International Political Sociology (2010) 4, 33–49

State Project Europe: The Transformation

of the European Border Regime and the
Production of Bare Life
Sonja Buckel and Jens Wissel
Frankfurt Institute of Social Research

Giorgio Agamben refers to a basic problem in the constitution of the

modern nation state: the state as a nation implies that ‘‘bare life’’
becomes the foundation of sovereignty. With the loss of their citizen-
ship, refugees lose not only all their rights, but more fundamentally the
‘‘right to have rights’’ (Arendt). This dilemma of modern statehood
does not vanish under conditions of European integration; it is rather
re-scaled. Applying a state-theoretical approach to the European border
regime, we will concentrate on the two main techniques by which the
EU produces ‘‘bare life’’: the ‘‘camp’’ and the invisible ‘‘police state.’’
It will become apparent that the institutionalization of ‘‘the right
of every human being to belong to mankind’’ is still lacking. Yet, in
contrast to Agamben, we do not trace this constellation back to the
collapse of the concept of human rights, but to hegemonies and power
relations.

The Trinity of People-Territory-State

In his 1992 essay in an issue of the French daily Libe´ration, Giorgio Agamben
speculates that in the face of the transformation of European nation-states ‘‘the
refugee might really be the only thinkable form of ‘the people’ in our times,’’
the only category in which it is justifiable to reflect on the shape and limits of
future political communities. Political philosophy would have to be redefined
with the figure of the refugee as its point of departure.
Agamben refers to a basic problem in the constitution of modern nation
states: The state as a nation implies that ancestry—in his terms ‘‘bare life’’—
becomes the foundation of sovereignty. The community created by the nation is
based on a biopolitical imagining, to use Balibar’s terms, on the illusionary yet
powerful assumption that ‘‘generations reproducing within an almost unchang-
ing territory in almost stable relationships for centuries have passed on an
unchanging essence.’’ Such a ‘‘created people’’ is considered as the basis and
origin of political power (Balibar 1992:107, 115). Following Agamben, refugees
thus represent an ‘‘alarming factor’’ because they question the congruence of
descent and nationality, of human being and citizen. Immigration to countries
in the European Union has grown to such an extent that this reversal of perspec-
tives is now ‘‘fully beyond doubt,’’ as a growing number of people are no longer
represented in the nation. The refugee turns from the ‘‘apparent marginal
figure’’ into the pivotal figure of our political present (Agamben l.c.).
Agamben’s thesis ties in with thoughts Hannah Arendt had already formulated
in 1955 when reflecting on her own experience as a refugee. She had

 2010 International Studies Association

34 Transformation of the European Border Regime

argued that human rights, which claim to ‘‘originate solely from the very fact of
personhood’’ regardless of any political status, are in fact questioned by the mass
emergence of refugees (Arendt 1955:438). For the deviation of refugees consists
in the fact that they are not officially represented by any state, since the national
way of life ties the enforceability of rights to citizenship; by doing so, it expels a
growing number of people into a no man’s land with neither right nor law:
‘‘Whomever the course of events expelled from the old trinity of people-terri-
tory-state, grounding the nation, was left home- and stateless; whoever lost the
rights guaranteed by citizenship, would remain without rights.…Whoever
was chased out of the country by their pursuer like a reject of humanity—Jews,
Trotskyists and so on—was received as a reject of humanity everywhere else’’
(Arendt 1955:402 et seq.).
The moment individuals left the state to which they were subservient by birth
and national affiliation, the moment they were unable to claim their civil rights
outside of their territory, they became uncertain about their fundamental human
rights. So the very instant they were referred back to the rock bottom of rights
which they had ostensibly gained through birth, it became apparent to them as
the social construct of a nation-state, which rules the population as a people on
the territory it has constituted. The borders of the nation-state that were sup-
posed to mark nothing but the jurisdiction of the democratic constitution
according to democratic republicanism, and were supposed to be traversable for
everyone willing to accept the applicable law (Maus 2002:231), turned out to be
a technique for the deprivation of rights. Once expelled from the trinity, the ref-
ugee’s ‘‘nothing-but-personhood’’ catapulted them into some kind of a ‘‘state of
nature,’’ in which they lost any relation to the world built by human beings. As
soon as all other social and political qualities were lost, no rights whatsoever
arose from the remaining mere personhood. The world showed no high regard
for the abstract bareness of personhood (Arendt 1955:449).
The spaces in which no rights can be asserted anymore thus stretched and
assumed the shape of ex-territorial zones of an ‘‘invisible police state,’’ in which
the sphere of police control expanded immensely and detention centers would
become the only practical substitute for the lack of a national territory: ‘‘They
are the only fatherland the world has to offer to the fatherland-less’’ (Arendt
1955:431). As far as its inhabitants are stripped of any legal status and entirely
reduced to bare life, Agamben concludes in apparent parallel to Arendt
(Agamben 2002:180, 183) that ‘‘the camp is the most absolute bio-political space
that has ever been realized, in which power is confronted only by pure life with-
out any means of mediation’’; it is the ‘‘materialization of the state of emer-
gency.’’ With the loss of their citizenship, refugees do not only lose all of their
rights, but more fundamentally, the ‘‘right to have rights’’ (Arendt 1955:446).
By taking the European Union as an example, in the following, we would like
to show that this historical analysis of European migration policy is still highly
relevant, although the transnationalization of state and law has fundamentally
transformed the international arrangement of states compared with Arendt’s
times. As a result, we can perceive a new European state project currently reproduc-
ing the loss of ‘‘the right to have rights’’ in extended form. What we want
to introduce to the discourse of critical migration studies (Guild 2009:11) is a
critical state theoretical approach. In our view, this is necessary as we witness a
period of grave institutional displacements in the way political domination is exe-
cuted, while we are at the same time confronted with a certain state-theoretical
dilemma: On the one hand, the focus of mainstream migration studies is state-
centric (ibid. 22); on the other hand, critical approaches abandon this statist
approach to the benefit of a perspective of migratory movements—a move that
is definitely a sign of progress in critical thought. However, this constellation
leads to a dichotomous separation of both perspectives, and thus a failure to
 Sonja Buckel and Jens Wissel 35

