Exclusion Through Imperio

Introduction

Nation states use law and geography productively to exclude people from legally entering sovereign territory, migrants and asylum seekers among them. They achieve this by erasing parts of sovereign territory, triggering the non-citizen’s exclusion upon entry into these spaces. States later enshrine these practised spatial tactics into law. While existing scholarship details exclusionary practices along and beyond boundary lines (Bialasiewicz, 2012; Coleman, 2007), fewer authors document the entanglements between law and geography that make these border exclusions possible. These mechanisms, we argue, involve the creation of new legal geographies designed to advance exclusionary policies. As Basaran (2011: 42) notes, ‘legal geographies are as much about legal spaces, the writing of law into space, as legal identities, the writing of law into populations.’ Three such sites include waiting zones in airports, search and rescue (SAR) areas at sea and excised migration zones of both sea and land. This article explores and compares the entanglements of law and geography in these three sites of migrant and asylum seeker exclusion. We trace exclusionary patterns that exploit a specific configuration of law and geography through each site. We argue that excision, whereby states purposely ‘erase’ some parts of their territory (Shachar, 2007), constitutes one such configuration. While we discuss specific geographies and histories to develop this argument, we also extend our findings beyond these particular sites in our conclusions.

Our use of the term entanglement refers to a particular configuration of law and geography in these three locations in both historical and contemporary border enforcement practices that we found in our research. In each site, we observe the deployment of migration control that simultaneously works through, yet contradicts, international legal norms, despite contrary claims by nation states. Authorities create and extend new jurisdiction and thereby subject those people placed, captured or immobilized in these three locations – in the airport, at sea and on excised territory – to different legal regimes. We conceptualize this phenomenon using Elden’s (2009, 2013) imperio, a boundless, limitless and administrative power, applied primarily – in our field sites – to migrant bodies as opposed to fixed spaces. In practice, this involves legal inclusion via alternative sets of procedures that alter rights – such as the right to seek asylum, experience freedom, access mobility or work – as enforced by state authorities. These distinct regimes operate through isolation and remoteness, where states mediate jurisdiction and legal protection by virtue of geography. The net result of this alternative legal inclusion, then, is to exclude migrants and asylum seekers from regular legal processes, thereby changing their legal status. These populations become subjected to alternate legal geographies that are distinct from territory, yet closely related to it.

Discussion and comparison of our different research projects informed our analysis. Although we used different research methodologies and data sources in distant locations, we arrived at similar dynamics and findings regarding legal exclusion via inclusion. These emphasized the importance of legal geographies as mechanisms of exclusion. Here we find and delineate a geographical mission creep, wherein the original intention to enforce borders shifts gradually outward to encompass and exclude greater numbers of people located beyond them. While the three study sites started as smaller, more contained spaces, they expanded beyond their original territorial demarcation over time. As Mountz (Forthcoming) notes, these sites operate akin to islands in the enforcement archipelago, beginning in one place but moving well beyond them. Through this expansion of jurisdiction beyond the edges of sovereign territory, sovereign power moves farther offshore, extending physically and socially outward. As a result, those trapped in these sites become isolated and excluded as objects of security.

States often initiate and expand these processes in response to the so-called migration crises. We attach our analyses of the extended jurisdiction created in our sites to three crises: growing attention to asylum seekers arriving at Charles de Gaulle airport in Paris in the 1980s; the 2001 MV Tampa incident off Australian shores and subsequent passage of excision legislation; and the 2014 and 2015 increase in arrivals from Africa and the Middle East off the southern shores of the European Union (EU). These crises – whether real or manufactured – are important because in our sites they result in the expansion of enforcement agendas and the extent of power, or jurisdiction, over migrant bodies and space (Mountz and Hiemstra, 2013). We examine how these geographical sites changed through shifts in the law, building on recent scholarship on legal geographies of migration (e.g. Martin, 2011).

