by Alejandra Peláez Peñaranda
« Europe will not be made at once or according to a single plan. It will be built through concrete achievements.» Schuman´s Declaration 1950.
The Schengen Treaty was signed for the first time on June 14th, 1985. It answered to the member’s necessity to restrict migratory flows and harmonize external border controls. The Treaty aimed to create an area of free circulation between the States members which gave as a result the suppression of the common border controls. However, to accomplish this objective it was necessary to control illegal migration in order to harden their external borders.
Due to the adoption of measures to ensure the free circulation and guarantee freedom the members needed to reaffirm the community’s security. This is the reason why they were emphatic in the creation of compensatory measures such as a policy for the demand of visa and of a Schengen Information System (SIS) (Ministry of the Interior, Spain). The SIS is a system of common information that allows access to police stations and consular agents to information about individuals, vehicles and lost and stolen objects (Luque Gonzalez, 2004). It is a mechanism comprising national networks known as N-SIS that feeds a central system called C-SIS which is at the same time complemented by the SIRENE network. This network is comprised of representatives of the national and local police and local, customs and judicial system (Luque Gonzalez, 2004).
The adopted measures to ensure freedom of circulation were accompanied by measures called “compensatory” in order to reconcile freedom and security. The objective was to improve the coordination between police, customs and justice services and to adopt the necessary measures to combat mainly terrorism and organized crime. With this objective in mind, it was established a complex information system of data exchange on the identity of persons and the description of search objects (SIS).
In this sense, the SIS allows the authorities designated by the parties to obtain descriptions of people and objects while doing the correspondent consultation at the border’s check point. Also, in order to follow the articles 95 to 100 of the Convention it also allows performing checks in accordance with national law in order to label the foreigners if necessary under the category of non admissible. These articles establish the process while analyzing the issuing of visas, residence permits and admission of foreigners within the framework of the implementation of the dispositions on persons´ circulation (Ministry of the Interior, Spain).
The Schengen legislation focuses specifically on the issue of States members’ security since it mainly search to ensure public order and internal security. This point explains why the SIS, SIS II and the EURODAC aren’t the only institutions involved in the procedure. The Visa Information System (VIS) responds to a proposal made in 2006 to integrate into a single code all the dispositions regarding granting visas, reject, extension, cancellation, suspension or reduction of the duration of the validity of visas (Illamola, 2005).
There can be no doubt that the existence of a system as the one exposed previously generates international disputes. First, it is feared that the exchange of such information may cause human rights violations. There is a high risk to generate an invasion of privacy and a violation of the principle of equality and non-discrimination. On the other hand, we can question the validity of the existence of such a database in an administrative level.
Overall, evidence shows the creation of an administrative unification of Member States. Each Member State is responsible for the access of individuals to the whole of the Schengen territory and they have as obligation not to admit any individual appertaining to a list in the common space (Illamola, 2005) States have at last created a collective defense system of the interests of each of the States.
However, the respect for the decisions of the others makes that every State lose its autonomy to decide what’s better for itself. At the same time this means that the citizens feel restricted their chances of entrance to the community. This last point because due to the fact that the lists do not only refer to dangerous individuals for the Schengen community. On the contrary States must respect the totality of the list even if it refers to individuals whose demand of visa has been denied by interpretations purely subjective.
At this level we can wonder whether the actual system is promote to ensure the individuals’ free circulation or conversely if it looks to limited it. This taking into account that its negative implies the loss of the opportunity, at least for a certain time, to enter the Schengen area. The above because adopting a decision contrary to the one that initially a State took in pursuit of their interests and the interest of the EU means a difficult argumentation and the accomplishment of a number of requirements that put this State in an uncomfortable situation toward others.
This makes that for the safety of the community individuals in disagreement with a certain decision must confront a single administrative body. What would happen if the Andean Community face to a situation like the one mentioned? Between the states members of this community it is also stated the free circulation or transit of persons as a principle in the decision 504, 2001. However, this principle cannot be extended to third States. In other words, free circulation must be guarantee to citizens of States members as an obligation. But when accepting the granting of a visa to a certain individual we must say that it might be seen as a private decision of the State and its interests.
The construction of information systems finally creates a political obligation to members who will not dismiss a State´s consideration to deny a certain permission to a given individual. The problem emerges when we analyze that the decisions are not always based in objective requirements but that they respond to subjective analysis made by each State administrator.
Taking into account the existence of the subjectivity in such lists, it is not appropriate that States feel obliged to follow the same requirements because interests or priorities may not match from one State to another. This is the case for example of States in the Andean Community where Peru’s interest may not be the same of Colombia or Equator.
As corollary of the outlined we can say that the existence of such lists and the obligation to follow them is dangerous to the entire global community. We can even say that since they respond to a subjective decision they can even violate human rights. As an example of this we could think in a violation of the principle of free circulation since that freedom is respected exclusively to nationals of countries members of such an agreement.
The interests, needs and considerations of each State should assert as an expression of their sovereignty with the proviso that the sovereignty is preach from the State and not from the community. The EU should follow the example traced by the members of the Andean Community where effectively the State’s sovereignty is respected. Even though the States are members of a community they have an administrative freedom to decide issues of international relations or foreign affairs.
Bibliography
ILLAMOLA, Mariona. Acervo Schengen: controles en las fronteras. Universidad de Girona. España, 2005.
LUQUE GONZÁLEZ, José Manuel. Schengen un espacio de libertad, seguridad y justicia. Revista de Derecho, Universidad del Norte. España, 2004.
MINISTERIO DEL INTERIOR. España. Recuperado de internet en
http://www.mir.es/SGACAVT/extranje/extschengen/sistema_informacion.html