challenge traditional notions of the state used in mainstream migration studies

and international relations alike. This traditional understanding assumes the
state as a taken-for-granted entity mostly represented as ‘‘sovereignty,’’ under-
stood as a legal rather than as a sociological category. To overcome this
dilemma, we conceive the state following the materialist tradition as a social rela-
tion, or to cite Poulantzas (2001:154) as ‘‘material condensation of social rela-
tions of forces.’’ By arguing in this way, we apply from the outset a political
sociological approach which seeks to transcend the dualism of state and society.
The practices of migratory movements are therefore an integral part of the social
relations crystallizing in the state.
What follows from this is that the state can no longer be understood as a mono-
lithic entity, but as an ensemble of heterogeneous competing apparatuses stitched
together only by a fragile state project. Accordingly, the state is neither simply an
instrument of powerful actors in control of national borders nor a problem solver
in the service of common welfare, as it is seen in the tradition of German idealism.
The contradictions between the demand for increased global mobility and the
intention to wall off societies that we can observe in many states is conceptualized
as the ‘‘liberal paradox’’ (Hollifield 2003:35 et seq.). As for our state-theoretical
approach, we take this apparent paradox as a structural feature of modern state-
hood and its institutions: The failure of migration control policy is per se not a
loss of function; rather, such contradictions are always inherent in capitalist socie-
ties. The conflicting actions of different state apparatuses are the result of varying
social contradictions manifest in competing and heterogeneous apparatuses. In
short, the state exists not outside of society and its contradictions. In some respect,
this becomes even clearer with regard to the process of European integration. In
developing this analysis, we demonstrate that in the context of Europeanization a
process of rescaling the state takes place in which a new control regime of global
mobility evolves producing specific zones of stratified rights (see Bach 2008:153).
Our investigation focuses on the zone of illegalization: We concentrate on the two
techniques that produce the ‘‘bare life’’ highlighted by Arendt: the ‘‘camp’’ and
the invisible ‘‘police state.’’ It will become clear that the institutionalizing of the
‘‘the right of every human being to belong to mankind’’ (Arendt 1955:446 et
seq.), and that means: to an international regime, in which ‘‘the right to have
rights’’ is detached from citizenship (Benhabib 2004:68), is still lacking. In con-
trast to Giorgio Agamben, we do not trace this constellation back to the collapse
of the concept of human rights, but to hegemonies and power relations.

Rescaling the State

Since the 1970s, a deep transformation affecting the relation between state,
people, and nation, and hence the constitution of modern statehood, can
be observed within international political economy. The state does not meet
these conflictual and therefore dynamic social relations as a monolithic block;
moreover, it contains these relations themselves as their material condensation
and is at the same time also a part of the social relations of forces (Poulantzas
2001:154 et seq.). Already under Fordism, dualistic conceptions of the nation
state and international economy were hardly convincing, since international
forces had always been present within the state (Gramsci 1991 et seq., 496 et
seq.; Poulantzas 2001). Such concepts became entirely implausible with the rise
of inter- and transnationalization in the 1990s.
The starting point of this transformation was the crisis of Fordism and the rev-
ocation of class compromise in the Fordist society in the mid 1970s (Lipietz
1987:29 et seq.; Brenner 2002:67, 76). The political reaction to the crisis was a
policy of deregulation, which benefited the inter- and transnationalization of
production and financial markets. The formation of transnational networks of
36 Transformation of the European Border Regime

production and reproduction led to the fact that former models of the interna-
tional division of labor, such as the center-periphery relation, are superceded by
a much more complex model of the flexible utilization of spatial differences. In
this process, high-tech production units develop in the periphery, while at the
same time, in the center, low-wage sectors emerge in neo-Taylorist production
units or the service sector.
The fundamental restructuring of international political economy brought
about an alteration of the migration regime. In this context, so-called highly
qualified workers are increasingly recruited by metropolitan states. Such transfor-
mations are imposed against sometimes considerable resistance. At the same
time, the demand for cheap labor creates job markets for the illegalized.
‘‘Managing migration’’ becomes the key neoliberal term of migration policy.
The increase in migration is one of the main features of transnationalization
(Castles 2005:16). It is not so much its quantitative increase that represents sig-
nificant change; because of population growth, the percentage of migrants in
the world population has hardly altered since the mid-1960s (Faist 2007:366).
Rather, it is the global dimension that is relevant, and it is hardly an exaggera-
tion to speak of an ‘‘age of migration’’: ‘‘International migration is part of a
transnational revolution that is reshaping societies and politics around the
globe’’ (Castles and Miller 2003:7). These developments are not only a result of
globalization, but also one of its drivers. Encompassed by the term ‘‘transna-
tional migration,’’ this circumstance has been discussed since the 1990s. Unlike
former generations, the current migratory movement is characterized by net-
works, practices and ways of life that connect country of origin and country of
destination. They cross national borders and establish social relationships that
link both societies by forming a transnational way of life (Bach, Glick-Schiller,
and Szanton-Blanc 1997). Even the global crisis, although it reshapes the relation
of forces, does not dramatically change this new transnational constellation.
For Western Europe, this is a fairly new development which started with the
crisis of Fordism. In the meantime, the percentage of migrants in Europe, an
estimated 22 million people, is not unlike that of classic immigration countries,
such as the United States, Australia or Canada (Massey, Arango, Hugo, Kouaochi,
Pellegrino, and Edward Taylor 2005:108 et seq.). Approximately 4% of these
migrants are without valid residence status and therefore illegalized (Schwenken
2006:13). Countless other ‘‘transit migrants’’ have to remain at borders on their
way to Europe for years. They either gain the money for an illegalized crossing of
the border in the shadow economy of peripheral border areas or stay in one of the
countless camps along the Mediterranean coastline (Hess and Karakayali 2006:39).