This article addresses the mobility and immobility of people who migrate for different reasons, although many seek to enter sovereign territory to make claims for asylum or work. While the labels applied to them and their categorization vary over time in different local and national contexts, asylum seekers often come into play because of the particular and relatively robust legal regimes associated with asylum and refugee law. While we do not claim to have resolved the crises of representation and discourse that currently plague migration politics globally, we remain attentive to the very problems of hyperbolic and criminalizing language and representation that fuel the exclusionary practices, policies and laws detailed in this article.

Our article proceeds as follows. We begin with a brief discussion of existing literature and concepts pertinent to the legal geographies of exclusion. We then examine three specific locations to better understand the legislative and policy moves through which states create alternate legal regimes of exclusion. Our penultimate section offers analysis of commonalities among these three sites, reinforcing the formation of a geographical pattern of exclusion. We identify how states produce new jurisdiction over migrant bodies as a form of Elden’s imperio. Finally, our conclusion offers new questions and lines of inquiry engendered by this research.

Legal Geographies of Exclusion

In airport waiting zones, SAR regions and territorially excised zones, people arrive somewhere but have not entered the sovereign territory of their intended destination for the purposes of legal migration. They thus remain simultaneously inside and outside of the state, which Agamben (1998) argues is a central feature of the modern operation of sovereign power. Volpp (2012) supports this conclusion through analysis of case law from Australia and the United States. Specifically, she identifies how immigration laws situate non-citizens in relation to space:

In each of these examples, noncitizens who surely are in some sense ‘here’ are met by government arguments that they in fact, are not here. They are physically or rhetorically and legally placed ‘outside’ so that the government may unburden itself of them. While nation-states have cartographic borders that are drawn on maps, governments manipulate those borders…in order to control who has access to entitlements and benefits. (Volpp, 2012: 5)

Elden (2013), for instance, argues that jurisdiction historically refers to the extent of law, which in practice ascribed authority by determining who operated power, over what, to what extent, and under which rules. Elden also demonstrates that how empires, states and other polities made these decisions changed over time. Historical philosophers, for instance, conceptualized different jurisdictions (e.g. secular and sacred) for different types of laws and over different objects (e.g. people, property). According to Elden, legal scholars Bartolus and Baldus initiated the modern use of jurisdiction by establishing ‘land, or land belonging to an entity, as the thing to which jurisdiction applies, thus providing the extent of rule’ (Elden, 2013: 220). This definition has two novel features: ascription of land as the object over which power applies and implied consolidation of jurisdiction into secular authorities with specific territories. Prior to these innovations, jurisdictions often featured scattered and vague topologies, which led to overlapping and thereby conflicting legal geographies (Elden, 2013: 155). Bartolus and Baldus sorted the precedence of these authorities by separating effective (de facto) from rightful (de jure) jurisdiction (Elden, 2013: 223). Modern jurisdiction thus ideally consists of states operating effective and rightful power over all objects within their territory.

Despite Elden’s generalization of jurisdiction corresponding with territory, some types of jurisdiction can exceed sovereign boundaries (Elden, 2013: 166). Modern legal scholars and political scientists attempt to conceptualize this phenomenon through ideas of ‘extraterritoriality’ and ‘deterritorialization’, describing how jurisdiction may lie beyond or even transcend sovereign territory (Sassen, 2006). These concepts are at best limited to understanding de jure jurisdiction, since it is the enforcement of law in practice by states that applies power to space, thereby creating de facto jurisdiction. Contrary to previous claims, then, law remains spatially limited by nation states, and the power at work is not merely legal. Jurisdiction is not intrinsic to territory but, as Foucault (2004) suggests, produced by states.

One type of jurisdiction that may exceed territory is imperio, or imperial power. Elden (2009, 2013) conceptualizes imperio as a form of rule that is fundamentally boundless, limitless and administrative. Imperio is boundless in that it has no final spatial boundary and is therefore not contained as territory is. It is limitless, bureaucratic in operation and administrative in that, like Foucault’s (2010) police state (polizeistaat), there are only internal checks to its power. While Elden cites the Roman Empire, Holy Roman Empire and Papacy as examples of imperio in Western European history, he explicitly argues that modern US power is not imperial because its primary political object is space. One limitation of this argument, however, is that it does not outline how states determine or enforce the object of rule. As we demonstrate in this article, when migrant bodies are the objects to which states produce and apply jurisdiction, jurisdiction and territory become uncoupled, and imperio becomes possible.

