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International Law and European Migration Policy: Where Is the Terrorism Risk?

by Didier Bigo 1,* and Elspeth Guild 2
1
Sociology/Sciences Po Paris, 75007 Paris, France
2
Law, Queen Mary, University of London, London WC1E 7HU, UK
*
Author to whom correspondence should be addressed.
Received: 21 July 2019 / Revised: 27 October 2019 / Accepted: 11 November 2019 / Published: 18 November 2019
(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

Abstract

This article examines how international law in form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this to national law. Instead, the intersection of national security—most commonly in the form of concerns about terrorism and migration—takes place in political discourse, which acts as a passerelle for various types of state violence against people classified or suspected of being migrants. We examine this mechanism that we call an insecurity continuum driven by the politics of fear in a European context. This is a politics that takes place outside of international law but has the effect of limiting access by individuals to international law protections, particularly in the case of people who claim international protection against persecution or torture.
Keywords: international law; migration; terrorism; national security; (in)security international law; migration; terrorism; national security; (in)security
“On 10 December 2001, on the occasion of Human Rights Day, 17 Special rapporteurs and independent experts of the Commission of Human Rights expressed their concern over reported human rights violations and measures that have targeted particular groups such as human rights defenders, migrants, asylum-seekers and refugees, and ethnic minorities, political activists and the media. Ensuring that innocent people do not become the victims of counter-terrorism measures should always be an important component of any anti-terrorism strategy.”
Mary Robinson (former) UN High Commissioner for Human Rights, 20 March 2002.

1. Introduction

In this article we examine the relationship between international law, migration, and security from two perspectives: first we interrogate the current state of international law regarding the two issues; (a) migration from the perspective of the human rights acquis on which everyone, including migrants, are entitled to rely in respect of their treatment by states; (b) anti and counter terrorism measures adopted at the UN that are intended to guide states actions as regards this issue both as a national and transnational one. What we describe is a framework in which there is legal clarity regarding rights set out in binding instruments to which states have committed themselves by virtue of their ratification of the instruments. Although migration is a much contested issue in the international community, notwithstanding the adoption in 2018 of UN Marrakesh Global Compact for Safe, Orderly and Regular Migration (GCM), there are many instruments which include references to the protection of people crossing borders. Among the first, as we note, is the international protection of refugees, where people fleeing across borders to seek protection are often categorized by the state from which they have fled as terrorists but are recognized and protected by the destination state as refugees. The international community has not widely embraced, by ratification, the incorporation of general human rights protected for everyone (including migrants) by other conventions adopted under the Universal Declaration of Human Rights for migrants specifically, as proposed in the Migrant Workers Convention. However, in the next substantive international development related to migration—the adoption of the Palermo Protocols against Trafficking and Smuggling of People—the move towards the use of transnational criminal law in the migration field is not justified on the basis of the fight against terrorism. One the other hand, the UN instruments on anti- and counter-terrorism that are legally binding make no reference to migration as an issue. In the soft law instruments, UN Security Council Resolutions etc., however, the link between terrorism and migration appears and is an important theme.
In this first part of the article, our conclusion is that the international community when adopting legally binding measures which must be ratified by states there is no appetite to mix anti and counter terrorism with migration. However, there is such appetite in the political institutions of the UN, in particular the Security Council, where the two distinct fields are mixed together and states are encouraged or at least provided comfort to take measures that target migrants as potential sources of terrorism. The Security Council, here, represents within the UN, the policy of a minority of countries (mainly part of the Global North) trying to discourage flows of people coming to their countries if they are poor tourists. This involves engaging in a dynamic of deresponsibilisation of the national political class regarding the negative effects of their security policies abroad and the link between military interventions and transnational terrorism. The implicit (and sometime explicit) links they make between terrorism and the arrival of foreigners propagate negative stereotypes of migrants via an (in)securitisation process justified by the protection of ‘their’ people, beyond the traditional meaning of national security in cases of emergency situations. This works when it is developed transnationally and along lines delegitimising international law.
In the second part of the article we examine how the UN political declarations both reflect and provide cover for mixing together the fields of migration and security in Europe. Taking as our case study, the European Union, in particular, we examine the politics of anti- and counter-terrorism, including the rhetoric and academic analysis, and reflect on the actions that European states have taken that merge the two using governance tools which are adopted by exceptional procedures with weak legality or applied extraterritorially, using actions outside the physical territory of their states as a partial shield against the human rights claims of those affected by the measures (migrants). We have not included here an analysis of the legal challenges either at supranational courts in the EU and Council of Europe or the UN Treaty Bodies brought by people affected by these measures taken on anti- and counter-terrorism grounds and for which the relevant states claim support from the UN resolutions. We recognize that this is a developing field but it is beyond the scope of this article.