State and Territory: The Formation of a Post-Fordist State Apparatus Ensemble

The outlined shift in societal power relations led to the start of internationaliza-
tion from within the Fordist welfare state in the 1970s (Poulantzas 2001; Wissel
2007). As a result of the inner logic of the political and the juridical, transformed
power constellations are not directly and immediately conveyed, but ‘‘adapt
[themselves] exactly to the materiality of the various apparatuses,’’ that means
they crystallize ‘‘in the state in a refracted form that varies according to the appara-
tus’’ (Poulantzas 2000:130–31): The inter- and transnationalization of the state
leads to a dramatic state-competitive transformation, in which the various state
apparatuses are rearranged (Hirsch 1995). The increasing weight of apparatuses
that function as a base of internationalized capital groups, such as central banks
and Ministries of Finance, coincides with a devaluing of state apparatuses that
embody the make-up of the Fordist compromise, like Departments of Labor or
Ministries of Social Affairs. This reconfiguration does not only concern nation
states. The process of rescaling the state (Swyngedouw 1997:155) can also be
 Sonja Buckel and Jens Wissel 37

discerned at the transnational, regional (particularly European) and local level. In

the literature on state theory, this process is referred to as the spliting or agglomer-
ation of new institutions and actors within the state (Leibfried and Zürn 2006:41
et seq.), or, on the contrary, as the integration of the state into transnational politi-
cal regimes (Beck and Grande 2004:56). In difference to these approaches, we see
the state not as a substantial unity, but as an amalgamation of heterogeneous and
sometimes competing state apparatuses, whose coherence has to be organized by a
hegemonic project. This reconfiguration can therefore be interpreted as the
annulment of the Fordist state project manifest in the national state: The modified
power relations have produced a new European post-Fordist blend of state appara-
tuses, which crisscross various social spaces (see Jessop 2004). It includes the vari-
ous national education, economy and security apparatuses as well as supranational
institutions, such as the European Court of Justice, the Central Bank, or the Bor-
der Control Agency, but possibly also international institutions, like the European
Court of Human Rights, or the International Organization for Migration, in so far
as they participate in the governance of the European people. This heterogeneous
ensemble is stitched together by a number of European political and economic
projects converging in a European state project.
The territorial entrenchment of political governance has been considered to
be the pivotal factor of modern statehood since Max Weber (1980:821). States
monopolize the procedures for the organization of territory: ‘‘The capitalist state
marks out the frontiers when it constitutes what is within (the people-nation) by
homogenizing the before and after of the content of this enclosure’’ (Poulantzas
2000:114). Thus, a social space is established within which rules and control
mechanisms are effective. In other words, territoriality and political organization
are interconnected in a particular way (Bommes 1999:102). The new architecture
of the European state project is therefore accompanied by transformations in
the form of territorialization. The European Union crossed the threshold by
communalizing migration control since the Amsterdam Treaty of 1999: The EU
has established a common internal and external border control law (Guild
2009:181). Since the foundation of the EEC, European politics has involved the
creation of ‘‘economic’’ spaces, of which the most important was the EC domes-
tic market. Even if these were already initial indications of territoriality, the EU
did not become territorial until it adopted migration control policies (Walters
and Henrik Haahr 2005:107).
With the expanded state apparatus ensemble, a comprehensive super-national
control network emerged around dispersed and technology-based borders cen-
tered on the need to ‘‘manage’’ populations through the use of new technolo-
gies, like biometrics and Europe-wide databases (Carrera 2007:5). It has thereby
come to exert an homogenizing effect by constituting a common ‘‘externality’’:
‘‘one of its most important objectives is to send a clear message to ‘the outside’
about a common European security identity substantiated in an Area of Freedom,
Security and Justices’’ (ibid.). Its various apparatuses try to govern mobility, to
direct the dynamic of migratory movement in a way that ‘‘turns non-governable
streams into governable, mobile subjects’’ (Panagiotidis and Tsianos 2006:57).
Migratory movements often elude attempts to control them, but the effect of such
attempts is the multiplication of governmental control apparatuses and a restruc-
turing of the relations between knowledge and power on a European scale.

Government and Population: About Zones of Stratified Rights

The population living in the domain constituted and controlled by the state
became the target of emerging governmental power since the eighteenth
century. Not a territory but its population is governed, forming the foundation
for the wealth of the respective state (Foucault 2004:183). Labor-power as ‘‘the
38 Transformation of the European Border Regime

