its stereotypes of hatred. After all, we nearly exterminated a whole ethnos just 70 years ago. I refuse to look the other way when the same old disease is surfacing. And I cannot overlook the role of media in this. Yesterday, while it was still unclear who was responsible for the events in Oslo, an English newspaper put this headline on its first page, claiming that the bombing was orchestrated by Al Qaeda. This was happening while various counterterrorism experts on Twitter were explaining that it was quite unlikely that Al Qaeda was involved. This was not an innocent mistake. We live in a time when many people in the media business do enjoy flirting with far-right agendas, because they know that hatred sells. Mr. Murdoch’s publications are not the only ones involved. We have to stop this.

It is quite obvious that the European countries do have a problem with the integration of immigrants. A lot can be done here. First, we need to address border security. Second, we need to foster integration of immigrants, without resorting to defeatist language, while taking into account the security concerns of our citizens. Third, we need to redesign development programs for developing countries. Fourth, we need to help designing programs for adaptation to climate change in developing countries. Fifth, we need to persecute crimes motivated by religious hatred and crime.

This agenda is much more important than any other agenda of the European Union. It needs leadership and determination. The alternative is grim. The ghost of hatred is still a ghost. We have to stop it.

UPDATE: Please look at the faces of the victims from the Utoya shooting.

 

What Do We Really Want from the EU?

European citizens should think more about their demands when talking about the EU. Here’s why.

These are not the best of times for the European Union. There’s a financial crisis; an immigration crisis; a crisis of trust, and who knows what else. In a nutshell, the EU is in trouble.

What is more difficult to comprehend is the malignancy and the “I-told-you-so” attitude of so many politicians, commentators and European citizens. The poignancy of the negative feelings is really remarkable. That is why I would like to do something unusual for this blog and address these skeptics. My objective is to provide a merciless, subjective and heavily normative critique of the complacency of those that seem to prefer a European future without a European Union.

In order to do that, I need to make an important observation. Homo Sapiens has not evolved substantially during the last 60 years. That being said, the claims that a new war on the European continent is impossible seem strange. It was not the tanks and airplanes that destroyed Europe during World War II, it was the people in them. What is more, our physical and genetic ancestors have waged war on one another for at least two millennia on this continent. In fact, the only longer peaceful episode in recent history has been the period of European integration. It’s true that NATO and the dynamic of nuclear deterrence also played a part. But it was the cooperation of European elites within the European Community that cemented this security pact.

Nowadays many believe that wars are part of the history, but not of the future. Others think that wars may be a useful instrument of foreign policy. What unites them is the lack of any wartime experience. This virus of complacency and ignorance is widespread. It has caught up with politicians, journalists, and all kinds of experts. The McDonalds rule is their flag, although it has already been broken. This virus makes them think that states are well equipped to solve emerging problems using the classic instruments of intergovernmental cooperation. The problem with their narratives is that this type of cooperation has recently failed spectacularly – with the UN Climate Change Conference failing to agree on new rules for climate change mitigation, WTO failing to agree on the completion of the Doha round, and the G-20 failing to agree on anything except for the summit menu. These are not just incidents; these are symptoms of the limitations of the classic forms of international cooperation.

Someone might argue that if the EU were so successful, it wouldn’t have experienced its recent crisis. That is true. The EU is not perfect, and we are now bearing the fruits of the lax rules of the Economic and Monetary Union. But it is much better than any other form of cooperation especially given the small economies of many Member States. This issue of economic efficiency is usually not discussed by euroskeptics. The truth is that without the European Union economic life in Europe would definitely slow down, and businesses know that. This is the problem of some anti-EU parties: their constituencies will actually suffer from any possible withdrawal from the Union. That is why they prefer to grumble about the EU without taking a meaningful step towards resolution of their grievances. Referendums should be held in each and every Member State that feels the need to take a different path to prosperity. The United Kingdom should be particularly encouraged to conduct a referendum on its EU membership. The European Union is not a club of convenience; its success depends on the high motivation of its members.

The European Union is not at a crossroads. It is a well-functioning and unique mechanism for political integration. It’s up to its users – the European citizens, to use it properly. It will deliver results only if we command it to do so. That is why from now on I would like to hear more demands, and less chaotic criticism when discussing the EU.

Commission’s Vision on EU Borders and Migration

By now you must have heard that the Mediterranean Member States are experiencing some serious difficulties in managing the wave of new migrants from North Africa. The governments of Italy and France have stepped in and suggested temporal reintroduction of border controls due to the migrant wave. Now the European Commission has issued its own Communication on migration.