2. International Law, Migration, and Security

What is the relationship of international law with migration and security? On the three concepts, international law is perhaps the easiest to determine as in the 21st century, its key component is international treaties signed and ratified by states. Thereafter its content varies depending on the subject matter, from fairly relaxed in respect of international contractual arrangements where many elements can be included to migration where there is intense resistance to any definition of international law that extends beyond formal commitments. One of the contemporary experts on international law, Brownlie, states that material sources of custom capable of forming international law include diplomatic correspondence; policy statements; press releases; the opinions of government legal advisers; official manuals on legal questions (e.g., manuals of military law); executive decisions and practices; orders to military forces (e.g., rules of engagement); comments by governments on ILC drafts and accompanying commentary, even the practice of international organs and resolutions relating to legal questions in UN organs, notably the General Assembly.1 In the field of migration, some states have been particularly vigilant expressly to limit the scope of international law from developing more widely on the basis of sources other than treaties. This approach is particularly evident in the U.S. government’s statement on the UN’s Global Compact for Safe Orderly and Regular Migration 2018, where it issued a statement in explanation of its resistance to the ‘Compact’ (a term not defined in international law) just before the date of adoption. The purpose of the statement was not only explanatory but also to encourage other states to reject the Compact. The U.S. Mission to the UN in its National Statement of 7 December 2018 stated: “We believe the Compact and the process that led to its adoption, including the New York Declaration, represent an effort by the United Nations to advance global governance at the expense of the sovereign right of States to manage their immigration systems in accordance with their national laws, policies and interests.” (United States Mission to the United Nations 2018).
The term migration is less easily defined. It is dependent on the definition of borders and citizenship as inherent in the concept is the movement of a person from one state across an international border into another. The key to this movement being migration is that the state into which the person arrives is not one where he or she is acknowledged by state authorities as being a citizen. Thereafter, the issue of what other attributes the person must have to be a ‘migrant’ are virtually limitless.2 Some definition include the objective of the person in moving, others focus on length of time which he or she plans to stay while still others try to find the definition in the national of the law of the state of arrival.3 None of these definitions are consistently accepted in international law. For our purposes, we will include forced migration in the concept of migration, including refugees. This is because it is one of the areas of international law where there has been a most substantial amount of international treaty making. The third concept, national security, is also elusive.4 While the Cold War continued, national security was mainly defined in terms of military security of state territory and espionage. However, with the fall of the Berlin Wall, the meaning of national security moved into a variety of other areas such as internal security, policing, industrial espionage and, more recently, environmental security and even phyto-sanitary security.5 In the first part of this article, we examine how international law in the form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this to national law. Instead, the intersection of national security—most commonly in the form of concerns about terrorism—and migration takes place in political discourse, which acts as a passerelle for various types of state violence against people classified or suspected of being migrants. We will examine this mechanism that we call an insecurity continuum driven by the politics of fear in a European context. This is a politics that takes place outside of international law but has the effect of limiting access by individuals to international law protections, particularly in the case of people who claim international protection against persecution or torture.

3. Treaties, Migrants, and Security

The first group of persons crossing international borders whose act of crossing a border is captured by international law is refugees. The international law definition of a refugee requires the person to be outside his or her country of nationality (or habitual residence). One of the key controversies in the field of international refugee law is the extent to which allegations of terrorist activity intersect with the right to international protection of refugees.6 The 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol7 make specific provision for exclusion from refugee status on a number of grounds, which include political and non-political violence. The 1984 Convention against Torture, Inhuman or Degrading Treatment or Punishment (Torture Convention) does not permit a state to send a person to any state where there is a real risk that they will suffer treatment contrary to the Convention.8 A similar interpretation has been given to the counterpart provision of the 1950 European Convention on Human Rights (ECHR).9 This means that in international refugee law, where there is a real risk of torture if a person is sent to another country, it is irrelevant whether the person is engaged in terrorist activities. The individual has an international law right to remain on the territory of the host state.
Once one leaves the territory of refugees and other persons in need of international protection, one enters an area where the international community has not been particularly active in drafting, adopting, or ratifying international conventions. At the UN, there has been a notable lack of enthusiasm among developed world states for the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Migrant Workers Convention).10 The reasons for this are multiple, though the most commonly cited is the contested relationship of migration as a core subject matter of state sovereignty.11 The Migrant Workers Convention itself does not contain the word terror(ism). There are a number of provisions relating to crime and the right of migrant workers to fair trial guarantees in respect of criminal charges but not terrorism.12
The silence of the Migrant Workers Convention regarding terrorism may be related to two factors: first, the Migrant Workers Convention provides fairly standard provisions on the treatment of migrant workers within the criminal justice system. Thus, where lawfully present migrant workers are charged with criminal offences that have a terrorism dimension, the fair trial provisions apply. Secondly, the Migrant Workers Convention provides limited protection against expulsion to migrant workers with respect to their residence status. If states choose to curtail work and residence rights of migrants and to expel them on the basis of allegations or suspicions of terrorist activities there is no specific provision of the Migrant Workers Convention that will protect the worker and his or her family. Article 56(2) provides that expulsion shall not be resorted to for the purpose of depriving a migrant worker or a member of his or her family of the rights arising out of the authorization of residence and the work permit. The wording of this provision in the negative, allowing substantial room for manoeuvre for states regarding the grounds in which they can invoke for the purposes of expelling migrant workers. Where states are concerned about the terrorist threat that migrants are suspected of constituting, they deploy their criminal justice systems (the only option available in respect of citizens) or they may simply expel or deport them. The Migrant Workers Convention is silent on the subject.
After the Migrant Workers Convention, the UN moved to a rather different dimension regarding the international regulation of movement of people across international borders—the fight against smuggling and trafficking of people. The two Palermo Protocols13 supplementing the 2000 United Nations Convention against Transnational Organized Crime (CTOC)14 provide the framework for a somewhat different approach to regulating migration. Here, the focus is on promoting an international effort against the either irregular or unwanted movement of people across international borders through the association of these border activities with criminal activities including the exploitation of people.15 Criminal law is the central focus of the protocol, not human rights or refugee protection. There is no shortage of academic work that brings together the issues of organized crime, trafficking in human beings, and terrorism as subject matters. However, in the two protocols, there is no reference to terrorism or terrorists. In the CTOC itself, terrorism is mentioned twice, but only in the preamble calling for a recognition of the link between transnational organised crime and acts of terrorism. In the General Assembly Resolution opening the CTOC for signature, there are two references to terrorists, but again only in the considerations and referring to the need to pursue them. Thus, in the UN instruments, the link between smuggling and trafficking of human beings and terrorism is fragile at the very least.
The UN associated agency, the International Labour Organization, has two conventions relating to migrant workers—Convention No. 97 and No. 143—neither of which uses the word terrorism nor refers to it.16 Migrant workers are defined through labour law and any link to national security or terrorism is avoided. In sum, the formal intersection of migration and national security or terrorism in international legal texts relating to migration is fairly limited.
If one carries out the same research exercise on the UN conventions relating to terrorism (leaving aside the two older UN conventions),17 there is no use of the words migration, migrant, or refugee in the 1997 International Convention for the Suppression of Terrorist Bombings,18 the 1999 International Convention for the Suppression of the Financing of Terrorism,19 or the 2005 International Convention on the Physical Protection of Nuclear Material.20 This seems to indicate an even more tenuous relationship between migration and national security/terrorism from the perspective of the international communities’ formal legal efforts against terrorism. As noted below, however, the whole reason for adopting these treaties was to establish transnational criminal cooperation by ‘prosecuting or extraditing’ offenders who committed terrorism in one state and fled to another, whether those fugitives were citizens of the state from which they fled or third-country nationals. This is to say that they were designed precisely to deal with offenders who were principally foreigners. We will return to the discussion on extradition below. Here, we are simply making the point that migration is not formally mentioned in these treaties, though they are in fact designed to deal with foreigners who may be dangerous. The question of the intensity of the links of the individual to the state of residence is not dealt with.
Thus, this examination of the relationship in international law between migration and terrorism produces very little actual evidence of a relationship from the perspective of the UN international instruments. Nonetheless, the academic world has had little difficulty overcoming this handicap and producing substantial amounts of peer-reviewed articles and books linking the two subject matters. In addition, since 9/11, international law has explicitly linked migration and the threat of terrorism and has required states to prevent the movement of terrorists across national borders. Paragraph 2 of Security Council Resolution 1373 (2001), adopted under Chapter VII of the UN Charter, thus required all states to, inter alia,
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate, or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery, or fraudulent use of identity papers and travel documents.
Many states have accordingly adopted measures in national law that tighten immigration and border controls to prevent the entry or presence of suspected foreign terrorists. It is to this aspect in the European context that we now turn our attention.