Agamben’s work (1998, 2005) has profoundly influenced scholars working on these sites. The philosopher ties the condition of existing simultaneously at the threshold between inside and outside to what Carl Schmidt called ‘the state of exception’. The ‘law is outside of itself’ in this state, yet remains as ‘force of law’: the normal division of violence and law produced by the state breaks down, and the sovereign dictates and enforces whatever actions are necessary to maintain the juridical order. The state creates this condition by suspending the law, continually violating its own norms, ostensibly so that they may be otherwise enforced. Those placed in this state are trapped in spaces of potentiality (e.g. inclusion/exclusion; violence/law; internal/external), decidable only by the sovereign; realized only by the sovereign’s removal of impediments to either part of the relation. The state activates this position on bodies through the ‘ban’, in which it abandons the political person (bios), thereby turning its very life (zoe) into a political object. Agamben’s claims that Homo Sacer, or bare life, is therefore representative of the migrant in that it is both inside and outside of the state’s law and geography in the nomos of political power, the camp – the site of the state of exception.

Scholars delineate the limits of Agamben’s ideas (e.g. Mitchell, 2006). One limitation of his analysis involves the construction of the state of exception as ‘inclusive exclusion’ (Agamben, 1998: 10). This means that the sovereign renders bodies simultaneously inside and outside of the state from a position of legal inclusion using legal exclusion. Agamben’s conditions for the camp as a spatial model in particular state that the camp is a suspension of law, and that this becomes a permanent arrangement outside of the ‘normal order’ (Agamben, 1998: 166).

Agamben’s (1998, 2005) liberal discourses associate deprivation of rights with exception, extra-legality or emphasis on executive powers. In contrast, Basaran (2011) rejects this distinction between liberal and illiberal rule and demonstrates how liberal democracies use legal techniques to redraw the distinction between inside and outside. In her analysis, border zones are ‘legal spaces’ (Basaran, 2011: 50) that exclude specific populations from the existing rights regime. The concept of legal space makes it possible for individuals sharing the same geographical space to have entirely different sets of rights stemming from their different legal statuses. Legal spaces counter Bosniak’s (2007) notion of ‘ethical territoriality’, according to which individuals should be provided with the same rights on account of being located on the same geographical territory of a state. In arguing that illiberal practices are made possible through the regular democratic and legal processes of liberal states, Basaran invites scholars to study legal bordering practices rather than territorial borders. Our analysis extends Basaran and Elden, moreover, by unfolding over the bodies of migrants themselves, which leads to conceptually different power and spaces than they describe. We agree with Agamben and Basaran, therefore, that it is necessary to analyse the creation of jurisdiction itself in order to understand territoriality.

Scholars writing in the field of border studies effectively delineate the changing locations of borders as they are moved offshore or externalized (e.g. Bialasiewicz, 2012; Coleman, 2007). Some trace externalization back to the 1985 Schengen Agreement, which reduced internal borders between member states of the EU. Others trace this offshoring back further to US maritime operations in the Caribbean.

Whatever its origin, an important but unexplored result of the offshore management of international migration, which externalization embodies, is the process by which states render migrant bodies and the spaces around them as security threats, thereby constructing them as internal with regard to the exercise of state power. We understand geography as a means to this end. Waiting zones, SAR areas and excision zones are notable examples. We draw on Foucault and Elden to advance this idea. Foucault (2004: 378) uses internal/external power as an analytical distinction with respect to the operation of the state’s power through ‘raison d’État’, or the idea that ‘the state is organized only by reference to itself’. The state’s reconfiguration as an object with final sovereignty over fixed territory shifted security to its internal power in early modern Europe (Elden, 2013; Foucault, 2004: 387). The mechanism of this security, called police, is the ‘maintenance of the relations of forces and development of the internal forces’ to ‘ensure maximum growth of the state’s forces while maintaining good internal order’ (Foucault, 2004: 384, 410). This contrasts with external power, where states check each other (e.g. the international system). Foucault, however, does not explain how external objects, like migrants, become internal and therefore subject to security.

