Corona and the Renaissance of National Borders

“Viruses do not have a passport”, declared French President Macron[1] on 12 March 2020 in a major television address to the French people. He was particularly interested in the measures taken by neighbouring Germany which had declared the French region of “Grand Est” a “risk area” the day before. This meant that people who crossed the German border from eastern France were high-risk migrants who could be subjected to restrictive measures on German soil.  Four days later, the German federal police subjected the borders with neighbouring countries, including France, to strict entry restrictions – without prior consultation with the French government, as the French side claimed.  One day later, on 17 March, the French Government imposed a curfew – „confinement” from the Latin “con fines”, i.e. “with borders” – which was tightened continuously in the following weeks. From then on, foreigners were only allowed to enter France and Germany for ‘valid reasons’.  Potential virus carriers with foreign passports were after all different and more dangerous than those of their own people.

When in the following weeks France, like almost all of Europe, went through a painful and sacrificial process of pandemic infection, the country closed itself off against people. Only goods were allowed to cross the borders unhindered, although this was no longer a matter of course, especially since the French Minister of Agriculture was concerned about the quality of local products and began to advertise the consumption of French cheese and wine from Bordeaux.[2]

Within three weeks, a pandemic had turned the idea of a Europe united in openness upside down. The most European of European leaders is rediscovering the national economic and commercial state. The two leading European states, Germany and France, are once again closing themselves off from each other through borders to an extent not seen since the post-war period and the beginning of European integration.

Renationalization and Corona

The return to the borders is the sign of our time, which is under the  auspices of Corona. There is talk of ‘renationalisation’. But this word describes only a part of the development. In Europe, at the beginning of the 21st century, within a few weeks, there is a return to concepts and positions that historically took on their theoretical and institutional form in the 19th century: from supranationality to nation; from open free trade zone to economic intervention state; from democratic parliamentarism to the primacy of the executive. All these shifts have one thing in common: they are reflected in terms of the law and are enforced by means of the law. In the legal forms of a constitutional state of the 21st century, the decline to 19th-century ideas of political order, which preceded the democratic constitutional state, is taking place.

However, according to the thesis, it is precisely the law that not only enables a recourse to the 19th century, but also forces a return to the parliamentary constitutional state of the 21st century.

Within four months since the outbreak of the Corona crisis in China, more than 130 states in the world have completely or largely closed their national borders. As a matter of principle, only the country’s own citizens, and in very limited exceptional cases foreign citizens with ‘valid reasons’ are allowed to enter the country. This also applies between the vast majority of EU Member States. The hope of the EU Commission that the closure of the EU’s external borders would reopen Europe’s internal borders has not been fulfilled. Under the pressure of the pandemic wave in mid-March, half of more than 20 Member States of the EU closed their own borders without complying with the obligations contained in the Schengen Borders Code to notify the European Commission and other Member States in good time.[3]  The free movement of persons is thus more restricted than at any time since the creation of the Schengen area, indeed of the European Community as a whole. One of the four pillars of European contract law no longer bears any weight. While goods freely cross the borders and Union citizens willing to travel are jammed at the crossings, the Union is falling back into the market community of its beginnings. “The borders are doing very well at the moment,” diagnoses Polish Nobel Prize winner Olga Tokarczuk, who lives in her home country under curfew.[4] The container nation-state is being closed because the governments of the states hope to reap quick benefits: psychologically, to give their own citizens a feeling of stability and controllability in their own space in the face of the globally borderless danger; pragmatically, to use the available closing mechanism at the old, traditional state borders.