4. Outwith International Law? European Action on Terrorism and Migration

The actions of European states in their fight(s) against terrorism have tended to enjoy wide support in national public opinion. This is not in the least because there is a public perception or framing of terrorist acts that is largely similar—terrorism is conducted by hostile, clandestine organisations and targets unarmed civilians randomly. This presents terrorism as always cruel and unjust and therefore deserving of harsh measures by the state in response. Repression is the legitimate response of the state bureaucracy to protect its population and its territory and therefore is a reaction to terrorist action. In Max Weber’s terminology, it is an expression of the state’s monopoly over the ‘legitimate’ use of violence.21 Because of this framing, anti- and counter-terrorist practices have often been harsher than measures used to respond to other forms of crime and violence in European states.
However, the lack of clarity as to what constitutes a terrorist act has created a great deal of uncertainty regarding a legitimate response. At the less extreme end of the scale, violence during demonstrations or activist actions that include damage to property have been caught by some criminal law definitions of terrorism. At the more extreme end of the spectrum, torture and murder are most frequently not terrorism, though they may be.22 The powers of police to arrest, detain, and interrogate on anti- or counter-terrorist grounds admits a substantial degree of discretion on the part of governments to determine and subject to frequent legislative changes. Yet, too wide a discretion has been found to contravene European human rights on the ground that the law is insufficiently clear for individuals to adjust their behaviour accordingly.23 Special courts and procedures and in some cases the disappearance of juries in favour of specialist judges have been all too frequent and legal challenges on human rights grounds not often successful.24
Opposition by the general public to anti and counter terrorist actions has generally been limited, as long as first, the hostile, clandestine groups are clearly designated; secondly, they have committed serious acts of violence; and thirdly, judicial procedures have largely respected the principles of rule of law. Opposition has occurred, however, particularly when evidence has been revealed that tools of anti- or counter-terrorism have been used to target broad categories of people on the basis of vague criteria, commonly profiling without proof of individual culpability.
It is here that questions arise as to the links between belonging to a minority group and being associated with terrorism. To what extent is there a link between terrorism, protest, and migration, on the basis of a common designation of people perceived to be a danger to society? If the migrants arriving at the borders or the minorities living in the country are treated as potential terrorists by different anti-terrorist agencies, why is this so? Is there strong evidence of a general link between these themes?