This internalization parallels externalization, or the outward spatial enforcement of the border, through containment. Elden (2009; 2013) shows how containment works through imperio: its objects have no fixed spatial boundary and its perpetual expansion is limited only in application through the extent of enforcement. Waiting zones, SAR and excision are instruments of this expansion. They are pieces of systems designed to manage illegalized migration in all stages and places and are therefore parts of an empire that emerges from containment.

We aim to empirically demonstrate the processes delineated conceptually in this section, including imperio, and the ways that this power alters legal subjectivities and leads to exclusion. In order to accomplish this, we now examine the historical development of each site and contemporary operation of new jurisdictions that enable exclusion.

The Creation and Operation of Legal Regimes of Exclusion in Three Sites

Here we outline our three cases and their parallel legislative histories and contemporary dynamics, attending to the ‘crises’ that preceded the exclusions and associated policies. As we demonstrate, states resorted to slightly different exclusionary mechanisms to keep undesirable populations at bay. In the case of the waiting and excised zones, France and Australia have tailored jurisdiction to withdraw access to rights within their territory. In SAR regions in the EU as well as in the case of Australian offshore moves, states created jurisdiction over spaces located far beyond their territory, the high seas and even other states. France started to manipulate jurisdiction in the 1980s to prevent asylum claimants from entering sovereign territory to seek refugee status; the development of this policy is presented in Table 1 below.

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Table 1.

From Excision of Paris’ Airports’ International Zone to Waiting Zones’ Exclusionary Legal Regime, 1980–2011.

Time	Policy-Related Event
1980s	Increase in the number of asylum seekers arriving at French airports
Late 1980s–early 1990s	Establishment of international zones in Paris airports as extraterritorial spaces
1990	France signs the Schengen Convention
1992	Creation of waiting zones: the Law on the Waiting Zone is passed
2001	The boat East Sea carrying 910 refugees runs aground on a French Riviera beach
2003	Extension of the definition of the waiting zone to include accommodation ‘nearby the place of disembarkation’ as well as any place where an entering non-citizen goes for administrative or medical reasons.
2010	A boat drops off 123 refugees in Corsica
2011	Further extension of the definition of the waiting zone: ad hoc waiting zones may be created outside of a border crossing

Excised Zones: On Land and at Sea

While covering a vastly larger geographical area, the history of Australia’s excised zones holds much in common with the development of France’s port of entry waiting zones. Contemporary Australian excised zones developed over a time period that begins in the 1980s, as shown in Table 2. The first decision to excise in 2001 was precipitated by one infamous crisis episode in recent Australian history, known as the MV Tampa incident. When a Norwegian freighter rescued over 400 migrants on a ship that was in distress, Prime Minister John Howard refused to allow the Captain call at the next port of entry, Christmas Island, which is Overseas Australian Territory. Facing poor chances of re-election according to polls, Howard turned a regional rescue operation into an international incident. This was a political move to establish a hard line on border enforcement that ultimately proved successful in Howard’s re-election.

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Table 2.

Timeline of Australian Territorial Excision, 1980–2014.

Time	Policy-Related Event
1980	Migration Act amended to create ‘migration zone’ in Australia
1981	Migration zone extended to include Christmas Island
1992	Migration Reform Bill introduces mandatory detention for those without a visa and removal of persons ‘illegally in Australia’
2001	First proposal to excise Australian territory from the Migration Zone, following MV Tampa incident and including Christmas Island
2002	Excised zone extended geographically to pre-empt asylum claims
2003	Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 excises additional areas of migration zone
2004	First mention of bifurcated migration processing (i.e. at on-/off-shore centres) occurs in the budget’s review
2012	The Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 changes excision so that offshore processing includes those who reach sovereign Australian territory
2013	Regional Resettlement Agreement paves way for Australia to detain asylum-seekers in non-Australian territories
2013	Operation Sovereign Borders mounts aggressive interception campaign to stop all boats carrying asylum seekers before they reach Australian sovereign territory

