Term and Meaning of the External Border
The external border is a central term in national and international law and primarily refers to the legally defined boundary of a sovereign territory, particularly the territory of a state or group of states, in relation to third countries or stateless areas. In the European context, the external border refers in particular to the borderline between the territory of the European Union (EU) and third countries. The precise legal structure and protection of external borders are essential for questions of sovereignty, border regimes, entry, migration, movement of goods, and security.
Legal Foundations of the External Border
International Legal Foundations
In international law, national borders are understood as the outer boundaries of state sovereignty. They are lines that separate the territory of one state from that of another or from international areas such as the high seas or Antarctica. The basis for the establishment and recognition of external borders are international treaties, international agreements, or customary law norms. The inviolability of international borders is established in the Charter of the United Nations (Art. 2 para. 4) and in numerous bi- and multilateral treaties.
National Law
National law also defines the boundaries of state territory in constitutions, simple laws, and implementing regulations. Border courses are often regulated in treaties with neighboring states and by national border laws or regulations.
External Border of the European Union
In the context of the European Union, external borders have special significance, as the abolition of internal border controls is associated with the Schengen Agreement. According to Art. 2 No. 2 of the Schengen Borders Code (Regulation (EU) 2016/399), external borders are the land, air, and sea borders of the Member States that are not simultaneously internal borders as defined in the agreement. These borders form the outer protective perimeter of the European Union against third countries.
Functions and Legal Effects of the External Border
Territorial Sovereignty and Delimitation Function
The external border primarily serves a delimitation function. It separates areas of state authority and is used to enforce the territorial sovereignty of a state or group of states. Within the borders, the respective legal system applies; border crossings are controlled and managed externally.
Control and Protection Function
At external borders, the entry and exit of persons are controlled, goods are checked and, if necessary, cleared or restricted. In the EU context, control of the external borders is a joint responsibility, which may also be coordinated by the Frontex agency.
Protective measures such as passport controls, visa requirements, security checks, customs controls, or entry restrictions due to pandemics are carried out at external borders based on national and Union law provisions.
External Border and Schengen Arrangement
With the entry into force of the Schengen Implementing Agreement, internal borders between participating states were abolished and the protection of external borders became a key task. The Schengen Borders Code regulates details such as border crossing, control procedures, minimum requirements for border crossing points, as well as the rights and obligations of border protection authorities.
Types of External Borders
Land Borders
Land borders are physical boundary lines that delimit the state territory on land from other countries. They are marked and protected by boundary stones, border fences, checkpoints, or natural features (rivers, mountains).
Sea Borders
Sea borders are determined in accordance with the rules of international maritime law (in particular the United Nations Convention on the Law of the Sea, UNCLOS). External borders in maritime areas can represent the baseline for territorial waters, exclusive economic zones, or the continental shelf area.
Air Borders
The external border of a state also includes the airspace that vertically extends above the land or sea territory. Overflights, air traffic rights, and airspace security are linked to or determined by the state’s external border.
External Border and Migration
Significance for Border Crossing
Crossing an external border is usually associated with special legal requirements. Third-country nationals are subject to specific entry requirements such as passport and visa obligations, proof of purpose of stay, potentially biometric checks, and screenings against national and international wanted persons databases.
Asylum and Refugee Law at the External Border
External borders are relevant from the perspective of international and European asylum law, as it is here that the right to apply for asylum and access to protection procedures under the Geneva Refugee Convention, the Basic Law (Art. 16a GG), and the EU Reception Directive are exercised. The rules on the ‘Dublin Procedure’ further allocate responsibility for asylum procedures to the first Member State of border entry.
External Border and Customs Law
Customs Law Significance
The external border of a customs union, such as the European Union or a free trade zone, marks the boundary of the unified customs territory. The movement of goods across the external border is subject to customs regulations: declaration, tax collection, import/export controls, and other prohibitions and restrictions.
Legal Foundations
The central rules are set out in the Union Customs Code (Regulation (EU) No. 952/2013) for the EU and in the respective national customs laws. These norms determine the procedures for customs clearance, rules for preferential treatment, violations, and possible sanctions.
Law Enforcement and Protective Measures at the External Border
Organization and Responsibilities
The protection of external borders is carried out by special authorities such as border protection, customs, police, and, where appropriate, armed forces. In the Schengen area, the European Border and Coast Guard Agency (Frontex) assumes coordinating tasks and supports Member States in crisis situations.
Measures in Threat Situations
Preemptive or temporary protective measures at external borders are legally provided for if there is a threat to public order, health, or security. This includes temporary border closures, enhanced controls, selective entry restrictions, or quarantine measures.
External Border in International Agreements
Border Courses and Border Agreements
The establishment, review, and modification of external borders regularly arise from border treaties, international law agreements, and border commissions. International organizations such as the United Nations or the International Court of Justice can be called upon in disputes over border courses.
Special Arrangements
In exceptional cases, special status areas exist (e.g., exclaves, enclaves, border municipalities, duty-free zones), which may have their own regulations on the external border and its crossing.
Significance in Jurisprudence
Decisions of National and International Courts
Courts frequently address questions regarding the legality of border measures, refusals of entry, control, and protection of the external border. In particular, the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have established fundamental decisions regarding the rule of law of border security measures and the safeguarding of human rights standards at external borders.