5. The Intrusion of Counter-Terrorism in Border Controls, Asylum, and Migration

Debates have emerged between researchers about the existence and the strength of this link. Many authors have discussed how foreigners are often considered responsible for crime at a local level on the basis of rumour and what Stan Cohen has termed ‘moral panics’.25 Research on terrorism inspired by René Girard has shown the mechanisms by which specific groups, often those that are weak or negatively represented in their countries of origin, easily become targets, especially when police fail to quickly identify a perpetrator of a crime or terrorist act.26 Alessandro Dal Lago has emphasized how migrants have been constructed as enemies by the press, explaining how migrants are transformed into ‘non persons’, or persons without rights.27 It is this argument that the work of philosopher Giorgio Agamben has both popularized and exaggerated by de-contextualizing it. In a nutshell, he has claimed that migrants and refugees detained in camps were in a position of ‘homo sacer’, of human beings that can be sacrificed any time, if the wellbeing of the society needs it after a crisis.28
However, beyond these general arguments, there is also more precise evidence of how this link between terrorism and migration has affected the practices of security professionals in their methods, categories and tools. Some authors have evoked a securitisation of migration by analysing the rhetoric of politicians who state overtly that migrants pose a threat, particularly when crossing the borders and creating a ‘burden’ on the society that ‘welcomes’ them.29 They consider that the question of migration is essentially a question of management and control of different types of illegality and the responsibility of police, border guards, and customs officers. Border and anti- and counter-terrorist police (but also police agencies responsible for drug trafficking and money laundering) have increasingly worked together to exchange information, engage in undercover policing, and use pro-active methods of infiltration, as well as electronic surveillance.
Ole Waever, Didier Bigo, Jef Huysmans, and many others have also posited that by the beginning of the 1990s a process of (in)securitisation had taken place, where migrant and refugee issues had become the primary responsibility of ministries of interior, and within these, of the people in charge of terrorism, drugs, and serious crime.30 They considered that this link was in some ways the construction of an insecurity continuum, transferring the legitimacy of the struggles against terrorism towards more dubious forms of illegality relating to migration management in the nascent field of an Area of Freedom, Security and Justice (AFSJ) in the EU.
Numerous studies have shown that migrants have been increasingly associated with a rhetoric of illegality, linked to such crimes as drug trafficking, human trafficking, money laundering, and support for terrorism.31 These works have highlighted how the terminology of migration has been ‘contaminated’ by their proximity with criminal language and used to justify anti-crime means to tackle migration. If Waever has insisted on the role of language, other scholars emphasise information sharing between police organisations to expand their control beyond traditional crimes, and their attempt to gain more control over external security.32 They have also highlighted the European model of creating an area where systematic border controls internally were abolished, and where even nationals from third countries were allowed to move without presenting passports or ID documents, moving the ‘burden’ of controls onto the so-called external borders, as well as to services belonging to countries managing the periphery of Europe. This is the Schengen regime, which we discuss in further depth below.

6. The Three Dimensions of the (In)Security Continuum

A security claim is not only a discursive practice, it is a mix of discursive and non-discursive practices. To analyse a process of (in)securitization, one has to examine how actors construct an (in)security continuum. This operates transversally by transferring the legitimacy of the fights against certain threats to other less legitimate priorities of the authorities, for example, the transfer of measures, special laws, and technologies reserved for major violence and bombing, to drug trafficking and migration management in the name of their ‘illegality’ or ‘unwantedness’.
Because the different categories of threats, risk, illegality, and information concerning victims, are increasingly managed in a coordinated way by diverse bureaucracies in the public realm (intelligence services, police, border guards, immigration officers, consulates, asylum offices), and because they are often managed in the same network of interconnected databases, a virtualisation of the world is created that generates fear about possible futures and worst case scenarios. This, in turn, creates spirals of preventive discourses and (in)security claims. All these elements have favoured the emergence of transnational guilds of professionals and experts, sharing the same way of justifying their ambiguous practices.33 This has been called the process of (in)securitisation, which is embedded in dynamics between actors. Most of the actors prefer to stay silent and to act quietly until they are obliged to explain their actions. They enact justification more than they frame securitisation by speech acts, but the two can work simultaneously.34
As Huysmans observed, security claims are not always about exceptional measures and existential threats. There may be more mundane examples other than big international crises. Security claims are an everyday practice of many actors. Their exceptionality is often embedded in law-making processes but do not suspend them.35 Technologies play a central role in developing interconnections between previously separated domains of activities. They develop categories of thoughts concerning proactivity, intelligence-led policing, prevention, and precaution, which transform security practices and logics, orienting them towards the logic of prevention, of monitoring the future, a form of virtualisation, morphing one future from the traces left from the past on the digital world.
In assessing the value of the notion of a ‘(in)security continuum’, it must not be reduced to a performative speech act designating a group of migrants as enemies. Although speech acts are certainly important, especially in the realm of public debates and politicians’ speeches, they are also part of the framing of the law. However, if this is the first dimension, it is not the only one. From our perspective, the semantic continuum of (in)securities and the discursive operations that are taking place around contemporary conceptions of security only make sense if theses discourses reflect the practical continuum of coercion and surveillance practices of the different professionals of security (public and private), as well as the structure of their oppositions between often a law enforcement and criminal justice approach and a preventive, predictive intelligence-led approach, which implements these discourses in everyday life. We disagree with the vision by which the narratives are creating the values that are then implemented. We insist, on the contrary, that the discourses are practical regimes of justification for practices that existed previously but were not acceptable. The core element of the (in)security continuum is therefore its second dimension, that is, the routine and often silent practices that the different professionals of security (police, border guards, immigration offices, intelligence services) are enacting, not independently, but in relation to what the others are doing, in order to play with the logics of distinction or to develop mimetic practices.
The strength of the insecurity continuum is therefore related to the success (or otherwise) in transferring practices and their regimes of justifications from one area where they are justified by a certain level of violence to areas where this level of violence is not apparent. However, in these new spheres, the fear of violence, or sense of uneasiness, exists and is fanned by preventive discourses. The continuum is therefore not linear. It depends on the situation in which migrants or refugees are associated either with terrorism (though this can also be with money laundering, as victims of traffickers or causes of trafficking). The inventiveness of the narratives is extreme, but the ‘grammar’ of the practices and their justification is based on a limited range of combinations constituting a settled repertory.
The continuum of practices linking anti- and counter-terrorism and migration is therefore not at all a soft mechanism of transfer of tools for better governance of violence or a hegemonic mechanism imposed by some sovereign speech acts. It is the expression of struggles between actors seeking to expand or shift their routine activities from one specialization to another. In so doing they engage people as allies in the political field as well as in the realm of industries selling technologies. This also reflects the trajectories of the different police services and their missions. These struggles are about who benefits from the pathways created by the insecurity continuum justifying coercive and preventive measures beyond the realm of criminal law and invading administrative law with more coercion and less control by the judiciary. They are central to analysing the evolutions between police, border guards, customs, and even internal intelligence services, external intelligence, and military operating inside their own territory on surveillance missions. A continuum is not synonymous with peace or simplicity, it is a boundary of bureaucratic fights. Further, it is the proof that the expansionist move of security in different domains of life is not just the effect of a discursive political transformation but an effect of the struggles for recognition between the different professionals of security and the reformulation that eventually politicians validate.36
It is here that the third element of the process of (in)securitization is central, as it profoundly affects people’s human rights without their awareness. This third element is the ‘mediation’ performed by the technological continuum induced by the use of dual- or multi-purpose technological systems, which ‘neutralize’ the internal fights by claiming they provide technical solutions to security. Their claim is that access to these technologies, once carefully regulated by right of access, will pacify the services’ rivalries. This is why in our view security technology has become a mandatory component in the framing of EU security policies. Technology has been claimed to be necessary for the protection of EU citizens and a guarantee of ‘efficiency’ in the contemporary Europe (in)security landscape.37 Although certainly expensive, the efficiency of these instruments remains insufficiently evaluated.
Thus, if this argument of neutrality of technology and the transformation of the politics of security into a technique of security is shared by many actors, it is not only because of external factors. It is because most professionals consider that technologies are central to their own recognition as powerful players in the field of security. We need, consequently, to be aware that the differentiated uses of technological systems by the various security sectors, particularly between the field of defence and the field of policing, are not at all neutralised by the fact that they may use the same technology or the same inter-operable platforms between different databases.38 Despite the development of, and investment in, so-called ‘dual use technologies’ that can be used both for military and civilian activities, and the growing reference to ‘security technologies’ intended to encompass both war- and crime-fighting, there seems to be no fusion at all, but rather trench warfare between these two domains. Furthermore, even when similar technological systems are put in place by the military and the police, these usages are nonetheless framed by differentiated doctrinal considerations, for example, for so-called ‘non-lethal’ weapons.39
The effects of the reliance on security technologies have also created difficulties for human rights, especially migrants: firstly, because most of the technical systems currently deployed for the purpose of border control and surveillance target migrants. Secondly, it made it possible to show how the scope of these technical systems was progressively widened to include EU citizens via, for instance, the growing reliance on biometric identifiers or the devising of frequent traveller programmes for immigration control in airports. One key argument that was developed in this regard is that European border control and surveillance practices facilitated a blurring of the notion of freedom.40 Freedom is confused with comfort or speed in a context where the surveillance of travellers becomes generalised. Furthermore, even when a certain attention is dedicated to issues of privacy and data protection, other rights that might be endangered by practices of border control and surveillance such as human dignity or non-refoulement are obscured.