Interventions in civil liberties

The crisis ideally exposes the basic elements of the nation state as it developed in the 19th century: A state that determines and protects its own territory and its own people; a state whose violence takes precedence over all other, external political violence and therefore inspires confidence. This retreat to familiar structures is connected with the historically common endeavour to protect, even immunise, the well-defined structure of one’s own state against strangers and foreigners, against intruders and invaders. The perception and keeping away of immigrants as potential carriers of epidemics is a historical defence pattern that unfolds its strongest effect with the development of the nation state, which brings forth technical systems of border control and a comprehensive legal framework for the selection and keeping away of ‘intruders’.[5] Since March, a wave of regulations and decrees has been passing through the European states, confirming legal border regimes and establishing new ones. The recourse to traditional institutions and – often unconscious – collective defence patterns creates confidence in a global crisis. It is legitimized by law, which sanctions unauthorized intrusion into the nation-state space.

The deeply insecure population is to be reassured and may be reassured temporarily. But to what extent do the reassuring mechanisms of closure in the nation state tempt people to self-deceive?  As the crisis lasts, it becomes clear that danger zones do not coincide with national boundaries. On the contrary, it becomes clear that within the nation-state borders, individual regions (such as Lombardy, eastern France, Bavaria and the Heinsberg district) are the most virulent crisis areas. Conversely, border regions between states are often not particularly at risk. Rather, their closure cuts off economic and cultural ties that have grown over generations and destroys political trust. This is demonstrated by the joint, coordinated reactions of politicians from eastern French departments, Saarland and North Rhine-Westphalia.[6] Growing knowledge about the spread of the virus shows that in many cases the virus was introduced less by foreigners crossing the border than by the return of the country’s own citizens.

Legal limits of border closures

There is increasing evidence that it is not the closing of national borders but other and more differentiated measures that are more effective in containing the spread of the virus.[7]  So do the gains in health care still justify the deep border police intervention in the freedom of citizens? This is where contemporary law shows the full ambivalence of its importance: it does not only provide traditional forms of state, police security from the 19th century. It also justifies and, moreover, enables effective judicial control and repeal of these measures in the service of individual freedom. The law of the European Union and the national law – which it has helped to shape – provide the means to check the nature, extent and duration of border control measures in a legally effective manner.  The legal foundations are the fundamental right of EU citizens to freedom of movement (Article 21 of the Treaty on the Functioning of the European Union), which is enshrined in the constitutional law of the European Union, and the right to general freedom of action (Article 2 of the Basic Law), which is also enjoyed by foreigners, especially EU citizens. These fundamental freedoms certainly allow restrictions for the purpose of health care and disease control. But these possibilities of restriction in turn come up against limits. In particular, the fundamental prohibition of discrimination under European law applies, namely that no stricter rules may be applied to EU foreigners than to their own nationals.[8] In addition, the principle of proportionality, which is demanded by both the European Court of Justice and the Federal Constitutional Court for all restrictions of civil liberties, must be observed. This means, for example, that complete border closures, if the virus has already spread in the country, are illegal. Also, the Federal Police cannot carry out border controls at their discretion, but must give comprehensible reasons for their decisions and observe EU law, which guarantees the free movement of goods, persons, services and capital. In addition, as the pandemic progresses, the knowledge of the virulence of the virus and thus the type and speed of its spread in social and physical space changes.  There are already plausible reasons why differentiated, flexible restrictions on freedom of movement for certain regions within the nation states that are significantly affected or threatened by the virus (e.g. in tourist areas and urban agglomerations) are more suitable for containing it than sharp restrictions at national borders that are applied across the board. These are then increasingly less necessary to maintain public health in a country. In view of this, persistent border restrictions justify less and less the resulting threats to cross-border economic existence and production chains as well as family and cultural relations. The purpose of collective health care is then no longer in a legally justifiable relationship with the restriction of individual freedom of movement. National border closures could then prove to be what they predominantly are: a historical recourse to the familiar surgical instruments of the national military hospital. However, the effective combating of this extremely dangerous, globally active virus requires other, new instruments. The spontaneous solidarity of German clinics with overburdened, seriously suffering Italian and French hospitals points the way forward. Here, for the purpose of forward-looking, cross-border cooperation and effective civil protection, the law is able to provide a framework that makes agreements and planning possible.[9]

