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2021 | OriginalPaper | Chapter

14. Extraterritoriality and Border Control

Author : Johann Wagner

Published in: Border Management in Transformation

Publisher: Springer International Publishing

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Abstract

As described in Chap. 7, Sect. 7.1, the border is understood as a territorial delineation and defined as a physical barrier where access checks prior to entering a national territory take place. The border is not an invention of modernism, but the result of a further evolution of border strips and zones of medieval empires.

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previous chapter Supranational Organisations in the Context of IBM

next chapter Border Management in Transformation

uni–protokolle.de [20].

Rebman [17].

Schneider [18] et seqq.

Jaspert [7].

Bodin and Niedhart (Eds.) [1].

Mrozek [13].

Jellinek [8].

Juraforum (2017): German nationality. German citizenship is the legal membership of a natural person in the Federal Republic of Germany. Whoever is a German is regulated by Section 116 par. 1 Basic Law. “German nationality is thus neither identical with the German nor with an ethnic concept. German citizenship covers natural persons. However, rules based on citizenship are applied both to domestic and international law in accordance with legal persons established in Germany. Nationality and citizenship are synonymous in German law. At the same time, citizenship is an individual manifestation of the state-constitutive element of a nation-state, according to which a state is recognised under international law only as long as it has a state and power over nation-states (see three-element doctrine).” Available from: https://www.juraforum.de/lexikon/deutsche-staatsangehoerigkeit (Accessed on 21st February 2017).

BVerfGE 113, 273, (294): Federal Constitutional Court—“Civil rights and duties, which are linked to the possession of nationality for each individual, are at the same time constitutive foundations of the entire community”.

Pötsch [14].

Federal Police Act of 19th October 1994 (Federal Law Gazette I, pp. 2978, 2979), which has been amended by Article 2 of the Act of 23rd February 2017 (Federal Law Gazette I p. 298).

Section 23—Identity verification and testing of scrip

(1)

The federal police to determine a person’s identity

to avert a danger,

for police control of cross-border traffic,

in the border area to a depth of thirty kilometres to prevent or eliminate unauthorised entry into the Federal territory or to prevent crime within the meaning of Section 12, Section 1 No. 1–4,

if the person is in an institution of the Federal Police (Sections 1 and 3), a plant or establishment of the federal railways (Section 3), an aviation serving installation or facility of international airport (Section 4), the official residence of a constitutional institution or a Federal Ministry (Section 5) or at a border crossing point (Section 61) or in the immediate vicinity thereof resides and facts justify the assumption that there crimes to be committed by persons located in or on these objects or the objects themselves are at immediate risk, and the determination of the identity on the basis of the risk assessment or the person related evidence is required, or

to protect private rights.

(1a)

as referred to in paragraph 1, No. 3 border area covers the coastal area from the seaward limit of up to a depth of 50 kms, in addition, only in accordance with the Regulations to Section 2 para 2 sentence 2.

(2)

In order to meet its responsibilities under Section7 of the federal police to further establish the identity of a person when they

stays in one place, justifying the assumption with respect to the facts that there

(a)

arrange, prepare or commit crimes or persons

(b)

conceal offenders

resides in a transport or supply unit or facility, a public transportation, office building or other vulnerable object or thereof in close proximity and there is reason to believe that their crimes to be committed by persons in or on those objects people or the objects themselves are in immediate danger, and to establish the identity on the basis of the risk assessment or the person related evidence is required, or

is encountered at a control point that has been set up by the Federal Police to

(a)

serious crimes or

(b)

the offenses defined in Section 27 of the Assembly Law to prevent the facts speak for the commission.

(3)

The federal police to take the necessary measures to establish the identity. You can stop the person concerned, in particular ask him about his identity and demand that he hand over identity documents for verification. When police control of cross-border traffic, the Federal Police may also require that the person concerned submits crossing the border. The person can be arrested and taken to the office when his identity or his permission to cross the border or otherwise cannot be determined only with considerable difficulty. Under the conditions of Theorem 4 to the person concerned and he is carrying things for items that are used to establish the identity, are searched.

(4)

The Federal Police may, to the extent necessary to perform their duties, require that vouchers, certificates, or other proof documents are handed out for examination if the person concerned is obliged by virtue of a legal provision to carry these documents.