aggregate of those mental and physical capabilities existing in a human being,

which she exercises whenever she produces a use-value of any description’’
(Marx 1988:181), is the pivotal premise of the capitalist mode of production and
has to be (re)produced as such. This reproduction is what Foucault calls
‘‘bio-power’’ (Virno 2005:113 et seq.): the ‘‘management of life.’’
Borders contribute to the production of the population as a known and
governable unit (Walters 2002:21 et seq.): By dint of the judicial category of
‘‘citizenship,’’ a specific population is permanently, directly, and exclusively
incorporated into the state. With this ‘‘the particular inclusion universalism sig-
nificant for the political system’’ is justified, since it includes the population of a
territory and excludes everyone else as belonging to other states (Bommes
1999:103). The border regime then produces a bio-political schism; an illegiti-
mate partition (Terkessidis 2004:8), fragmentation is brought into the popula-
tion, which can only be based upon racism in this age of ‘‘the administration of
life.’’ This schism provides legitimacy ‘‘to expose certain populations to danger
of death, to increase the risk of death, political death, expulsion, deportation,
etc. for certain people’’ (Foucault 1999:297 et seq.). It runs between the global
South and the North as the post-colonial definition of the European as opposed
to the non-European (Römhild 2006:214). The inside ⁄ outside relation is pro-
duced as a regulative of the North–South-relation. The main effect of migration
control policy is therefore not covered by the foreclosure of the term ‘‘fortress
Europe.’’ The productivity of the migration regime is to be found much more in
the ‘‘flexible detachment of labor from its place of production, recourses and
rights. Rather than foreclosure, this perspective identifies the deprivation of
rights as the main operating mode of the migration regime’’ (Karakayali and
Tsianos 2005:49). The population contained in the EU territory is assembled in
a stratified manner, according to the rights outlined in the EU border regime.
The legal categories range from strong rights to complete exclusion from the
legal form. Citizens of an EU Member State have the strongest position. Since
1992, they additionally have Union citizenship with its entailed civil, political,
and social rights: freedom of movement (Art. 17 and 18 EC), European basic
rights (Art. 6 II EU), protection against discrimination (Art. 12 et seq., 141 EC),
rights to monitor and participate in politics (Art. 19 and 21 EC), as well as the
access to social security systems. Union citizenship is the only instance of a post-
and transnational membership that is combined with the rights of citizenship.
Parallel to the expansion of the European state apparatuses, the rights of Union
citizens have increased to a hitherto unknown extent, even showing a degree of
detachment from territory, nation, people, and the rights they possess as citizens
of a nation-state.
A rupture emerges between this metropolitan and legally protected way of life
and the approximately 22 million so-called ‘‘third-country nationals.’’ Thus, the
EU border divides the world’s population into two main groups (Guild
2009:183). The targets of the migration control policy are transnational migrants
galvanized by global restructuring processes in the peripheral countries. Only a
small number of them manage to gain a precarious residence status as refugee
or ‘‘legal’’ migrant (labor migration, residence permit, family reunion, visa, tem-
porary residence permit for study or research purposes). Because of this rupture
running between the global North and the South, Balibar (2003) (89 et seq.
162) thinks it appropriate to speak of a ‘‘global apartheid regime’’ that assumes
a specific shape in Europe. Beyond the metropolitan zone of rights, the death
zone begins, the land of the barbarians: ‘‘It is as if a global, continuous interwo-
ven, civilizing world produced barbarians from its self,’’ as Arendt already put it
(Arendt 1955:452). Right next to the death zones with its bio-political camps, the
war zones and the large zones of extreme poverty, there are the ‘‘life zones’’
with parliamentary democracy and human rights. Within the ‘‘life zones,’’ there
 Sonja Buckel and Jens Wissel 39

exists an increasing number of scattered enclaves of illegalized disenfranchised,

and all zones are moreover stratified according to gender, ethnic group, and
class. Even Eastern European Union citizens do not have the same rights—for
instance, of movement—as the Western Europeans. The family members of
Union citizens coming from third countries have a precarious dependence on
the status of the particular Union citizen. In the labor migrant zone, current
plans explicitly target ‘‘high skilled workers.’’1 And across all zones, the rights
and living conditions of women are lower than those of men. Thus, the bio-
political schism leads to a ‘‘disaggregation of citizenship,’’ to quote Seyla
Benhabib (2004:154), or to zones of ‘‘differentiated citizenship,’’ as Aihwa Ong
calls them (2005:301). These zones are subject to variable regulative forms and
techniques for ruling; most of all, however, they generate stratified rights.

The Zone of Illegalization: The Limits of Democracy and Law

Attempts to control migratory movements also fail within the European state pro-
ject. Yet, what can be controlled is citizenship and legal presence (Anderson
2001:8). Borders therefore mark not only the boundaries of a territory, but also
the boundaries of democracy and law (Bigo, Carrera, Guild, and Walker
2008:287), as illustrated by Hannah Arendt. They represent the practical nega-
tion of a world society. On the one hand, human rights are universal rights, that
is, they apply to everyone everywhere. Even people without citizenship can claim
them for themselves; there is not a single spot on earth that is not protected by
them. The number and scope of human rights conventions and institutions have
increased rapidly since Arendt’s work. However, the modern legal form is an
exclusively normative, counterfactual form, whose specific shape and actual
enforcement are constantly contested. Along with these legal forms, borders pro-
duce a special technique in the creation of relations not in alignment with the
law. Whoever crosses a border without legal recognition will be excluded from
the legal form because their residence is illegalized and thereby the formation of
a sustainable subject—which remains bound to enforceable legal statuses—is
made impossible (Hess 2005:164). Furthermore, the establishment of ex-territo-
rial spaces—be they camps, transit zones or the Mediterranean Sea—produces
sites in which the balance of power imbuing legal norms becomes invalid. Thus,
the border still produces ‘‘the outside’’ of the political and legal society. This is
why we now focus on the European border with an emphasis on ‘‘the outside’’
of law and democracy in the zone of illegalization on the basis of two exemplary
developments: today’s ex-territorial camps and the current ‘‘invisible police
state,’’ in Arendt’s sense, in the shape of supra-national border control.

