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Rethinking EU Borders in the time of COVID-19

Published 16 April 2020 / By Elspeth Guild and Didier Bigo

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Introduction

This blog is part of the COMPAS Coronavirus and Mobility Forum.

 

What is the value of border controls on people as a means of containing a virus? One thing which the COVID-19 pandemic has made particularly clear is that the virus does not respect the borders of sovereignty. In fact, looking at any of the contemporary maps of COVID-19 hotspots, the virus seems to be utterly oblivious to state sovereignty.

However, for the medical world seeking to treat people suffering from COVID-19, state sovereign borders are extremely important. Availability of simple medical supplies like masks and hydroalcoholic gel depends on state sovereignty. There are terrible shortages of these in France but across the border in Germany there is a sufficient supply. Medical staff work in national jurisdictions and are licenced under national law. Notwithstanding tremendous efforts by the EU institutions, mutual recognition of medical diplomas across the EU is more honoured in the breach than the observance. Public hospital staff are paid by the sovereign state where they work to provide services there. While COVID-19 has no respect for state borders, medical personnel have to respect it.

Border controls are a reflex action by bureaucracies seeking to establish their claim to state sovereignty. They are a way of designating who belongs and who does not (the citizen-alien divide). But they do not identify who is well or sick.

Procedures at airports to identify who is carrying a virus are fascinating not only because of their inefficiency in the face of the scale of modern travel (what test is needed when and at what cost? Should it be applied at a border post at an airport or land border?) but also because of their obviously symbolic nature. There are not enough testing kits in the EU for hospitals to test all those who go to them with symptoms. The idea that these precious kits would be used to test all aliens turning up at a border crossing point is clearly absurd. Even if an alien turning up at a border crossing point does have the COVID-19 virus, from a public health perspective, the most important response should be to provide care including isolation. Turning the alien away and forcing him/her to move on is obviously undesirable from a public health perspective. The person will become more ill on the voyage and most likely infect other passengers.

Yet, in the face of this fairly obvious reality, one of the first COVID-19 reactions of some EU states was to close their borders with their neighbours. The first to do so on COVID-19 grounds was Austria (11/3), followed by Hungary (13/3), then Denmark, Lithuania and the Czech R (14/3), Germany and Portugal on 13/3, Poland (15/3), Estonia and Spain on 17/3, Finland on 19/3 and France merged its temporary border controls for terrorism purposes to COVID-19 in early March. But this accounts for only 12 of the 27 Member States. The majority of EU states did not consider that closing borders with their neighbours would help and retained free movement of persons without border controls.

On the other hand, the state sovereign reflex to close borders with the rest of the world (uninhibited by EU internal rules) was greater among these countries. Even though they are bound by common EU grounds, rules and procedures for the admission (or refusal) of aliens into their territory, they adopted a wide range of very different national measures regarding COVID-19 and their external borders.

The first victims of border closure approachs were refugees, seeking asylum from persecution. Many EU states failed to take into account their international obligation to provide access to their territory to everyone who needs protection from persecution or torture. UNHCR had to remind them that refusing access to the territory to refugees is and always has been illegal. Sadly, this message has yet to be heeded.

 Elspeth Guild is Professor of Law at Queen Mary University of London and Didier Bigo is Professor of International Relations at Kings College London