Halt! Who goes there?

Photographer: Jean-Pierre Clatot/AFP/Getty Images

EU Without Open Borders Isn't the EU

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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President Francois Hollande has closed France's borders for three months after Friday's terrorist attacks on Paris. But this is only the latest shutdown to threaten Europe's coherence and unity. European Council President Donald Tusk warned last week of a “race against time” to save the 1985 Schengen Agreement, which created open borders among almost all members of the European Union as well as a few other countries.

That's putting it mildly. Germany, the EU’s 800-pound gorilla, closed its border with Austria in September. Even Sweden, the most welcoming European country when it comes to refugees, has implemented border checks.

The race isn't to save Europe's open borders. It’s to save Europe from failing under the weight of its own contradictions.

QuickTake Europe's Refugee Crisis

Start with the practical side. Imagine that you needed to take a passport with you on Amtrak's Acela from New York to Washington, and show it every time you cross a state line. That’s five stops and five passport checks on the three-hour ride. The illustration dramatizes the overwhelming benefit of Europe's agreement. If you want economic integration, the movement of people across borders is one of the two most basic necessities, alongside the free movement of goods.

During the Greek crisis, it was eminently clear that the struggle between Europe's poorer and richer countries grew from a basic tension in the EU structure. Monetary union deprives countries of the familiar sovereign tool of devaluing currency when they find themselves in a financial hole. Yet European states are (mostly) sovereign when it comes to raising taxes and spending their budgets. Germany and Greece pulled back from the brink by negotiating a bailout, but the structural problem remains.

What's undercutting the Schengen Agreement is similarly a structural problem. Open borders mean that anyone -- citizen or foreigner -- can cross without being checked. Countries with open borders give up a classically important piece of sovereignty, namely border controls. Those controls aren’t just symbolic -- they matter for security and social-service delivery alike.

Yet when it comes to taking care of refugees who come into a country, the European states are largely on their own -- like independent sovereigns.

The European mechanism that was supposed to solve this problem with refugees is the Dublin Regulation, which came into force in 1997 and has been amended several times since. The basic principle is that the country where a potential refugee first enters the European Union is responsible for processing his or her claim to asylum. As envisioned, the agreement would’ve meant that potential refugees wouldn’t flow freely across Europe's internal borders, but would stay put waiting for their asylum applications to be processed.

In practice, however, the Dublin system suffers from a basic flaw: Countries are differently situated when it comes to major refugee influxes. Hungary borders Serbia and Croatia, which aren’t part of the Schengen zone, so it's particularly vulnerable to economic migrants from the Balkans. Greece and Italy have thousands of miles of Mediterranean coastline, and so can be reached from the sea. In contrast, if you’re a refugee from outside Europe trying to reach Sweden, you’ll ordinarily have to pass through lots of other European countries unless you're lucky enough to get on board a direct flight.

No surprise, then, that the Dublin system has basically collapsed. Some countries, like Hungary, first try to keep migrants out by building a border fence, then make those who make it through move along to other countries. Even if one has a low opinion of Viktor Orban’s right-wing Hungarian government, it’s easy to see why many Hungarians think they can't afford to abide by the Dublin Regulation.

So what does the EU do to rationalize the border problem in the light of the tremendous flow of human beings from Syria and, increasingly, Afghanistan?

There are several logical possibilities, each fraught with its own challenges. Richer European countries could pay for hardened borders around the whole of Europe, and eventually coordinate their protection. That would make the European Union more like a single country, with unified border control. It might also have security benefits because potential refugees could be vetted before entry.

In essence, that would allow Europe to keep migrants and refugees out, which in turn would allow the free flow of EU citizens across EU borders on the Schengen model. Part of the reason you don't have to show a passport on the Acela is that you do have to show one when you enter the U.S. legally.

The trouble with this approach is not just the expense but also that it might not stop desperate immigrants from trying to enter, particularly from the sea. The European Court of Human Rights has held that refugees cannot be turned back once they’ve been brought on board European flagged vessels. Even if that ruling were reversed, it would be politically difficult for at least some European countries to turn away legitimate refugees.

A softer variant of coordinated border control is coordinated bribery of non-EU countries to keep refugees, paid for by the richer European nations. Such an effort is under way, with proposals to pay Turkey 2.5 billion euros ($2.7 billion) to block its borders with Europe. This seems slightly more palatable politically, but also will only pause, not stop the human traffic to Europe. And it won’t deter potential terrorists who want to cross borders under cover of being refugees.

Another option for Europe is to develop a centralized, coordinated policy for distributing refugees. At present, it's been mostly up to individual European members to decide how many they can take, leading to vast disparities in absolute and relative numbers. The costs of refugees are therefore borne very unequally.

Centralized, nonvoluntary control of refugee placement would itself make the EU much more like a single, sovereign country. But right now it's a nonstarter politically. Even some U.S. governors, who lack the legal power to exclude anyone from their states, are scoring political points by saying they don’t want refugees. Further European integration is hard to achieve under the best of circumstances, and it would doubtless be impossible to get members states to vote voluntarily to give up the sovereign right to decide on the refugees they will take.

The upshot is that Europe's open borders are going to disappear for at least as long as major refugee flows continue. And it’ll be difficult to restore them later.

In its first decade of existence, the U.S. learned the overwhelming difficulties of coordinating 13 sovereignties into a single confederation. Only the impending collapse under the Articles of Confederation drove the country to the federal Constitution. Europe isn't there yet. But the contradictions of sovereigns in a union haven’t changed much in the last couple of hundred years. The European Union will have to evolve or die.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net