Deterritorialization
The European border regime has developed into a complex web of linked up bio-
political databases mapping the population, refugee return agreements with a
number of African and Asian states,2 and common border controls based on
Art. 62(2) EC. The borders of the Mediterranean Sea have tuned out to be of a
particular volatility. When the German minister of the Interior was asked whether
Germany was defended against illegal migrants in Lampedusa and Lanzarote, he
responded: ‘‘Of course. In a Europe without internal border controls, the borders
of every Member State are monitored at the common external border.’’3 One

1
See Blue Card Directive from 25 April 2009: 2009 ⁄ 50 ⁄ EC.
2
There are, for example, agreements with Albania, Hong Kong, Macao, Sri Lanka and Russia. Negotiations are
underway with the Ukraine, China, Morocco, Algeria, Pakistan, Turkey and Macedonia (Peers 2006:322).
3
Frankfurter Allgemeine Zeitung, 29 March 2007, p. 2.
40 Transformation of the European Border Regime

component of this is a widely branching system of camps. It includes camps in war

zones financed indirectly by the EU through international organizations, which
are meant to make refugee movements controllable ‘‘as early as possible on a
large scale’’ (Marischka 2006:302) as well as exterritorial camps in and around
Europe. These camps are widely removed from public view. It was, for example,
not possible for the UNHCR to visit the camp in Lampedusa, and before the arri-
val of an EU Parliament delegation the inmates were flown out (306). These
camps, which can also be found in European towns under the name of detention
centers, form an inner circle of including exclusion. A second circle is established
in neighboring countries, which in line with the European Neighborhood Policy,
EU Membership negotiations, bilateral agreements and economic aid, are also
pushed into building camps and sealing their borders, turning them into a buffer
zone (ibid.).
In Libya, which has not signed the Geneva Refugee Convention, for example,
there are at least twenty secret ‘‘detention centers.’’ Three of these were estab-
lished by Italy. In these camps, up to 70 people live on 48 square meters with
only one toilet. Several studies report systematic rape by guards. The inmates are
beaten at every opportunity, often with fatal consequences. Time and again
inmates have been deported to the Libyan border in the desert; hundreds of
migrants have died in this process. The report of the European Border Control
Agency, ‘‘Frontex,’’ to the European Commission described these practices, but
without complaining about the conditions (cf. Fortress Europe 2007:4 et seq.;
Human Rights Watch 2009). Significantly, the camps are under ‘‘indirect control
of EU security authorities, but not under EU Law’’ (Marischka 2006:305). What
we witness here is, to a certain degree, the extension of the scope of state and
para-state control apparatuses but without legal protection or political control.
As migrants tried to cross the border of the Spanish enclaves Ceuta and Melilla,
for example, they were fired upon ‘‘and the military was sent to the external
border to defend the border against civilians’’ (ibid. 307).
The ‘‘life zones’’ mark the boundary of law and democracy, whereby the ille-
galization of a large part of the population as well as the increasing extension of
repressive state apparatuses, render democracy and law precarious, even within
the ‘‘life zones.’’ However, the boundary of law and democracy is also defended
at the borders. While there is nothing more cynical than the ‘‘welcome centers,’’
they also show that nothing much has changed: Arendt had already criticized
the then euphemistic use of language by the ILO when speaking about ‘‘transi-
tional centers’’ (Arendt 1955:431 fn.32). Measures taken at the borders still only
serve to ‘‘protect’’ the law against those who rely on it most urgently. In the
course of these efforts, forms of de-territorialized territoriality are created. In
airport camps, in the ‘‘departure centers’’ and at least in proposals concerning
Ceuta and Melilla, a development can be observed that could be described as an
attempt to enforce territorialization on a de-territorial population: The outlaws
become immobilized outside of law and democracy. This is not meant to orga-
nize their admittance to the life zone, but to prevent them from coming within
reach of the rule of law. The term popular sovereignty becomes in this process
more and more meaningless, and here we also agree with Arendt, when she
points out that the exclusion of the illegalized does not only threaten the
excluded, but also de-democratizes the exclusive democracy.

Supranational Border Control

Those migrants who cannot afford to travel overland or the documents necessary
for a flight may decide to take a maritime route by way of the Canary Islands,
the Strait of Gibraltar, Sicily, Malta, Cypress or the Aegean. The European Mem-
ber States as well as the EU responded with a ‘‘quasi-military border control
 Sonja Buckel and Jens Wissel 41

approach’’ (Spijkerboer 2007): The Mediterranean Sea has become a military

(high) security zone. Various border patrol and military units from different
nation states but also from NATO in its war against international terrorism (as
with operation ‘‘active endeavour,’’ a sub-operation of ‘‘enduring freedom’’)
patrol the waterways between the African Continent and Europe from sea or air.
An investigation carried out for the European Parliament concluded that the
number of people who have died since the implementation of these controls
has, with 8,855 fatalities, increased significantly (ibid. 136). Moreover, the means
of control have not reduced the number of illegalized migrants, merely made
them choose other more dangerous routes (Bigo et al. 2008:298).
Since 2005, border control has reached a new stage with the attempt to put
controls under European sovereignty through the European border control
agency ‘‘Frontex.’’ Its authority includes the EU Member States, Switzerland and
the countries associated to the Schengen agreement. It was based on Regulation
(EC) 2007 ⁄ 2004. Its duties include the protection of external borders and the
support of Member States in the education of their border police as well as risk
analyses. The agency commenced operations on October 3, 2005. Since the fail-
ure of the initial attempt to install a European border guard pursued by some
Member States and the Commission (Neal 2009:340), Frontex now functions as
a vertical loose coupling without compromising the sovereignty of Member
States. It works within a weakly formalized environment, in which administrative
elites pursue their own interests and policy goals without having to fear interven-
tion from parliaments and courts. This kind of ‘‘experimentalist governance’’
contributes to policy outcomes and the building of trust in highly contested
areas, ‘‘but it may at the same time challenge established patterns of accountabil-
ity’’ (Pollak and Slominski 2009:916).
What is striking is that Frontex has been founded as a further addition to a
vast array of European agencies. These were not envisaged by the EU founding
treaties but have been created by secondary legislation and are thus autonomous
administrative units with a very vague legal basis (Fischer-Lescano and Tohidipur
2007:1231). While the agencies of the 1970s and 1980s had no sovereign deci-
sion-making powers, this has changed in the 1990s. ‘‘All in all the spin-off of
agencies leads to a spin-off of administrative apparatuses, and consequently
means an increasing independence of the agencies from the political influence
of Council and Commission—and parliamentary contribution.... The new agen-
cies, at least the agencies concerning internal security and border patrol, have
grown out of their mere technical-regulatory garment’’ (ibid. 1234).
For Frontex, this implies that the agency is not only supposed to work with
Europol, it also commissions extensive feasibility studies for ‘‘more effective
border patrol,’’ and carries out operations itself. Since 2006, several ‘‘joint opera-
tions (JO)’’ have taken place along the African coast in the Mediterranean: JO
HERA (315 days in 2008) around Spain, JO Nautilus (332 days in 2008) around
Italy and Malta, and JO Poseidon (217 days in 2008) in the Aegean Sea—and
many more operations on land and at airports (FRONTEX 2009:35).
Meanwhile a 2007 amendment4 allows the formation of so-called ‘‘Rapid
Border Intervention Teams (RABIT).’’ They involve border police forces from
EU Member States, which are available for common border patrol operations on
the request of one state in urgent and exceptional circumstances. While previous
operations under Art. 8 of the Regulation were mere support operations, in
which Frontex and the national support teams co-ordinated by Frontex did not
have executive competences of their own, executive authority is now transferred
to them by the respective Member States, and the Regulation lends intervention

