Justice and Home Affairs in the European Union

by

Florian Trauner, Ariadna Ripoll Servent

• LAST REVIEWED: 27 February 2019
• LAST MODIFIED: 27 February 2019
• DOI: 10.1093/obo/9780195389678-0272

Introduction

Justice and home affairs (JHA) has grown into a relevant and complex field of research. It encompasses European Union (EU) policies of high political salience including asylum, migration, border control, counterterrorism, and police cooperation, as well as criminal and civil law. The processes of European integration and “communitarization” have drawn the attention of the academic community. In the 1990s, the EU’s cooperation on JHA expanded when it embarked on the objective of creating an Area of Freedom, Security, and Justice (AFSJ). It implied that the member states lifted competences that touch upon core features of the state—notably, the capacity to control the territory and to exert the use of legitimate force—to the EU level. From the outset, this was too intrusive for some member states such as the United Kingdom, which gained far-reaching “opt-out” rights. As a matter of fact, JHA encompasses a range of highly sensitive policies and has become increasingly politicized since the 2000s. Questions of security, civil liberties, and belonging are now at the forefront of the political and media agenda. There is an intense struggle over how to define identities in an increasingly diverse European society and how to distinguish “oneself” from an external “other.” Having a clear stance on these questions can determine whether governments win or lose elections. The EU’s cooperation and role in JHA are therefore interlinked with the debate over the meaning of nationhood in the interconnected world of the early 21st century. To what extent can and should European states be free to decide on issues such as immigration? JHA has also become a defining factor in the EU’s relations with the rest of the world. It is a challenge for the EU to define—and implement—immigration regimes for third-country nationals as well as to cooperate with (at times authoritarian) third countries on counterterrorism and other JHA issues. This contribution offers a summary of the main literature in the JHA field. It is important to note that there are specialized debates and discussions in some subfields of JHA (for instance, migration studies). We only touch upon these policy debates and focus on studies looking at EU JHA more generally. Our approach is to offer a description of classic literature with newer JHA research. We start by looking at books discussing the development of JHA in the EU. We then outline the main debates in JHA research (e.g., security versus liberty), followed by an analysis of the main dynamics of EU decision-making. We also reflect upon different debates in the literature on the external dimension of EU JHA policies. The contribution ends with a discussion on data sources and networking opportunities.

General Overview: Development and Communitarization

Guiraudon 2000; Geddes 2008; Niemann 2008; and Mitsilegas, et al. 2003 provide some early and influential work on JHA. Over time, the literature has become more specialized and divided between legal and political science approaches to JHA. However, in the past few years, there have been several attempts to engage again with the field as a whole. The basic objective has been to establish the extent to which the various policies enveloped in the JHA umbrella share characteristics or are inherently different. Fletcher, et al. 2016 and Peers 2016 take a preeminently legal perspective, while Ripoll Servent and Trauner 2018 and Wolff, et al. 2011 have attempted to bridge disciplinary boundaries. Importantly, there has been an increased effort to theorize the field and bring it closer to mainstream political science in Bossong and Rhinard 2016 and Trauner and Ripoll Servent 2015, thereby addressing some of the concerns raised about the overly descriptive nature of JHA research.

• Bossong, R., and M. Rhinard, eds. 2016. Theorizing internal security in the European Union. Oxford: Oxford Univ. Press.

  The book is a good starting point for researchers wishing to orient themselves on how to approach the study of JHA. It covers a broad range of theoretical approaches—some specific to this policy field, but others borrowing from mainstream political science, sociology, law, and criminology.

• Fletcher, M., E. Herlin-Karnell, and C. Matera, eds. 2016. The European Union as an Area of Freedom, Security and Justice. London: Routledge.

  This book provides a very broad overview of the core policy issues in JHA as well as its institutional structure from a predominantly legal perspective. It offers current and comprehensive discussions about the legal and normative debates prevailing in the Area of Freedom, Security, and Justice (AFSJ).

• Geddes, A. 2008. Immigration and European integration: Beyond Fortress Europe? 2d ed. Manchester, UK: Manchester Univ. Press.