(5)

The Federal Police may require that individuals identify themselves, which means the federal police (Sections 1 and 3) or the headquarters of a constitutional organ or a federal ministry (Section 5) wish to enter or are found therein. Of the persons referred to in clause 1 objects carried may be searched at the inlet control if this is necessary due to the risk assessment or the person related clues.

Bavarian Constitutional Court (2006): decision of 7th February 2006 in the context of a complaints procedure, file: Vf. 69-VI-04. “The provisions on the police search of carried items within the framework of the so-called dragnet controls (Article 22 (1) No. 1 in conjunction with Article 21 (1) (3) and Article 13 (1) (5) of the Police Act) are compatible with the Bavarian Constitution. They must be interpreted as meaning that the police are only allowed to exercise the power to intervene in the event of an increased abstract danger.” Available from: https://www.bayern.verfassungsgerichtshof.de/69-VI-04-Entscheidung.htm (Accessed on 24th February 2017).

Passport Act (PassG) of 19th April 1986 (Federal Law Gazette Part I p. 537), as last amended by Article 8 of the Act of 25th July 2013 (Federal Law Gazette Part I p. 2749).

Section 10—Prohibition on travel out of the country

(1)

The authorities responsible for policing cross-border traffic shall prohibit any German from leaving the country who has been refused a passport pursuant to Section 7 (1), or whose passport has been revoked pursuant to Section 8 or who is subject to an order pursuant to Section 6 (7) of the Identity Cards Act. The authorities may prohibit any German from leaving the country who is not carrying a valid passport or passport substitute allowing him/her to leave the country or if there are reasonable grounds to believe that he/she fulfils the conditions listed in Section 7 (1). The authorities may prohibit any German from leaving the country if there are reasonable grounds to believe that the passport’s area or length of validity should be restricted pursuant to Section 7 (2) first sentence.

(2)

In exceptional cases, the authorities responsible for policing cross-border traffic may permit a German who should be prohibited from leaving the country pursuant to (1) first sentence to leave the country, if he/she has a credible and urgent reason for having to leave the country.

(3)

The authorities may not refuse any German entry to the area of application of this Act.

Göke et al. [6].

Lange [9].

Gehriger, Urs (2013): “Churchill’s pen stroke - British-French capture plans […] first as former war minister, then as a colonial minister, Churchill makes decisions that will have globally disastrous consequences. Today’s map of the Middle East, the rise of Saddam Hussein and the Gulf War are the legacy of a conference organised by Churchill in Cairo in March 1921. Within a few years, Churchill and his co-workers separated new lands in the Middle East. The border demarcations were partly so unfortunate that they shape the conflicts up to the present day, the current civil war in Syria including […].” Available from: https://www.weltwoche.ch/ausgaben/2013-36/churchills-federstrich-die-weltwoche-ausgabe-362013.html. (Accessed on 25th February 2017).

Ratzel [16].

Law on the tasks and powers of the Bavarian State Police (PAG), as amended by the notice of 14th September 1990. GVBl 1990, p. 397 Last modified on 24.07.2001, GVBl, p. 348.

Schengen acquis—Convention implementing the Schengen Agreement of 14th June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders Official Journal L 239, 22/09/2000 pp. 0019–0062. Article 41 Hot pursuit.

Laube [10].

Zolberg [21].

Laube [10].

Zolberg, Aristide/Bast, Jürgen (Ed.) (1997): “The Archaeology of Remote Control” in: Bast, J. (2011): Right of residence and migration control, p. 39.

Laube [10].

EC Guidelines for Integrated Border Management (IBM) in the Western Balkans (2007). Security at external borders is the capacity of the external borders to constitute a barrage, or at least a reliable filter, for the EU MS against potential threats to:

(a)

the effectiveness of checks and surveillance;

(b)

compliance with Community or national regulations;

(c)

the level of internal security of the common area of freedom of movement;

(d)

law and order or the national security of the Member States, except as regards the military defence of the external borders of the European Union against aggression where one or more third countries commits it openly or claims responsibility for it. p. 7.

Note from author: Own description.

Federal Ministry of the Interior [4].

BPB [2].

Note from the author: See also the discussion in Chap. 11, Point 11.4.