4
EC Regulation 863 ⁄ 2007, OJ EU L 199 ⁄ 30 11 July 2007.
42 Transformation of the European Border Regime

powers to all forces deployed in joint Frontex operations (Fischer-Lescano, Löhr,

and Tohidipur 2009:258).
The questionable legal foundation for this border control unit, the unclear
competence and status structure of the officers operating at the external bor-
ders, the opaque and limited possibility to claim legal protection as well as the
tendency to ex-territorialize means of control in order to get rid of human rights
obligations lead to a ‘‘structural constitutional and democratic shortfall’’
(Fischer-Lescano and Tohidipur 2007:1273). Frontex highlights the conse-
quences of population regulation within the extended European state apparatus.
The multiplication of governmental control apparatuses and the reorganization
of the knowledge-power relation is about to take place on a European scale. The
Europe-wide network of former national control apparatuses and the formation
of new apparatuses do not only serve to extensively monitor the external
borders. In fact, the expansion of interagency information exchange and the
establishment of new information-gathering programs or agencies (SIS, SIS II,
SIRENE, VIS, EURODAC, ARGO) continuously enlarge the knowledge about the
population within Europe, a characteristic of the development of nation-states
since the eighteenth century (in terms of demographical and statistical data
collection). One result of these processes are specific technologies of power,
which lead to a further detachment of also the included population from deci-
sion centers; this in turn tends to result in an undermining of the control of the
apparatuses (Poulantzas 2000:60; for Europe see Schwenken 2006:137). A perma-
nent shift of power and authority in the extended ensemble of state apparatuses
can be observed here. Decision-making processes become much more opaque,
compared to the rather well-defined Fordist nation-state. So-called forum- and
scale-shifting lead initiatives to control the controllers or to increase involvement
in political decision making to go nowhere (cf. Wissel 2007:161 et seq.).
The official tasks of Joint Operations, national officials as well as Frontex are
subject to a narrow network of international and European legal standards, in
particular the principle of ‘‘non-refoulement’’ in the Geneva Refugee Conven-
tion (Art. 33 I), the International Pact on Civil and Political Rights (Art. 7 I),
the Anti-Torture Convention as well as the European Human Rights Convention
(Art. 3) regarding the interpretation of the European Court of Human Rights.
The deportation of refugees to areas in which they are persecuted, exposed to
torture, inhuman treatment or other serious human right violations is prohib-
ited. Moreover, this implies access to the legal proceedings, reviewing the refu-
gee status on a case-by-case basis.
However, deportations without individual verification have become the norm.
A de facto legal no man’s land has to be invented in order to make this possible:
it is argued by national officials that beyond the twelve mile zone, at which the
national territory ends according to the Sea Rights Agreement of the United
Nations, the deportation prohibition does not apply (BMI 2005:2). The high seas
are constructed as an ‘‘exterritorial area.’’ By using this argument, Italy and
Libya jointly patrol the Mediterranean Sea since 2009; they intercept boat
migrants on their way to Europe on the high seas and return them to Libya
(UNHCR 2009). The number of boat migrants to Sicily (including Lampedusa)
and Sardinia fell by 55% in the first 6 months of 2009, compared to the same
period of the previous year (Human Rights Watch 2009:24). After nearly a dec-
ade of negotiations, both countries signed the so-called Friendship Pact,5 which
grants Libya 5 billion US dollars in compensation for abuses committed during
Italy’s colonial rule. It is only with the existence of this pact that Italy succeeded
in the externalization of migration policy. Previous efforts failed exactly because