Prompted by the incident, Parliament returned and passed its first round of excision legislation, part of Australia’s ‘Pacific Solution’, retroactively declaring thousands of kilometres of Australian territory to no longer be part of Australia for the purposes of migration. The ‘not so Pacific solution’ (Magner, 2004) also involved the creation of two tiers of access to asylum in Australia. Those non-citizens intercepted or landing within excised territories would therefore have more restricted access to asylum through the entanglement of enforcement practice, law and geography. The Pacific solution involved a policy of detaining asylum seekers on islands. Those detained on Christmas Island had non-statutory access to asylum, whereas those detained on Nauru and Papua New Guinea’s Manus Island (i.e. non-Australian territory) had highly restricted access at first, and later, no access.

The strategic entanglements of legality and geography were always part of Howard’s design to deflect, deter and exclude. These have been carried forward in subsequent extensions of the excised territory and additional ‘solutions’ implemented by Australia in the years since. The result has been a fairly continuous series of policies enacted by diverse political parties to mediate access to asylum and exclude, including interception, excision and detention on islands. As in France, the excision zone itself was extended geographically through legislation in subsequent years to prevent human smugglers from evading excised zones. First, the ‘migration zone’ was extended in 1981 to include Christmas Island. In 2002 and 2003, after the initial excision was legislated, excised zones were extended farther offshore and then extended to include Australian territory onshore. According to the Department of Immigration, Multiculturalism and Indigenous Affairs Minister Killesteyn, stopping the smugglers ‘is a simple matter of geography. If you remove the outlying islands from the capacity of smugglers to simply drop off their cargo, they are forced to look for other routes that will invariably bring them closer to Australia [and therefore render them interceptable]’ (Parliamentary debate on Migration Legislation Amendment, 13 May 2003). As Taylor (2005) shows, even those asylum seekers who eventually enter mainland territory still carry the excision into the legal system as a bubble on the body. In 2012, the Migration Amendment extended excision so that offshore processing included those who reached onshore territory. This geographical mission creep – first, offshore, and then to include anyone intercepted there, no matter their eventual location – reflects Elden’s imperio as boundless extension of jurisdiction.

At the time of implementation, each decision to extend excision and restrict access to asylum involved crisis, whether an actual migration event – such as a boat arrival – or politicians’ relentless use of migration to advance political campaigns and careers. As a result, an association can be mapped between each new Prime Minister’s entry into office and new uses of regional ‘solutions’. As one example, Labour Prime Minister Kevin Rudd ended the Pacific Solution when he entered office in 2008, moving all offshore processing to Christmas Island. When he returned to office later, Rudd then reopened the facilities on Nauru and Manus that he had previously closed. The relentless extension of the reach of Australia’s migration laws, zones and their excisions and exclusions are a clear demonstration of Elden’s imperio: the extension of jurisdiction, seemingly without limit.

In 2013, new, Conservative Prime Minister Tony Abbott implemented Operation Sovereign Borders and the Regional Resettlement Solution Arrangement (Hodge, 2015). The Operation involved an aggressive interception campaign, moving borders farther offshore to thwart asylum seekers. The Australian navy reportedly intercepted ships so far from Australian waters that Indonesian officials accused Australian counterparts of infringing on its sovereignty over territorial waters. The Regional Resettlement Arrangement was also designed to deter all asylum seekers traveling by sea, truncating nearly all access to asylum in Australia and moving all intercepted asylum seekers to offshore locations, accompanying the reopening of Nauru and Manus and effectively ending access to asylum in Australia. The agreement negotiated the outsourcing of requests for asylum to other countries that were not signatories of the 1951 Convention relating to the status of refugees or the 1967 Protocol.