Note from the author: A ‘publicly appointed entity’ is a natural or legal person who has received powers of administration to perform public functions. They exercise sovereign powers conferred by law or administrative act, but always act under their own name. ‘Publicly appointed entities’ can be regarded as authorities in the legal sense of the law (Section 1 VwVfG) and can issue separate administrative acts. Corresponding breaches of duty consequently lead to official liability.

‘Warsaw Convention’ is a multilateral treaty adhered to by the United States in 1934, which establishes a uniform set of substantive and procedural rules governing international air transportation. The ‘Warsaw Convention’ is the informal title for Convention for the unification of certain rules relating to international transportation by air, concluded at Warsaw, Poland, opened for signature on 12th October 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C.A. app. at 430 (West Supp. 1976) (adhered to by the United States 27th June, 1934). Liability of the Carrier.

German Residence Act in the version of the notice of 25th February 2008 (Federal Law Gazette I p. 162), which has been amended by Article 1 of the Law of 23rd December 2014 (Federal Law Gazette I p.2439). Section 15—Entry and Stay.

Note from the author: The term ‘gatekeeper’ (in this context, also to be understood as access control) is interpreted here as a significant influencing factor for the further decision-making process.

Act on the Tasks and Powers of the Bavarian State Police, as amended by the notice of 14th September 1990 (last modified amendment of 22nd July 2014).

Section 13—Identity verification and check of qualification certificates

(1)

The police may verify the identity of a person

to averting a danger,

if the person is in a place,

(a)

which is to be assumed on the basis of actual evidence that

(aa)

persons arrange, prepare or commit criminal offenses,

(bb)

persons stay without required residence permits, or

(cc)

hiding offenders, or

(b)

where persons work as prostitutes,

[…].

Ibid.

Note from the author: The term informational self-determination was first used in the context of a German constitutional ruling relating to personal information collected during the census in 1983. The German term is Recht auf informationelle Selbstbestimmung (RIS) Section 2 (1) of the Basic Law in connection with Section 1 (1) of the Basic Law. On that occasion, the German Federal Constitutional Court ruled that: “[…] in the context of modern data processing, the protection of the individual against unlimited collection, storage, use and disclosure of his/her personal data is encompassed by the general personal rights of the German constitution. This basic right warrants in this respect the capacity of the individual to determine in principle the disclosure and use of his/her personal data. Limitations to this informational self-determination are allowed only in case of overriding public interest”.

Strüver [19].

Laube [10].

Schengen acquis—Convention implementing the Schengen Agreement of 14th June, 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders Official Journal L 239, 22/09/2000 pp. 0019–0062.

Note from the author: Safe environment means adequate lighting and illumination of the control panel, roofing, control booths with possibilities for inquiry, communication, enhanced security through the presence of armed personnel from other authorities, e.g. Customs service.

Note from the author: It is quite possible that several hundred persons can be checked within 60 min, for example at the airport, passengers in busses, international trains.

In the case of controls in flowing traffic, the vehicle must be stopped and parked in a parking space in order to ensure an orderly control of the persons and their goods carried.

Note from the author: Entry checks are focusing on combating illegal entry and stay, smuggling, criminal offenses related to the law on residence, as well as other offenses.

Departure checks are, inter alia, focusing on international vehicle crime (theft, stolen goods and embezzlement of high-quality motor vehicles from Germany or transit), stolen goods (shipment of burglary from Germany in connection with burglaries), narcotics legislation, as well as other criminal offenses.

Laube [10].

UN CTITF–CTED Working Group (2015): Five Phases of the ‘Air Travel Cycle’.

Note from the author: The author was a member of this working group in the development and implementation of this ‘Air Travel Cycle’ model.

Note from the author: See further explanations in Points 7.2 and 14.5.

Note from the author: See further explanations under Point 5.4.

Note from the author: See further explanations under Chap. 7.

Note from the author: See further explanations in this chapter.

Note from the author: These can be more than two countries (origin and destination) when it is open-jaw flight or flights with stop over.

International Civil Aviation Organisation (2009): Security at international airports. ICAO Annex 17—Security, 8th Edition (2006), and ICAO Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, Doc. 8973/6, 200. Section 7.4, p. 6.