5
‘‘The Treaty of Friendship, Partnership and Cooperation between the Italian Republic and Great Socialist
People’s Libyan Arab Jamahiriya,’’ 30 August 2008.
 Sonja Buckel and Jens Wissel 43

of Libya’s refusal to cooperate. As a result, the Frontex joint operation ‘‘Nauti-

lus’’ failed in 2008, as it led to an increase in boat migration, since Frontex was
not able to turn them back (COWI 2009:6). The same scenario took place in
Frontex operation ‘‘HERA’’: only when Spain concluded a bilateral agreement
with Mauritania and Senegal, this operation was ‘‘successful’’ in preventing boat
migrants from reaching the Canary Islands (Carrera 2007:21). After the main
routes become more dangerous now, migrants choose new routes to Andalusia,
the Spanish east coast and Greece.
This example reveals the relation between the normative order and struggles
about its concrete institutionalization. Social movements and civil human rights
organizations, such as Human Rights Watch or the recently founded European
Centre of Constitutional and Human Rights (ECCHR), strive for the universal
validity of human rights through legal action and legal monitoring. They can call
upon research on human rights and international organizations, such as the
UNHCR. According to these, Member States are bound by Art. 33 1 GRC even
outside their territory. The crucial factor must not be the whereabouts of the
actors, but their general situation. Is the person concerned under the control of
a state body or affected by their action (Fischer-Lescano and Löhr 2007:8)?
Thus, there can be no such thing as a place outside the country of origin, where
the refoulement ban is void, neither on European territory, beyond the national
border nor in the transit zone. On board of a border patrol, the jurisdiction of
the flagship is also effective, since the state has sovereignty under whose flag the
ship sails (ibid. 14). Anything else would come down to unleash state power
from any legal control by simply using means of transport.
The ECCHR draws the conclusion that the non-refoulement obligations pro-
hibit European border officials from turning back, escorting back, preventing
the continuation of a journey, towing back, or transferring vessels to non-EU
coastal regions, in case that any person is in potential need of protection as long
as the administrative and judicial review of the asylum application has not been
completed on European territory. Since this is not the case in the African transit
states, the individuals concerned must be transferred to the territory of an EU
Member State (ibid.).
Not only national control apparatuses were extended for the combat and ille-
galization of migrants, but new European institutions emerged as well. These
new apparatuses form outside of legal and democratic control. The European
Parliament is, for instance, completely left out of the ex ante and ex post process
of Frontex’ joint operations (Carrera 2007:14). The latter is exemplary for vari-
ous reasons: First of all, it is a new state apparatus that defies democratic control
and judicial accountability (Bigo et al. 2008:303). Second, this apparatus fulfils
an important function by constructing an ‘‘outside’’ to the European Union in
the lines of the bio-political schism. The example Frontex shows moreover that
the reach of democracy and law is always contested.

Rescaling of Rights
Subaltern Cosmopolitanism
What are the consequences of these findings for an alternative counterhegemon-
ic project from the perspective of critical state theory and migration studies?
Although we do not follow Agamben in his conclusions about abandoning the
human rights discourse, we draw upon his principal idea, namely, to inspect
democracy and law from a perspective that radically questions the principles of
the nation state. He calls this paradigmatic figure ‘‘the refugee.’’ For us it seems
more adequate to replace it with the figure of the ‘‘illegalized female migrant’’
(see also Karakayali and Tsianos 2005:39). On the one hand (concerning
44 Transformation of the European Border Regime

illegalization), she embodies the way of life under the conditions of the myth of
controllable borders, which coincides with increasingly limited opportunities for
a legal entry into Western Europe leading in turn to an enormous rise in illegal-
ized migration (Hollifield 2003:47). On the other hand (concerning gender),
the female denotation points out the sexualized global restructuring, within
which an ‘‘ethnical reorganization of gender hierarchical division of labor’’
(Benz and Schwenken 2005:373) takes place, so that by now female migrants out-
number male migrants (Lutz 2005:66).
If the category of the illegalized female migrant can be seen as the pivotal
character of political history, it is because it is paradigmatic in three respects:
For one thing, all threads of current global power relations converge in it. A new
global characteristic of intersectionality between class, sex, and ethnicity crystal-
lizes in it, as produced by political economy in the form of transnational produc-
tion- and welfare chains. Because of a gendered unequal distribution of
reproductive work and a simultaneously increasing number of employed women,
the demand for services in private households has grown in the metropolises.
Illegalized female migrants without social insurance or legal status care for peo-
ple, raise children, make a ‘‘home’’ all over the world (Lutz 2005:66 et seq.). In
turn, family members or household employees in their country of origin look
after their own children; this creates a kind of transnational parenthood. It is
exactly this constellation, the mutually supportive interrelations of governance
and exploitation, which turn the figure into something like the starting point for
a critical theory of right and democracy in a globally socialized world. It is
through this figure that the socially produced rifts are easy to see instead of
being rendered invisible by a fictitious, territorialized, ethnificated genealogy in
a substantive concept.
Second, these ‘‘marginal figures’’ are a significant driving force of transnation-
alization. All the military techniques of border control described above have not
stopped the movement of migration. By taking their ‘‘right’’ to free movement,
migrants challenge the institutional apparatus. By overcoming borders every day,
they perform a pragmatic post-national practice, which turns them into clandes-
tine European citizens, as Regina Römhild (2006:212) puts it. This figure sets
therefore the standard for a new disenchanted concept of the cosmopolitan,
which does not benefit from the cultural capital of a Western ‘‘privileged, middle-
class, and politically independent elite’’ (Vertovec and Cohen 2003:6) or from the
economic capital of the ‘‘transnational inner bourgeoisie’’ (Wissel 2007:93 et
seq.); thus it keeps a critical distance to the figure that Kant in his anti-colonial
concept of the ‘‘cosmopolitan right’’ had in mind (Eberl 2008:224; Niesen
2007:93 et seq.). Moreover, they build a subaltern cosmopolitism that is fuelled by
the pragmatism of every day life, the practices of frontier crossing and migrant
networks. Migration and mobility represent an at least imaginable option ‘‘for the
underprivileged, marginalized of global hegemony to find a better place on
earth’’ (Römhild l.c., 215 et seq.). This cosmopolitism does not envisage paradisia-
cal post-national conditions, but focuses within the realms of the possible on the
dream of a better life on the other side of the border (ibid. 217).
As such, and this is the third paradigmatic aspect, they are like the stateless
persons Arendt mentions, neither represented by a political community nor pro-
tected by a system. They live a ‘‘precarious, nomadic existence’’ as ‘‘counter-
camp’’ (ibid. 212) to the European network of control. Their way of existence
displays the level of institutionalization of ‘‘the right to have rights.’’