While geographically extreme, these offshore moves were the outcome of years of similar measures that began with the 2001 excision and can be understood as working similarly to the creation of the waiting zone at Charles de Gaulle. Both the waiting zone and the excised territory are built upon a productive entanglement between geography and legality that precludes a well-established legal subjectivity: asylum claimant. As a form of imperio, these geographical extensions of jurisdiction trump legal subjectivity and access to rights. Alternate legal regimes in these sites are premised on the idea that asylum claimants are first and foremost individuals whose mobility needs to be controlled. Over 1 year into the processing of asylum seekers on Nauru, a human rights report found unacceptable conditions and prolonged limbo; at the time, only one asylum claim had been processed (Amnesty International, 2013). Similarly, after Australia entered into a lucrative arrangement involving payment of $4 million (AUS Dollar) to Cambodia, only four people had been resettled there 2 years later.

The SAR Region

The European Council (EC) and European Commission (COM) negotiated the use of SAR for intercepting migrant boats at sea over time, the key events of which are shown in Table 3. They tied these tactics to the production of the ‘external maritime border’, the development of which we explore here. The Schengen Acquis and European Union Treaty were critical in forwarding a unified security policy. This policy was solidified at the 1988 Rhodes EC, where European leaders agreed on the organization of controls at the ‘external border’ (COM, 1991: 36). One goal of these controls was to coordinate and harmonize national policies to combat illegal immigration.

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Table 3.

Key Policies Leading to the Deployment of Search and Rescue in Interception, 1985–2006.

Time	Policy-Related Event
1985	Schengen Acquis
1993	Establishment of the Schengen Area
1997	Treaty of Amsterdam
1997–2001	Odysseus Programme
1999–2003	Tampere Programme
2001	Inception of Frontex (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union)
2002–2006	ARGO Programme
2003	Programme of Measures to Combat Illegal Immigration Across the Maritime Borders of the European Union
2004–2008	Hague Programme
2005	Inception of the External Borders Fund, 2007–2013
2005	Inception of the European Patrols Network

The imagination of the external border arose from the structure and framing of the Schengen Acquis. The push for a ‘policy of containment’ conflicted with the abolishment of internal border controls created by the Schengen Area in January 1993 (Betts, 2011: 78-80; Castles and Miller, 1998: 9-10; Samers, 2010: 18-20). The EC decided as early as 1992 that all controls would be moved to the external border (COM, 1992: article 2). COM defined this space as the first border between a member state, including all of its ports, and a third country (COM, 1992: article 3).

The EU authorities identified illegal immigration as problematic immediately after creating the Schengen Area (COM, 1993). COM emphasized ‘the urgent problems arising from illegal immigration’ as early as 1994, tied to transnational criminal networks, drug and human trafficking and terrorism (COM, 1994). The EC framed the maintenance of the external maritime border as a way to establish a ‘common security identity’ of the Union (COM, 2002a: 5). Failure to prevent unauthorized migration, then, proved threatening to European solidarity and entailed significant ‘political and strategic risk’ (COM, 2003: 7). One political risk requiring ‘fighting illegal immigration’ was the legitimacy of the asylum regime, which policymakers stated was compromised (COM, 2000b). Another was the public’s awareness of the ineffectiveness of border control and surveillance, especially at sea (COM, 2003: 7). Migration by boat was even included in a category of risks covering natural disasters, presenting it as an abnormal and dehumanized threat (COM, 2006a: 25).

Changes in the politicization of illegalized movement at sea coincided with alterations in the locations and functions of spaces of control. By 1998, moreover, COM documents proposed the management of illegalized movement in ‘all stages’, especially via interception at sea (COM, 1998b). This geographical fiction of the external border corresponded with a call to move asylum and visa processing to or near countries of origin (COM, 2000c). The EC and COM placed these calls within a growing discourse of ‘crisis’, which continually called for increased authority and resources at the Union level (COM, 2001: 5; COM, 2002b: 27; EC, 1999). Interception was framed as the ideal spatial tactic to enforce the external border, and policymakers proposed to push it as close as possible to the ‘point of origin’ of boats (COM, 2001: 3). It was in this context that EC selected SAR as the legal means to intercept these boats.