  In Geddes’ view, governments might not just use the EU to escape national pressures but can also be shaped by it. EU policy-making, however, has focused on irregular migrants and asylum-seekers as unwanted forms of migration, while avoiding the coordination of admissions policies. The result is a closer connection between the “internal” and “external” governance of migration.

• Guiraudon, V. 2000. European integration and migration policy: Vertical policy-making as venue shopping. Journal of Common Market Studies 38.2: 251–271.

  DOI: 10.1111/1468-5965.00219

  Since its publication, Guiraudon’s contribution has shaped the understanding of EU migration governance. Looking at the growing integration of this field, she argued that national governments were using the EU venue to escape domestic veto actors, such as courts, parliaments, or civil society. The intergovernmental nature of the field in the 1990s allowed governments and security experts to upload more restrictive migration policies.

• Lavenex, S., and W. Wagner. 2007. Which European public order? Sources of imbalance in the European Area of Freedom, Security and Justice. European Security 16.3: 225–243.

  DOI: 10.1080/09662830701753972

  Offering an institutional perspective, the article draws parallels between the integration of the single market and the AFSJ, considering how this process favored negative integration and mutual recognition rather than the harmonization of positive rights. This market-based mode of governance was extended to the domain of public order, making it easier for national bureaucracies to upload their security concerns at the expense of liberty.

• Mitsilegas, V., J. Monar, and W. Rees. 2003. The European Union and internal security: Guardian of the people? Basingstoke, UK: Palgrave Macmillan.

  DOI: 10.1057/9780230504387

  The book is a literature classic that examines how the EU has responded to security threats of growing importance such as organized crime. Written by three experienced scholars, it provides an accurate account of the beginnings of the EU’s cooperation in JHA.

• Niemann, A. 2008. Dynamics and countervailing pressures of visa, asylum and immigration policy treaty revision: Explaining change and stagnation from the Amsterdam IGC to the IGC of 2003–04. Journal of Common Market Studies 46.3: 559–591.

  DOI: 10.1111/j.1468-5965.2008.00791.x

  Niemann adapts neo-functionalism to explain the shift from intergovernmentalism to supranationalism in JHA. This constitutional change is the result of a dialectical process that combines integrative dynamics such as functional pressures, the intervention of supranational institutions, and processes of socialization, deliberation, and learning with countervailing forces, such as domestic constraints and the reticence of actors to give up sovereignty. Integration comes about when integrative dynamics trump countervailing forces.

• Peers, S. 2016. EU Justice and Home Affairs law. 4th ed. Oxford European Union Law Library. Oxford: Oxford Univ. Press.

  This is the fourth edition of a book that has become one of the classic references in the field. Peers provides a thorough legal analysis of the main advances in policymaking and case law in JHA. Volume 1 covers immigration and asylum law, while Volume 2 focuses on criminal law and police cooperation.

• Ripoll Servent, A., and F. Trauner, eds. 2018. The Routledge Handbook of Justice and Home Affairs Research. London: Routledge.

  With thirty-nine chapters, this edited volume is probably the broadest overview of the field. It offers a view on the theoretical and policy debates in each subfield of JHA and focuses on specific geographical areas as well as the institutional dimension of the AFSJ. It is a perfect starting point for those who want to know more about the state of research and the gaps within it that still need to be filled.

• Trauner, F., and A. Ripoll Servent, eds. 2015. Policy change in the Area of Freedom, Security and Justice: How EU institutions matter. London: Routledge.

  This edited volume offers a theoretically guided analysis of the impact that institutional changes have had on specific policy fields. It considers whether the gradual communitarization of JHA and the intervention of supranational EU institutions have made any difference to policy outputs, remarking on how, generally, the area has been characterized by stability rather than change.

• Wolff, S., Goudappel, F., and J. W. De Zwaan, eds. 2011. Freedom, security and justice after Lisbon and Stockholm. The Hague: T.M.C. Asser Press.

  A good overview of the main changes introduced by the Treaty of Lisbon from a multilevel perspective; it offers an interdisciplinary perspective on the policies enacted up until that point. Because of the rapid development in this area, it has become slightly dated but might be useful to take stock of the earlier institutional and policy advances.