7. The Present of the (In)Security Continuum in Europe

The construction of a semantic link between migrants as others who are dangerous for the people living in the state is then easily made. Migrants are constructed in the discourse as outsiders. They are strangers coming into the territory not for tourism but for other motives. They do so when they travel, cross the borders, regularly or irregularly, but overstay after entering. Even when they find work and acquire a legal status, indeed, even when they themselves acquire citizenship or when their children are born citizens of the state, they are not considered real insiders. They are considered as different and associated with the outsiders and their country of origin or that of their parents. The old terminology of assimilation is no longer in fashion, but the terminology of integration is seen as a one-way effort for them to adjust and not for the society to adjust by giving them a place in it. The sense of unease is profoundly associated with right-wing rhetoric on patriotism. However, it can be heard in left wing parties when they play security arguments to protect some against others instead of playing the equality argument. Tabloid press in many countries contribute to the association between everyday petty crime, poverty, and migration by covering differently crime and incivilities carried out by ‘visible’ migrants, those with visible immutable characteristics, and citizens.

8. Playing out the (In)Security Continuum

After the Paris attacks on 13 November 2015,41 anti-terrorism objectives at the national and European levels became a justification for action on migration, asylum, and border control. This was particularly so in respect of the securitisation of Calais, an informal encampment in France of migrants seeking to cross the English Channel and get to the U.K.42 and the reintroduction of intra-Schengen state border controls and managing the ‘refugee crisis’.43 The so-called Calais Jungle was framed by a number of media outlets as a place outside state control and thus a source of possible haven for terrorists.44 The unexpected arrival of over a million refugees from Turkey to Greece and across the Balkans to other EU states without security screening in 2015 caused many policy makers in Europe to worry about the security and terrorism risk of such un-organised movement.45
The 13 November 2015 attacks had a profound impact on policymakers, not only in France but across the EU. One of the most pronounced was the struggle about the role of border controls in anti- and counter-terrorism action. This was because the means of accessing the EU by some of the attackers was within the chaos of the refugee arrivals, mainly from Turkey in the summer and autumn of 2015, which resulted in more than 1.2 million asylum applications in the EU that year. This constituted almost a doubling of the number of asylum claims in comparison with the year before and took some EU interior ministries by surprise. The two fields, terrorism and migration, have a long history of being intertwined by some policy makers in Europe and elsewhere. The presentation of refugees and migrants as potential terrorists is not new but the flight of many people mainly from Syria through Turkey to Greece and onwards, including young men, was a source of much media interest.46 Academics also became increasingly interested and started to publish on the impact of the Paris attacks on refugees in Europe.47 The motif of terrorists as people who entered or re-entered the EU travelling with refugees occurred again and again over this period. There was a general assimilation of Islamic fundamentalism, terrorism, and Muslim refugees seeking protection in Europe. This narrative became omnipresent irrespective of efforts in some quarters to keep the subjects apart.48
The difficulty of keeping the two fields apart was exacerbated by the decision of the German government on 13 September 2015 to re-introduce border controls with Austria as a result of the security deficit that the arrivals of unexpectedly large numbers of refugees (primarily from Afghanistan, Iraq, and Syria) was creating in Germany (and they are still in place as a temporary measure at the time of writing in July 2019). This affront to the Schengen system of passport-free travel across the Schengen area of 26 European states was justified by the German authorities including on the grounds of public order and internal security.49 A number of other Schengen states also introduced temporary border controls with their neighbours, including France (on the basis of the terrorist risk), Austria (refugee arrivals), Denmark (refugee arrivals), Sweden (refugee arrivals), and Norway (refugee arrivals). Currently the controls have been extended until 11 November 2019. By September 2015, the so-called refugee crisis in Iraq and Syria was gradually changing into a solidarity crisis by regarding forced migrants as a Schengen borders crisis.50 This privileged overtly the security of one state51 over the security of people fleeing danger and the institutions responsible for solidarity. In all cases, the states claimed that their security was at risk because of the failure of some state up the chain to control, register, and fingerprint the refugees—the language of (in)security.52 The collision of refugees and terrorism in the language and practices of European states had taken place.
There were three main ways in which refugee movements were securitised by the EU in the period following the Paris attacks: border closure, hotspots, and relocation.53 The EU commenced using the terminology of hotspots to designate places in Greece (on some islands) and Italy where anyone arriving irregularly including asylum seekers was to be held and registered for the purpose of making an initial evaluation of his or her claim and then either relocated (or at least some of them) elsewhere in the EU or expelled. A complicated system for relocation from Greece and Italy was designed and adopted (in the face of great opposition from a number of Central and Eastern European Member States) for a temporary period from September 2016 and ending in September 2017. When it became apparent that relocation was not going to be a big success, 29,000 people were relocated from Greece and Italy to other member states over the life span of the relocation decisions out of a promised 160,000,54 the EU entered into an agreement with Turkey that irregular arrivals from Turkey would be sent back in a truncated procedure. They would be collected in hot spots whence return to Turkey would take place even if they were Syrian asylum seekers. However, for the Syrians, a one-for-one system was put in place, whereby the EU would take a Syrian refugee directly from Turkey in exchange for the return of every irregularly arriving Syrian refugee (or asylum seeker) to Turkey from Greece.55 The idea was that people arriving irregularly in Greece and Italy would be stopped in the hotspots and then either relocated to another member state, expelled outside the EU or (when arriving in Greece), and sent to Turkey which would determine their asylum applications. For Italy, the point of departure is commonly Libya, where no party has succeeded in consolidating a durable claim to governance over the whole of the territory since the fall of (former) President Gaddafi in 2011.56 Thus, no deal such as the EU Turkey one could easily be made with Libya, though undoubtedly that was the preference of a number of policy makers (instead Italy and Libya made arrangements bilaterally).57 Hotspots and relocation were legally based on the solidarity clause in the EU Treaties but no effective remedy was included for refugees when their right to non-refoulement guaranteed by the UN Refugee Convention,58 the Convention against Torture,59 and the European Convention on Human Rights60 was at risk. Further, academic opinion regarding the safety of Turkey as a country of asylum for Syrian refugees has been overwhelmingly negative.61