Control of powers instead of the ‚hour of the executive‘

The crisis is the “hour of the executive”, one hears everywhere – the national executive, one might add. This is not empirically incorrect, if one looks at the legal instruments that are available to the executive power to act quickly and decisively in a crisis. And yet the sentence contains less than half the truth. In Germany, especially, there is a kind of trust resonating with political attitudes of an earlier epoch: faith in the authorities, reinforced by the longing for the charisma of a leader who undoubtedly embodies authority, whether monarchical or otherwise ‘directly’ legitimized, e.g. through acclamation or opinion polling.  The liberal constitutional state of the 21st century, on the other hand, presupposes a different kind of trust: trust in the uninterrupted mutual control of powers and thus in institutionalized mistrust. The national powers are also bound by supranational law. In a parliamentary republic, the parliament remains the democratic governing body even in a crisis. And finally, all executive action, without exception, is subject to constitutional binding and control by the courts. In a crisis, the executive and the nation draw confidence in themselves. But as organizational forms of state power and political order, they do not stand outside but within the constitutional order and are bound by its limits. At the latest when EU citizens successfully appeal to the courts against national border controls, this will prove to be the case.


References

[1] Emmanuel Macron, television address on France 2., 12/3/2020. The minister-president of North Rhine-Westphalia, Armin Laschet, takes this idea up („The virus has no nationality“) in an interview with the Frankfurter Allgemeine Zeitung (FAZ), 22/4/2020.

[2] Michaela Wiegel, Patrioten leben jetzt von Bordeaux und Camembert, in: FAZ, 2.4.2020.

[3] Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), Articles 25 and 28.

[4] Olga Tokarczuk, in: Frankfurter Allgemeine Zeitung, 31.03.2020, Nr. 77, p. 9.

[5] S. Dieter Gosewinkel, Schutz und Freiheit? StaatsbĂŒrgerschaft in Europa im 20. und 21. Jahrhundert, Berlin 2016, p. 253-262.

[6] Tobias Hans und Jean Rottner, Deutsch-französische Grenze : Wir brauchen mehr Zusammenarbeit!, in: FAZ, 14.04.2020.

[7] See the remarkable study on (lacking) efficiency of national border closures in view of the AIDS crisis in the 1980s carried out by the biomathematician Antoine Flahault (University of Geneva): Flahault, Flahault A, Valleron A-J. HIV and travel, no rationale for restrictions. The Lancet 1990;336(8724):1197-8. Flahault took up this point publicly in the Corona crisis; according to the relatively restrained effects of national border closures in the Corona crisis s. Matteo Chinazzi et al., The effect of travel restrictions on the spread of the 2019 novel coronavirus (COVID-19) outbreak, in: Science, 24 Apr 2020: Vol. 368, Issue 6489, pp. 395-400; Chad R. Wells et al., Impact of international travel and border control measures on the global spread of the novel 2019 coronavirus outbreak, in: PNAS March 31, 2020 117 (13) 7504-7509; first published March 13, 2020.

[8] Article 18 of the Treaty on the Functioning of the European Union.

[9] S. Christine Landfried, Das Virus kennt keine SchlagbÀume. Wo bleibt die EuropÀische Union in der Corona-Krise? In: Frankfurter Allgemeine Zeitung, 03.04.2020, Nr. 80, S. 12.


Dieter Gosewinkel’s article „Corona und die Renaissance nationaler Grenzen“ will be published in: WZB-Mitteilungen 168 (June 2020). A version  of this text appeared on 14 May 2020 in Der Tagesspiegel under the title “Nationale Grenzregime vor den Schranken des Rechts“.

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Dieter Gosewinkel is Head of the WZB Center for Global Constitutionalism. He is also Professor of History at Freie UniversitÀt Berlin.
Website at the WZB

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