FECL 49 (December 1996/January 1997):
The Nordic EU member states (Finland, Sweden and Denmark) have applied for full membership, and the non-EU members (Norway and Iceland) for an associated status. All countries, including Norway and Iceland, have accepted the Convention as well as the full Schengen acquis, and all five countries signed the treaty on 19 December 1996. In all five countries parliamentary ratification debates will probably take place in 1997.
Norway and Icelands status will be ambiguous: While having agreed to all Schengen obligations, the two countries have - due to their non-EU status - neither a vote nor a veto in the Schengen Executive Committee. If disagreements occur, the two countries are free to leave Schengen, but in the light of the extensive police cooperation and integration which Schengen represents, such an option will only be theoretical. In reality, the two countries will be fully-fledged participants in terms of duties, but unlike the other states, they will not have the power to stop developments they disagree with.
With the automated database, the Schengen Information System (SIS), the supplementary SIRENE system and police exchange of information in general, Schengen involves extensive registration and surveillance activities, also of people who are not suspected of any criminal activities. Several important articles in the Convention (notably articles 93 and 46.1) open for the possibility of registration on political grounds, which is illegal in Norway. Recently, it has also been reported that the secret SIRENE handbook contains procedures (based on article 99.3 of the Convention) according to which the agencies of the member states responsible for state security (in most instances the secret police) may register in the SIS individuals presumed to be threatening the state.
Despite the great alarm and extensive media coverage brought about by the Lund Commissions findings and the secret investigation of one of its central members, Norwegian media have largely been silent about Schengen. But a substantial minority of the Storting (the Christian Democrats, the Centre Party, the Socialist Left Party, the Communist member and the Liberal member) are concerned and are expected to vote against ratification. Moreover, according to an opinion poll, there appears to be widespread resistance in the population against a Norwegian association with Schengen. This is no doubt related to opposition to the European Union as such, which is mounting in Norway as well as in other Scandinavian countries. Nonetheless, there is little public debate about Schengen.
The Government has argued that Schengen participation makes it possible to maintain the Nordic passport union together with the freedom to travel throughout the rest of Europe. Furthermore, the Government has maintained that the SIS, the supplementary SIRENE system and other measures of policing are exclusively oriented towards combating serious, organised crime. This version, has, with a few exceptions, been uncritically accepted and supported by the media. Norway has four fairly large television channels. Nonetheless, during all of 1995 and 1996 only a single full scale television debate with different views represented was organised by one of them. The Norwegian Broadcasting Television, Norways oldest and largest channel, has almost consistently reported the views of the Government. Researchers and other academics, as well as the members of the "No to the Union" organisation, have had their critical articles relegated to the insignificant status of "letters to the editor", and have often simply been denied space for larger articles. The Governments version has had a widespread "rhetorical hegemony", and has permeated through the media as something to be taken for granted and beyond doubt. It seems as if investigative and critical journalism in Norway presupposes scandals, like the aftermath of the Lund report.
Recently, however, a shift may have taken place. In early December 1996, 38 persons representing a cross-section of professional and political life delivered a petition to the presidency of the parliament, demanding that the Storting follow the Constitution when voting over ratification of the Schengen Agreement. The 38 included two earlier prime ministers and several other people active in political life, a former judge at the International Court in The Hague, and several well-known lawyers, authors and professors from a variety of relevant fields. The petition argued that Norwegian association with Schengen will imply a gradual integration into the EU, thus negating the peoples vote against membership of the EU in the referendum in 1994. Furthermore, it argued that in absence of voting rights and a veto, Norwegian Schengen association will necessarily imply a transfer of national decision-making authority and sovereignty to international organs. Such a transfer presupposes - to put it briefly - either that three quarters of the Storting agrees (§ 93 of the Constitution), or that the Storting modifies the Constitution, which requires a proposal to that effect in one Storting period and a final vote in a second, with an election in between and a 2/3 vote (§ 112).
The petition as well as a press conference held by the "No to the Union" organisation on 19 December, the day of the signing of the Schengen Agreement, were covered by a number of newspapers, as well as several television channels and the main Norwegian radio. In addition, during December the minister of Justice had to appear three times in the Storting to answer questions related to article 99.3 of the Schengen Convention and the SIRENE handbook. Further public debate is likely to follow.
The case for a decision concerning Norwegian Schengen association being taken under the procedure provided for by § 93 or 112 of the Constitution is quite strong. If the Storting decides that the question must be given such a treatment, the Schengen Agreement will most likely fall in the Storting and not be ratified. A decision not to ratify the agreement would have major consequences for Nordic Schengen participation in general. In fact, Nordic participation as a whole in Schengen may collapse, because with Norway outside Schengen, the Nordic passport union cannot be maintained.
With all of the Nordic countries outside Schengen, and the Nordic passport Union intact, Nordic citizens will - contrary to statements made by the Government - have easy access to the rest of Europe: due to their membership of the EU or (in case of Norway and Iceland) in the EES, they will simply have to show their passports when entering and leaving Schengen territory - like today.
But the issue is by no means decided. A lot is at stake for the Social Democratic minority government in Norway, which follows a "EU-friendly" policy despite the referendum of 1994, and which sees Schengen participation as a step towards EU integration. With the support of the Conservatives, they have a simple majority in the Storting. The two parties argue that Schengen represents a conventional inter-state agreement, and are expected to argue strongly for a simple majority decision.