Federal Police Act of 19th October 1994 (Federal Law Gazette I, p. 2978, 2979), which has been amended by Article 2 of the Act of 23rd February 2017 (Federal Law Gazette I p. 298).

Note from the author: See further explanations under Point 5.4.2.

Note from the author: See further explanations under Points 3.4, 7.3 und 7.7.

European Commission [12].

Lexikon [11].

International Air Trade Association—IATA [5].

Note from the author: See further explanations under Point 14.4.

European Commission [12].

Note from the author: Border Police Support Officers Abroad, Border Police Liaison Officers and Travel Document and Visa Advisers—see further explanations under Point 11.4.

Airports as hubs of international traffic flows are then classified as problematic and risky if, due to the number of cases in the target countries, these airports can be used deliberately to leave the country without any bigger problems and then enter in the destination country and go illegal and underground. Either these persons then make asylum applications, or travel legally (no visa requirement), then enter illegally into other countries.

Wagner, Johann (2008, 2009): Comprehensive Risk Analysis of the Turkish Border Management System. 2008—“Assistance to the EC Delegation in the Field of Integrated Border Management in Turkey, Project TR07/IB/JH/04”. International Airport Istanbul-Attatürk.

U.S. Customs and Border Protection (2017): The Electronic System for Travel Authorisation (ESTA) is an automated system used to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP) and whether such travel poses any law enforcement or security risk. ESTA approval authorises a traveller to board a carrier for travel to the United States under the VWP. Private carriers must be a signatory visa waiver program carrier. ESTA is not a visa. It does not meet the legal requirements to serve in lieu of a U.S. visa when a visa is required. Travellers that possess a valid U.S. visa may travel to the United States on that visa for the purpose it was issued. Travellers travelling on valid visas are not required to apply for an ESTA. In the same way that a valid visa does not guarantee admission to the United States, an approved ESTA is not a guarantee of admission to the United States. ESTA became mandatory 12th January 2009. VWP applicants are required to complete a blue Customs declaration upon arrival in the U.S. whether or not they have an ESTA authorisation. VWP travellers are no longer required to complete the green I-94W card. Available from: https://esta.cbp.dhs.gov/esta (Accessed on 3rd March 2017).

Ibid.

Participating countries for visa-free travel (Visa Waiver Program) are Australia, Belgium, Brunei, Czech Republic, Denmark, Germany, Estonia, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Monaco, New Zealand, Netherlands, Norway, Portugal, San Marino, Sweden, Switzerland, Singapore, Slovakia, Slovenia, Spain, South Korea, and UK.

Laube [10].

European Commission (2008): Communication of 13th February, 2008 from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Preparing the next steps in border management in the European Union [COM(2008) 69 final - Not yet published in the Official Journal]. Next steps in border management in the EU. Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=URISERV:l14580&from=DE (Accessed on 3rd March 2017).

Ibid.

Specific rules for the border crossing of bona fide travellers are in a non-exhaustive list: possession of a valid biometric passport, proof of sufficient financial resources, valid health insurance, invitation letter with commitment statement, as well as no indication of the security interests of the target country.

International Air Transport Association—IATA (2015): Global Passenger Survey. Available from: https://www.iata.org/whatwedo/passenger/gps/pages/index.aspx (Accessed on 3rd March 2017).

Note from the author: The private sector is already making significant contributions to international airports, such as security check and check whether travellers meet the requirements for legal entry into the destination country. In the same way, these actors can be trained in the detection of forged travel documents and visas, or in screening and profiling. They may include the officials of the border control authorities in the case of justified initial suspicious factors.

Bodin J, Niedhart G (eds) (1976) Über den Staat, p 11

BPB (2010) Greece/Turkey: Frontex deployment and growth of irregular immigration, […] first deployment of the Rapid Border Intervention Teams (RABIT), which was established in 2007, for border security purposes. https://www.bpb.de/gesellschaft/migration/newsletter/56968/griechenland-tuerkei-frontex-einsatz-und-zuwachs-irregulaerer-einwanderung. Accessed on 28th February 2017

Federal Foreign Office (2015) The introduction of biometric features in travel documents is based on agreement within the EU and EU MS that will provide their passports with appropriate storage chips that store fingerprints and other biometric features such as photo, personal data, and other administrative data. https://www.auswaertiges-amt.de/DE/Infoservice/FAQ/Reisedokumente/08a-BiometrischerPass.html?nn=383016. Accessed on 1st March 2017