The Commission notes that the EU is not fully equipped to help those Member States most exposed to massive migratory movements. That is why it believes that the feasibility of creating a European system of borders guards should be considered. The Commission also recommends adopting a risk-based approach and ensuring greater use of modern technology at land as well as sea borders.

The Commission advocates for a mechanism that would allow the EU to handle situations where either a Member State is not fulfilling its obligations to control its section of the external border, or where a particular portion of the external border comes under unexpected and heavy pressure due to external events. The mechanism should be used as a last resort in truly critical situations.

The Commission also calls for the incorporation of enhanced readmission obligations into the framework agreements concluded with third countries.

One important claim of the Commission is that a European entry-exit system would ensure that data on the crossing of the border by third country nationals would be available for border control and immigration authorities.

The Commission intends to present by 2012 a Green Paper on addressing labour shortages through migration in the EU Member States.

In general the Commission says that the EU should step up its efforts to address the drivers of migration with a special focus on employment issues, governance and demographic developments.

The Communication on migration is a well prepared and consistent document, but it remains to be seen how Member States will act on it.

A Reminder to the Hungarian Government

Via Bloggingportal.eu’s campaign I became aware of the controversial new media law in Hungary that seems to introduce mechanisms that elicit media censorship. A lot can be said about this law and its compliance with ECHR and the founding principles of the European Union. But I would like to take a different approach. Instead of providing some legal analysis I will take the liberty (sic) to remind the Hungarian government a poem they should know better. The poem is written by the Hungarian poet and revolutionary Sándor Petőfi in 1847, 2 years before his death.

Szabadság, Szerelem!

E kettő kell nekem

Szerelmemért föláldozom

Az életet,

Szabadságért föláldozom

Szerelmemet.

Freedom, Love!

These two I need

For my love I sacrifice life

For freedom I sacrifice my love.

Belarus: the White Elephant in the Room

Brussels, we’ve got a white elephant in the room. It’s Belarus, of course. The place where they beat up presidential candidates (watch the video of the beating of presidential candidate Neklyaev). The place where one man is clinging to power for 16 long years.

There were presidential elections yesterday in Belarus. They ended in protest and police violence, just as you might expect from a country which is at the bottom of the Economist Intelligence Unit’s Democracy Index 2010. All the mise en scène was there – flags, songs, and police beating up and arresting protestors. This is a place where they kill journalists, after all.

I witnessed both the protest and ensuing police violence in Minsk, the capital of Belarus and the reaction of relevant EU officials yesterday. Three politicians spoke out in this order: Carl Bildt, Wilfred Martens and Jerzy Buzek (Mr. Buzek’s statement specifically called on Lukashenko to stop the violence). Not a single word was heard from the High Representative Catherine Ashton or any representative of the Commission.

Now there is a slight annoyance. It turns out that Belarus lies on the EU doorstep. Technically speaking, EU is committed to the values of democracy and rule of law. Democracy and rule of law are obviously not abundant in Belarus. So what do we do about it?

Well, not much, to be honest. There is something called high-level EU–Belarus political dialogue. There is some action by OSCE observers who say that probably the election process got somewhat better in the 2010 elections. Sort of.

This is worrying. Belarus is a European country and a potential EU Member State (no matter how far-fetched that sounds). The European Union has already experienced relative loss of leadership on the promotion of human rights, democracy and the rule of law. The case of Belarus is disturbing and quite obviously Lukashenko has no intention to lose grip on power. All geopolitical considerations notwithstanding, EU can only profit from a free and democratic Belarus, and vice versa. That is why the EU must really step up its pressure on the political regime, or at least condemn it properly.

UPDATE: There’s a statement now by the spokesperson of the High Representative Catherine Ashton.

Final Compromise on the Citizens’ Initiative

The Constitutional Affairs Committee of the European Parliament, the Commission and the Council have reached an agreement on the so-called citizens’ initiative (art. 24 TFEU). The citizens’ initiative allows one million citizens to ask the Commission to propose a new EU law. The main points:

• the admissibility check on an initiative will be made at the point of registration,
• a citizens’ committee of at least seven members coming from seven Member States should be set up to register an initiative,
• the signatories must come from a minimum one-quarter of the Member States,
• the Commission will help initiative organisers by providing a user-friendly guide and setting up a point of contact,
• if an initiative manages to collect one million signatures, a proper follow-up will be guaranteed, including a public hearing,
• Member States will choose how to verify the authenticity of signatures.