One example of the way in which refugee movements were securitised by the EU was in the response to the humanitarian situation on Lesvos, Greece—one of the main places where hotspots were established. This included the differentiated granting of refugee status according to nationality a challenge to the principle of equality among refugees.62 A shorthand that asylum seekers of some nationalities, in particular Syrians, were bona fide, whereas others were not, such as Afghans, had consequences for the legitimacy of the hotspot regime. Although Syrians and Iraqis were much more likely be given refugee status, others such as Afghans were more likely to be labelled as ‘economic migrants’ and refused any international protection status.63 The analysis that the authorities of Afghanistan, strongly supported by EU and US forces, were able and willing to protect their citizens was accepted by refugee determination authorities in many parts of Europe. The simple fact that Afghanistan was actually in a protracted civil war was obscured. Many academic commentators have questioned the safety of Afghanistan for many of its nationals and consider that the civil war there is certainly sufficiently intense to justify providing humanitarian protection to Afghans in the EU.64 The European asylum authorities’ theory was that those rejected would be expelled to wherever they had come from (usually Turkey) and become the burden (or opportunity)65 for that country not the EU. However, in practice expulsion was the exception and, in fact, most arrivals remained blocked on the Greek islands, becoming dependent on smugglers to get them further along their route or journey.66 Instead of reacting to the situation as one of a humanitarian nature, the EU took a security-focused approach, obliging the Greek authorities to control refugees’ movement off the Greek islands by blocking ferry transport for them on the basis of specific identity documents.67 The Greek authorities agreed to permit only those assessed as vulnerable to leave the islands for Athens, where a full range of services were available to asylum seekers and refugees.68
Another example can be seen in the French government’s response to the informal refugee encampments around Calais where people seeking to go to the U.K. accumulated in dreadful conditions. Calais as a magnet for people seeking to make asylum claims in the United Kingdom is an old story. In the late 1990s, the Red Cross served a camp in Sangatte (a neighbourhood of Calais) where people congregated seeking to go to the U.K. It was closed after an agreement between the U.K. and French authorities in 2002.69 The agreement included the U.K. accepting a substantial number of persons from the camp.70 However, the so-called solution of ‘Sangatte’ was short-lived. Calais is one of the closest ports to the U.K. from the continent and the place from which not only the Euro-tunnel starts to end in Dover but also the place where hundreds of thousands of vehicles arrive to cross by ferry to the U.K. (over 3.5 million per year).71 The possibility of managing to cross to the U.K. in this flow, which includes cars, trucks, trains, and buses, makes Calais a destination for those seeking to move west. This actuality does not change with time but will only change when the U.K. is no longer an interesting destination (or removes border controls with France). The build-up of people living informally around Calais while seeking to leave France for the U.K. has occurred constantly since the U.K. put into place strong border control measures to prevent passage to persons without the right documents for regular passage from the late 1990s.72
The Calais story has been around for 25 years, yet it rises and disappears again as a policy crisis depending on the importance that political parties on both sides of the Channel place on border controls and the drama of their execution. The Sangatte experience was forgotten for a number of years, though the phenomenon of people living irregularly there and seeking to catch a ride across the Channel continued. The political configurations in both France and the U.K. in early 2010 permitted the issue the ability to gather political salience again.73 Not to be outdone by the so-called migrant/asylum crisis of 2015–2016 on continental Europe with the movement of people across the Balkans into Austria, Germany, and elsewhere, the Calais area became a matter of media attention again.74 This was also in part the result of the fact that some of the people who were tramping across the Balkans in search of safety had family or friends in the U.K. and hopes to get there to seek protection.75
The French authorities sought to contain people by building a new camp out of shipping containers in 2016, and refugees were given three days to leave their informal camps and move into these.76 Those who entered the containers were fingerprinted and registered by the French authorities. The consequence of this, as the people themselves were all too aware, was that if they got to the U.K., the U.K. would be able to identify them as the responsibility of France under the Dublin arrangements for allocation of responsibility for asylum seekers. In theory, if not in practice, they would be sent immediately back to France. But, in any case, they would have great difficulty entering the asylum system in the U.K. Thus, the solution offered by the French authorities would effectively frustrate the objective of the people living in the informal camp.
Further, conditions in the containers were poor, resulting in complaints by those who had been persuaded to move into them. In any event, the container option was no solution for the people who were supposed to be attracted by it as it made their objective of getting to the U.K. more difficult. Another French government policy attempted in 2016 was to relocate people from the informal Calais camps to the south and east of France. This dispersal strategy failed because no durable reception conditions were put in place at the destinations, and thus very rapidly those sent to the south and east were homeless again and without state assistance.77 The result was that many of those who had been relocated to the south or east went back to Calais because they wanted to go the U.K.78
The inability effectively to control the movement of persons, foreigners seeking asylum, coupled with the French authorities’ assurances to their U.K. counterparts that they would resolve the situation, gave rise to increasing use of violence. Media began to speculate on the possibility that terrorists were hiding among those in the irregular camps, a rumour that permitted the escalation of violence in the state’s response.79 In a burst of rather excessive violence,80 the French authorities ‘closed’ the irregular camp in Calais in October 2016 following an agreement, once again, with the U.K. authorities that irregular departures to the U.K. would be stopped.81 Despite the French authorities’ attempts to clear the so-called “Jungle” in 2016, the informal camps in the Calais region persisted. Of course, this effort, highly mediatised as it was and of substantial expense to the French authorities, did not end the arrival in the Calais region of people irregularly present in France but seeking to get to the U.K. By 2017, newspapers were reporting the ‘new’ jungle and the repressive measures continue without cease.82 However, the justification of the use of substantial violence against asylum seekers was on the basis of their ambition to move and rumours of terrorist links. This led to these people becoming the legitimate targets of state violence.