Literature References and Further Regulations
For further in-depth study, official texts of laws, commentaries on border and customs law, international agreements, and relevant court decisions are recommended.Important laws and legal foundations:
- Schengen Borders Code (Regulation (EU) 2016/399)
- Union Customs Code (Regulation (EU) No. 952/2013)
- United Nations Convention on the Law of the Sea (UNCLOS)
- Geneva Refugee Convention
- Charter of the United Nations
Conclusion
The external border is a complex legal concept with far-reaching significance in international law, national legal systems, and EU law. Its legal framework concerns issues of sovereignty, migration and residence policy, customs, security, and the international movement of goods and people. The legal protection and control of the external border is a fundamental component of international relations and the internal and external security of states and federations of states.
Frequently Asked Questions
Who is responsible for the surveillance and security of the external borders of the European Union?
The primary responsibility for the surveillance and security of the external borders of the European Union (EU) lies with the Member States in which the respective external border is located. This obligation arises in particular from Article 4(2) of the Schengen Borders Code (Regulation (EU) 2016/399). The legal responsibility includes conducting border controls, preventing unauthorized border crossings, and ensuring public safety and order in the border area. In addition, the European Border and Coast Guard Agency (Frontex) supports the Member States through operational deployments, technical assistance, and training. Frontex may assume coordinating roles but cannot gain exclusive control; it always acts on behalf of and under the responsibility of the respective national authorities. Cooperation between Member States and Frontex is regulated within the EU legal framework, particularly by Regulation (EU) 2019/1896.
Which legal foundations govern the conduct of border controls at the external border?
The conduct of border controls at the external borders is primarily based on the Schengen Borders Code. This establishes detailed rules for checking persons when crossing external borders, differentiating between third-country nationals and EU citizens, and specifies the conditions under which border crossings are permitted. In addition to the Borders Code, other EU regulations such as the Dublin III Regulation (Regulation (EU) No. 604/2013) and the Return Directive (Directive 2008/115/EC) apply. At the national level, the requirements are implemented in special laws such as the German Residence Act (AufenthG) and the Asylum Act (AsylG). Special rules apply to sea and airports, which are stipulated in annexes and special regulations. All controls are carried out in accordance with European and international standards, especially regarding human rights and the protection of vulnerable persons, as established by the Geneva Refugee Convention.
Under what conditions can temporary internal border controls be reintroduced, and what role does the external border play legally?
The reintroduction of internal border controls is regulated in the Schengen Borders Code (Art. 25 ff.). It is only possible in exceptional cases, for example, when there is a serious threat to public order or internal security. The external border plays a central role, as temporary internal border controls usually take place when there is suspicion that external border controls are not sufficiently effective or there is a particular influx of people across the external borders. The legal review and examination of such measures is subject to strict prerequisites and must be justified and time-limited. In addition, the EU Commission and other Member States must be informed to ensure transparency and coordination.
What are the legal consequences of unauthorized crossing of an EU external border?
Unauthorized crossing of an EU external border is considered an administrative offence or even a criminal offense in all Member States and entails legal consequences. As a rule, this leads to recording of personal data, seizure of identification documents, and, where applicable, detention with subsequent refusal of entry or deportation. In Germany, this is regulated in Section 95 of the Residence Act (AufenthG), which provides for sanctions such as imprisonment or fines. Access to the asylum procedure is also legally regulated: an application for asylum may still be made despite unauthorized entry, which then results in a separate procedure with its own legal framework. Repeated or commercial and gang-related unauthorized entries are regularly penalized more severely.
How is the treatment of persons seeking protection at the external borders legally regulated?
The handling of persons seeking protection at the external borders is determined by both EU law and international agreements such as the Geneva Refugee Convention. According to Articles 6 and 14 of the Schengen Borders Code, people seeking protection have the right to apply for asylum at all times, even though entry is otherwise considered unlawful. The specific treatment, especially the procedure for assessing the need for protection, is regulated by the Asylum Procedures Directive (2013/32/EU) and the Reception Directive (2013/33/EU). This includes provisions on information, access to legal remedies, accommodation, medical care, and protection from refoulement (non-refoulement principle). In individual cases, special humanitarian regulations or exceptions are provided, such as for unaccompanied minors or particularly vulnerable individuals.
What opportunities exist for legal review of measures at the EU external borders?
Measures at the external borders are subject to various legal controls and can be reviewed at national and European level. Affected individuals have the right to contest border protection measures, refusals, or denied entry requests or to turn to courts. At European level, complaints can be lodged with the European Court of Human Rights (ECHR) or the European Court of Justice (ECJ). National courts are obliged to interpret EU law and, in cases of doubt, to obtain a preliminary ruling from the ECJ. In addition, independent bodies such as the European Commissioner for Human Rights or specialized civil society organizations monitor compliance with the rule of law at the external borders.
What duties exist regarding data protection and storage in the control of external borders?
Border control measures at the external borders are subject to strict data protection regulations, in particular the EU General Data Protection Regulation (GDPR) as well as sector-specific special laws. When checking and collecting personal data – for example, in the context of fingerprinting (EURODAC system) or identity checks – the collection, storage, and processing of such data is permitted only in compliance with the principles of proportionality and purpose limitation. The collected data may be used, for example, only for border control, migration management, or the processing of asylum procedures. Data subjects fundamentally have the right to access, rectify, and delete their data, unless legal grounds for exclusion exist. Compliance is monitored by national and European data protection officers.