The End of Human Rights?

Agamben draws the conclusion that the concept of human rights has become
obsolete, as the paradigmatic figure of the refugee, in which human rights
 Sonja Buckel and Jens Wissel 45

should have been personified more than anywhere else, manifests the radical cri-
sis of this idea. Beyond all ideology, its ‘‘true function’’ consists in the inclusion
of the bare life into the juridico-political order of the nation state. The inclusion
into the political community can only be achieved by simultaneously excluding
those people deprived of the status of legal subjects (2002:190). With the decline
of the nation state, human rights thus lapse historically (Agamben 2001). But at
this point, the drawn juridical and state theoretical conclusion is erroneous.
Agamben joins law, state, and nation and turns this all-powerful, designed, and
consistent construct into a subject, leaning on Carl Schmitt’s conservative consti-
tutional theory of law. The ‘‘in the same measure exaggerated and uncomplex
concept of the political,’’ which Agamben infers, merges statehood completely
with the decisionist designation of the state of exception (Lemke 2004:959). With
this move, he falls back on the obsolete state theoretical position of the repressive
Leviathan. Here Agamben turns Foucault—to whom he mainly refers—
on his head himself. Foucault conceived of Bio-Power as the modern turning
away from unproductive power, ‘‘to make die, or to let live,’’ to a ‘‘management
of life’’ corresponding to capitalist socialization in the global North (Foucault
1998:165 et seq.; see also Sarasin 2003:58). The production of ‘‘bare life’’ by the
exclusion from legal form makes the border regime productive in Foucault’s
sense, by producing mobile, precarious, transnational people, without which
both the German home care system and the Spanish fruit and vegetable produc-
tion would collapse. The almighty state, as subject, is supposedly overcome by
the conception of an ‘‘unstoppable decline of the nation states.’’ This theoretical
and historical utopia remains merely a supposition. As we have tried to demon-
strate, a new constitution of statehood in Europe has already occurred, so that
the question of state authority has not become unnecessary, rather it has arisen
anew.
From Agamben’s state concept follows that the law is nothing but an outward
expression of itself as subject, created to determine what is inside and what is
outside. In his concept, it does not acquire a dignity of its own, but is solely in
the service of ‘‘sovereignty.’’ But states do not necessarily require human rights,
as demonstrated by totalitarian regimes. Agamben overturns Arendt’s paradoxi-
cal concept into a depoliticizing approach, in which bare life and the state of
exception are no longer the result of a complex political process, but rather an
‘‘ontological destiny’’ (Rancière 2004:301). His legal nihilism fundamentally
underestimates the internal function of modern law. It is not a mere instrument
of powerful interests, but a social form; that is to say an independent social rela-
tion, which dissociates itself from the direct relations of power with its specific
mode of abstraction: through its procedures, its discourses, its self-produc-
tion—thus, with its relational autonomy. Insofar, it is also always power’s reprieve
(cf. Buckel 2007:242 et seq.).
Bio-political means of exclusion express social power relations. The creation of
borders along a variety of criteria for inclusion and exclusion, which depend on
ethnic and racial distinctions as well as class and gender, is one of the main areas
in the fight for citizenship (Yuval-Davis 2001:124). This conflict takes place in
the European border regime around the bio-political schism. Human rights are
the hegemonic norms of the human being as such. As an aspect of the norma-
tive order, they are counterfactual; their concrete materiality is fought for in
social conflicts. That is why human rights are, as Rancière calls it (2004:303),
‘‘part of the configuration of the given,’’ inscriptions as free and equal and the
rights of those who make something of that inscription. The subaltern cosmopo-
litism of the movement of transnational migration as part of the European
demos to come takes, supported by global no-border-activists, possession of
spaces against all networks of control. They stage a dissensus in the ‘‘common
sense’’ of the EU border regime and thereby invoke their human rights as
46 Transformation of the European Border Regime

political subjects, challenging the current implementation of the inscription

(ibid. 304). Instead of giving up on the human rights discourse, the point is to
insist on the fulfillment of its promise. To change the power relations in this
context would imply to contradict the ex-territorialization strategy—that is the
normative governmental power over the legally constructed ‘‘inside’’ and the
extra-legal ‘‘outside.’’ This power has to be confronted with human rights that
apply to ex-territorial places. For with such an extra-territorial approach, as
advanced by the European Court of Human Rights (De Londras 2008), territory
would become irrelevant for law enforcement. This would at the same time
undermine the idea of ‘‘a people’’ bio-politically based on ancestry, cultural
homogeneity or a common destiny. ‘‘People’’ unlike the regulatory object ‘‘pop-
ulation’’ would become an exclusively legal category, which would indicate a
mere community based on law. It would consist of those present at a particular
place. Those would form the political community of legal subjects, who would
arrange their affairs democratically and locally. To prevent the production of
‘‘bare life,’’ the exclusion from legal form, the permanent struggle for inclusion
is necessary—politically, legally, and in civil society. The institutionalization of
the yet illegalized female migrant’s ‘‘right to have rights’’ would thus be the pro-
cess of advancing human rights inside the traditional framework of state rule
until the moment these rights can no longer be contained within it.

Acknowledgments
The state theoretical premises of this article originate from a research project orga-
nized with John Kannankulam and funded by the German Research Foundation
(DFG). (The transnationalization of the state in the process of the formation of a
joint European migration control policy; see http://www.staatsprojekt-europa.
eu.) We also thank the two anonymous referees for their inspiring criticism.

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