9. Justifying the Unjustifiable?

The intersection of anti- and counter-terrorism policy and asylum policy permits the justification of the application of greater state violence against people, be they suspected terrorists or asylum seekers, refugees, or migrants. The terrorist attacks in Paris in November 2015 coincided with the arrival of a few million asylum seekers and refugees primarily crossing into Europe from Turkey through the Balkans to get to places of safety, that is, places where they were not subject to daily harassment and persecution. The arrival of people was viewed by some authorities in some European states as such a great danger to public order that even border controls on persons crossing between Schengen states had to be reinstated to bring order to the situation. In such a logic of control and the imperative to know who is crossing borders, the occurrence of terrorist attacks claimed by Islamic extremists in the Middle East provided a fertile environment for weaving together two quite separate issues: one, a threat of terrorist attacks inspired by Islamic extremists, the other, the arrival of more people than anticipated who sought international protection from parts of the world torn apart not least by Islamic extremists. Instead of separating the issues and dealing with them in their distinct policy and practice domains, a number of member states and EU actors merged the two into one composite danger. This move then made possible the release of state violence against both suspected terrorists in a state of emergency and asylum seekers and refugees, a level and ferocity of state violence that is of questionable consistency with their constitutional protections and human rights obligations.
State violence has been made invisible by denying the right to leave countries in civil war such as Syria. The argument is that the protection of ‘our’ citizens requires the violation of the human rights of others. Claiming the right to close borders allows those inside those borders to be less directly affected by the plight of those seeking international protection. A series of narratives in Europe work to change the image of solidarity towards refugees to an image of protection against invasion and the arrival of terrorists. However, this transformation of the refugee into a risk and danger would not have been sufficient if without the investment of state sovereignty in border controls including inside the EU’s Schengen area and the creation of hot spots which displace the coercion elsewhere with the pretence that these technologies are innocuous and positive from the perspective of security and countering terrorism.