As the perceived threat of illegalized movement grew, the EC and COM created new authority, institutions and material resources to control movement across the external maritime border. The culmination of this process at sea was the creation of Frontex and the European Patrols Network by 2006. These policies built a coordinated maritime interdiction network using SAR under the auspices of a proto-EU border guard. The design of this institutional framework was to intercept people moving by boat as far away from the Union as possible.

The formal establishment of the Schengen featured few policy instruments to manage the external border. The EC and COM officials actively created these at key moments in time. The Treaty of Amsterdam gave Union agencies the authority to handle migration control and prioritized the operation of the Justice and Home Affairs Council (JHA) to create policy to this end (Council of the European Union [CEU], 1997). JHA reports became the basis of the Tampere and Hague Programmes, which outlined action plans and timetables to control the external border (COM, 1998c). The EC and COM fed funds ¹ into a growing number of policy experiments managed by the 5-year Odysseus and ARGO Programmes (COM, 1997: 2; COM, 1998a). COM ultimately used these resources on external border projects and, in particular, the Union’s first joint maritime interdiction operations (COM, 2004a: 9). ² JHA and COM freed these costly projects of their ad hoc funding through the creation of the External Borders Fund in 2007 – which had enough money to finance the entire ARGO Programme 38 times over (COM, 2005a).

The creation of Frontex in 2004 unified the ‘integrated management’ of the external border at sea using interdiction operations. The EC referred to Frontex as the ‘nucleus of an overall approach’ to its plans and even approved it before completion of its feasibility study (COM, 2001: 17; COM, 2002a). The COM designed Frontex to progressively expand its activities beyond its bureaucratic mandate as the precursor to an EU border guard (COM, 2002a: 21). Frontex became the chief enforcer of the Schengen Borders Code and took over joint maritime interdiction operations beginning in 2006 (COM, 2004a: 3; COM, 2006b: 9).

Frontex’s operations were the first to make use of SAR as the basis for interception of migrant boats, as established by EC in its 2003 Programme to combat illegal immigration across the maritime borders (CEU, 2003). The spaces in which this was to occur were called ‘SAR regions’. ³ This secret communication called for the creation and expansion of joint maritime interdiction operations as the basis for control of the external border at sea. It was also the first document to propose the use of SAR to achieve this control. The Schengen Borders Code, which defined practices during interdiction operations, enshrined SAR as a working basis for enforcement of the external maritime border (COM, 2002a; COM, 2004b). COM regularized these measures in the inception of the European Patrols Network in 2005, which started permanent union-level maritime interdiction operations throughout the Mediterranean Sea via SAR regions (COM, 2005b: 4–5; CEU, 2006). Frontex ran these operations in cooperation with third countries, using SAR as the foundation for joint patrols on the high seas and third-country territorial waters (COM, 2005b: 8–9; CEU 2006: 12–13). At least 550,939 people would be intercepted partly as a consequence of this arrangement in the Central Mediterranean Sea alone between 2006 and 2015 (De Bruycker et al., 2013; Frontex, 2015; 2016).

The use of SAR as an operational basis for intercepting migrant boats in the Central Mediterranean continues to present. In 2016, the EU enhanced resources allocated to Frontex’s Joint Operation Triton, as led by the Government of Italy. It also enacted Operation Sophia (EUNAVFOR MED), a military interdiction operation coordinated through the European External Action Service (EEAS, 2017). Frontex reported that border authorities intercepted at least 181,333 migrants in the region by the end of 2016 (Frontex, 2017).

Discussion: Mission Creep and the Creation of Jurisdiction Within and Beyond Sovereign Territory

Globally, countries share and resort to similar techniques to exclude. The creative manoeuvres carried out by Australia, for instance, on its own and other, non-Australian territory bears resemblance to both the waiting zone and the SAR region. The geographical techniques discussed in this article can be sorted into cases where states manipulate jurisdiction within their territory and cases where they extend it far beyond their own territory.