Federal Ministry of the Interior (2014) Security–International Cooperation. Strategy of the Federal Government on forward displacement to combat drug abuse, organised crime and terrorism. https://www.bmi.bund.de/DE/Themen/Sicherheit/Internationale-Zusammenarbeit/Polizeiliche-Zusammenarbeit/polizeiliche-zusammenarbeit_node.html. Accessed on 28th February 2017

International Air Transport Association—IATA (2015) Flight Data eXchange (FDX). These are data related to the passenger, baggage, relevant travel data, passport data, payment methods and others. https://www.iata.org/services/statistics/gadm/Pages/fdx.aspx. Accessed on 1st March 2017

Göke P, Wirths J, Lippuner R (2015) Konstruktion und Kontrolle. Zur Raumordnung sozialer Kontrolle, p 78

Jaspert N (2014) Grenzen und Grenzräume im Mittelalter: Forschungen, Konzepte und Begriffe Kapitel V: Grenzraum und Grenzsituation, p 58

Jellinek G (1900) Allgemeine Staatslehre. Jellinek defines the people as the totality of those citizens who have legal claims to the state power, p 409

Lange K (2014) Hundert Jahre Erster Weltkrieg– The global south between the fronts, boundaries on the rubbing board. The First World War and its consequences in the Middle East. https://www.inkota.de/material/suedlink-inkota-brief/168-hundert-jahre-erster-weltkrieg/katharina-lange/. Accessed on 25th February 2017

10.

Laube L (2013) Grenzkontrollen jenseits nationaler Territorien, p 46

11.

Lexikon J (2015) Personal data determine the identity of a person. This includes, in particular, the first name, surname, date of birth, family status, occupation, place of residence, dwelling and nationality. https://juristisches-lexikon.ra-kdk.de/eintrag/Personalien.html. Accessed on 1st March 2017

12.

European Commission (2015) Migration and Home Affairs. PNR–Passenger Name Record. https://ec.europa.eu/dgs/home-affairs/what-we-do/policies/police-cooperation/passenger-name-record/index_en.htm. Accessed on 1st March 2017

13.

Mrozek A (2013) Grenzschutz als supranationale Aufgabe, p 58

14.

Pötsch H (2009) The fundamental rights protect the freedom of each individual. They are defined in Sections 1 to 19 of the Federal German Basic Law-but also in the judgments of the Constitutional Court or in the European Convention on Human Rights. https://www.bpb.de/politik/grundfragen/deutsche-demokratie/39294/grundrechte?p=all. Accessed on 23rd February 2017

15.

Pötsch H (2009) The fundamental rights protect the freedom of each individual. They are defined in Sections 1–19 of the Federal German Basic Law-but also in the judgments of the Constitutional Court or in the European Convention on Human Rights. https://www.bpb.de/politik/grundfragen/deutsche-demokratie/39294/grundrechte?p=all. Accessed on 23rd February 2017

16.

Ratzel F (1897) Politische Geographie, oder die Geographie der Staaten, des Verkehrs und des Krieges, p 448

17.

Rebman M (2013) Staatlichkeit im Wandel. Territorial statehood [...] Complete control within a delimited territory, p 16

18.

Schneider R (1994) Lineare Grenzen–vom frühen bis zum späten Mittelalter, p 51

19.

Strüver A (2005) Stories of the „Boring Border“: The Dutch–German Borderscape in People’s Mind, p 146

20.

uni–protokolle.de (2017) ‘Modernity’ was born from the preceding social upheavals by the enlightenment and the discovery of man as an individual. It is the concept in the history of Europe, America and Australia for the upheaval in all spheres of life against earlier traditions. https://www.uni-protokolle.de/Lexikon/Moderne.html. Accessed on 21st February 2017

21.

Zolberg A (2011) Managing a world on the move, p 222

Title: Extraterritoriality and Border Control
Author: Johann Wagner
Publisher: Springer International Publishing
Book: Border Management in Transformation
Print ISBN: 978-3-030-62727-0

Electronic ISBN: 978-3-030-62728-7

Copyright Year: 2021
DOI: https://doi.org/10.1007/978-3-030-62728-7_14

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