10. Conclusions

Our conclusion to this article is that international law in the form of international treaties does not privilege a merging of migration (including refugee protection and forced migration) and national security. The relevant international treaties allow some limited scope for states to limit movement of persons and refuse international protection on the basis of national security or terrorism grounds. However, both concepts remain relegated to the national domain. International treaties in the form of human rights, smuggling, and trafficking of human beings and labour standards rarely use the word national security or terrorism, with a very limited exception in the Palermo Protocols against smuggling and trafficking of human beings. Similarly, UN measures aimed at the fight against terrorism rarely mention migration or international protection. That realm too in international law is insulated against the merging of national security/terrorism and migration into a continuum. There is a merging of anti and counter terrorism in UN Security Council resolutions, however, which give some comfort to states which seek to ‘externalize’ their anti- and counter-terrorism activities. We follow this thread through our case study of the European Union, where in the transnational discourses of politicians, media, and right-wing political groups the justification of exceptional measures merges migration and terrorism. Here, there is much evidence of an insecurity continuum where migrants and refugees become the target of speeches, articles, social media, and political positions that merge their arrival and presence into a narrative of national security deficit and terrorism threat that justified extraterritorial actions. Although our case study is limited to Europe, it is evident that this political development is by no means limited to this region. The convergence in different countries of the Global North (the U.S., EU, and Australia especially) of political rhetoric reinforce each national variation of this political move, and often provide a justification on the grounds that one or another state or region is acting less stringent than the others. The EU often plays with the comparison with the measures of President Trump’s USA or Australia to justify the same politics. The claim, overt or covert, is that if the others are acting more harshly then they at least are within the margin of appreciation of international law. In fact, most politicians try to treat security not as a question of their political judgement, but as a technological and coercive answer to threats and danger. This means that their coercive bureaucracies and their private partners are held up as ultimately responsible, rather than the politicians. Transforming security into a technological answer to all sorts of threats, risk, dangers, and hazards allows them to treat flows of travellers as sources of danger for their own societies. They use negative connotations of the term ‘migrants’ associated with poor people from the South acting illegally, or with refugees who are transformed into massive flows of persons, possibly also victims, but in any event invading the country rather than the positive alternative such as ‘tourists’, ‘students’, or ‘the highly skilled’ reserved for migrants from elsewhere. This almost permanent “noise” ends up by affecting the interpretation of legality by non-lawyers. The (in)securitization process in its everyday mediatic presence tends to convince a small but influential sector of the population that international law is in favour of the foreigners and against us, thus pushing a rhetoric of ultra-patriotism and far-right nationalism, helping them to arrive to power or to be disproportionally influential in the political debates. In the end, other politicians dare less and less to use rule of law and international law arguments as a defence for the legitimacy of their actions and statements. This is an unfortunate dichotomisation that divorces moderate politicians from legal arguments, without good reason. Therefore, through this passerelle politics, the field of border control and migration management becomes increasingly harsh and intemperate with regard to the protection needs of the people against whom they are targeted. Policies of a general repressive nature, such as the highly securitised border crossing point between France and the U.K. or the border closure response of some states to the arrival of substantially larger numbers of people seeking international protection in Europe in 2015–2016 across the so-called Balkan route, bring about the physical effects of this continuum of insecurity. People who need international protection are the first victims caught up in bureaucratically generated cultures of disbelief of the protection claim and excessive credulity with respect to possible terrorism risks.

Author Contributions

The authors contribute equally to this paper.

Funding

This research received no external funding.

Conflicts of Interest

The authors declare no conflict of interest.

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11
12
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, adopted 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003); Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, adopted 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004).
13
Adopted 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003).
14
Ibid.
15
16
Migration for Employment Convention (Revised), adopted 1 July 1949, C097 (entered into force 22 January 1952); Migrant Workers (Supplementing Provisions) Convention, adopted 24 July 1975, C143 (entered into force 9 December 1978).
17
Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, adopted 14 December 1973, 1035 UNTS 168 (entered into force 20 February 1977) and International Convention against the Taking of Hostages, adopted 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983).
18
Adopted 15 December 1997, 2149 UNTS 256 (entered into force 23 May 2001).
19
International Convention for the Suppression of the Financing of Terrorism, adopted 9 December 1999, 2178 UNTS 197 (entered into force 10 April 2002).
20
International Convention on the Physical Protection of Nuclear Material, adopted 26 October 1979, 1456 UNTS 125 (entered into force 8 February 1987).
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22
23
Quinton & Gillan (App no 4158/05) 12 January 2010.
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29
30
31
32
33
34
35
36
37
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39
40
41
42
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44
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48
49
Council Document 11986/15.
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51
That is to say its people.
52
European Commission communication Back to Schengen COM(2016)120.
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54
55
56
European Commission’s 15th Report on Relocation COM(2017)465.
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64
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https://www.theguardian.com/world/2017/apr/02/refugees-gather-calais-camp-unaccompanied-children accessed 13 March 2018. Bouagga, Y. (2019). ‘Jungles’ et campements, la condition des migrants en Europe: l’exemple de Calais.
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