 

 

The Wikileaks Cablegate – a Legal Backgrounder

Apart from the understandable hype surrounding the Wikileaks Cablegate, there are many legal questions that need clarification. I have tried here to summarize available sources and comments on the different aspects of the Cablegate.

1. Wikileaks Cablegate as a violation of espionage laws

Australian and US law enforcement agencies are reportedly studying the possibility of criminal charges against WikiLeaks founder Julian Assange, including charges under the Espionage Act, for publishing classified US diplomatic cables. The US Espionage Act was adopted in 1917. There are some opinions that the Espionage Act is generally viewed as outdated in light of more modern case law on the First Amendment, also shown in the federal government loss in the Pentagon Papers case. Others say that if the US really believes that the Espionage Act is a constitutional law that ought to be enforced then they’d better be prepared to go after the New York Times, Le Monde, Der Spiegel, and El Pais, all of which published the classified cables after being granted early access and were part of a clear conspiracy with Wikileaks to break the Espionage Act.

U.S. Congressman Peter King has also vowed for the US to declare Wikileaks a terrorist organization, which would presumably allow the US to use anti-terrorist legislation, possibly Title VIII of the Patriot Act. There, however, provisions allow prosecuting the person who gained unauthorized access and caused subsequent damage to a protected computer, which could only be applied to the person who stole the cables in the first place.

In conclusion, it is possible for the US government to use the Espionage Act, but it will face many hurdles due to its potential unconstitutionality.

2. Julian Assange’s Rape Conviction

INTERPOL has made public the Red Notice, or international wanted persons alert, for WikiLeaks founder Julian Assange at the request of Swedish authorities who want to question him in connection with a number of sexual offences. However, INTERPOL cannot demand that any member country arrests the subject of a Red Notice.

Assange’s lawyer, Mark Stephens has previously said that the allegations were made after Assange had consensual sex with two women who turned on him after becoming aware of each other’s relationships. Sweden’s Supreme Court was reviewing Assange’s appeal of the order to detain him. Court official Kerstin Norman, who is handling the case, said a decision is expected late Wednesday or Thursday.

There is reportedly also a European arrest warrant for Assange by the Swedish authorities, but it was incorrectly filled out.

3. Amazon Hosting for Wikileaks

Amazon Web Services has stopped hosting Wikileaks. This was done for unspecified reasons, but as Larry Dignan points out, Amazon states clearly in its terms of service that it can host you as well as terminate an agreement at will.

4. Death Threats to Julian Assange

Certain individuals in the US have publicly called for the murder of Julian Assange. In US case law advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act. I am not an expert in US law, but it appears to me that these threats constitute a violation. However, it is not clear whether someone in the US or Australia would want to prosecute those threats. In Bulgaria or in the European Union in general these threats would be prosecuted.

5. Conclusion

Three developments should be observed:

• if and how the US decides to prosecute Wikileaks and/or the newspapers that leaked the cables, and
• how the criminal case against Julian Assange is processed by the Swedish prosecution and courts, and
• whether some legal action is taken against individuals that incite the killing of Mr. Assange.

 

 

No Comment: Basescu, Sarkozy and Berlusconi

Below is a video shot during the recent NATO and EU summit in Lisbon. The supporting text is in French. Hat tip: J. S. Lefebvre.

Strategy for the Implementation of the Charter of Fundamental Rights

The European Commission has adopted its Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union. The main points:

1. Guaranteeing that the EU is beyond reproach in upholding fundamental rights

All proposals for EU legislation must respect the Charter. On the basis of a fundamental rights “check list,” the Commission services will identify which fundamental rights could be affected by a proposal and assess systematically the impact on these rights of each envisaged policy option.

The Commission will launch an inter-institutional dialogue to determine methods for dealing with amendments that raise questions of compatibility with fundamental rights.

The Commission will use all tools available, including infringement proceedings when necessary, to ensure compliance with the Charter in the implementation of EU law.

2. Improving information for citizens

Citizens will have access to information about legal remedies in all Member States through the Commission’s new e-Justice portal in 2011.

The Commission will explain when it can and cannot intervene on fundamental rights complaints where these are outside the scope of EU competence.

3. Monitoring progress

The Commission will publish an Annual Report on the application of the Charter. The report will monitor progress in the areas where the EU has powers to act: showing how the Charter has been taken into account in concrete cases (such as when new legislation is proposed).