In each of the cases we explored, states manipulated jurisdiction to suit political goals. This manipulation resulted in the de facto creation of new legal spaces in which migrants and asylum seekers were subjected to alternate legal regimes. States produced these spaces through imperio, as opposed to sovereignty. This means that they frame migrant bodies as their primary political object, not space, and that the application of this power is boundless, limitless and bureaucratic. It is on these new spaces that alternate sets of rights replace the protection that ought to be granted under international law, thereby enabling exclusion through legal inclusion.

Interestingly, these exclusionary tactics were all set in motion in the 1980s and developed through the law. In the Mediterranean case, for instance, states such as Malta have reinterpreted international law (the Law of the Sea) to suit policing and interception goals (Basaran, 2011; Klepp, 2011). Similarly, French and Australian waiting and excision zones came into being through the law. In both cases, national parliaments expressly approved the imposition of discriminatory legal regimes and associated enforcement practices by border agencies over an expanding amount of space. Parliaments, therefore, approved of imperio. While these alternate legal regimes de facto restrict or even preclude access to asylum, states strive to maintain a law-abiding facade (on paper, it thus remains possible to seek asylum). This finding is consistent with Gammeltoft-Hansen and Hathaway’s (2015: 239–240) observation that ‘most fundamentally, wealthier states realize the critical symbolic importance of appearing to remain engaged with the global refugee regime.’

When located far away from state territory, illegalized migrants are difficult for authorities to manage due to their location. They are external in the Foucauldian sense: out of sovereignty’s reach (i.e. territory), yet constructed as internal to its forces with potentially harmful effects (Ceriani et al., 2009; Gil-Bazo, 2006). Geography, via control of sociolegal status, as we showed in our cases thus represents a powerful indirect characteristic which state authorities can manipulate to render migrant bodies internal to their power. When intercepted in the high seas or in other states’ territorial waters, for instance, migrants and asylum-seekers are outside of the sovereign’s power and become excluded via legal inclusion. Contrary to Agamben, then, who frames Homo Sacer as initially included and then excluded via the ban, migrants and asylum seekers are first legally included via alternate regimes in order to exclude them from the legal rights they would otherwise benefit from under international and domestic law. Our sites are thus unlike the camp since imperio is not spatially fixed, but, rather, makes creative use of geography to continually move. These spaces are not outside the legal order and do not represent its temporary suspension, but in fact come to constitute that order for migrants and asylum seekers through regular enforcement practices. The limitless and administrative properties of these new legal regimes allow states to frame and respond to the latest ‘crisis’ in exceptional ways.

The SAR regions alter legal subjectivities by assigning new jurisdiction in the space they occupy, thereby allowing interception. This is possible through the Safety at Sea and SAR Conventions, which permit states generous leeway in determining when a boat requires rescue and what they may do with it and its passengers, despite the fact that jurisdiction normally belongs to a boat’s flag state when it is beyond territorial waters (Coppens, 2013; Gammeltoft-Hansen, 2008). One major consequence of this processing of internalizing migrant bodies is their subjection to the police state (Foucault, 2010), or blurring of the juridical and executive in the hands of bureaucrats with unlimited authority in achieving the state’s objectives (akin to Butler’s [2004] depiction of detainees in Guantánamo Bay). Migrants are thus simultaneously made internal and external to the state’s geography and power.

That states render migrants internal follows a ‘policy of containment’ designed to keep most international migrants out of wealthier states (Castles, 2003). Waiting zones, SAR and excision consequently are new border sites: spaces demarcating political and legal status (Agamben, 1998; Franko-Aas, 2011). Containment is a logic of security that entails a series of mechanisms through which undesirable bodies can be kept as far away as possible from the state. Elden (2009) further postulates that containment implies spatial tactics of integration and pre-emption in order to create and maintain contained spaces. These represent an expansion of territory, or space as a bounded container subject to political power (Elden, 2013). Waiting zones, SAR and excision, then, in attempting to keep migrants in defined spaces, integrate their bodies and spaces to the state’s political and legal processes, pre-empting their arrival as states create containment and thereby produce new territory; however, because they function using imperio, migrants subsequently become both inside and outside of territory. They are simultaneously subjected to an alternative legal geography that is distinct from territory yet intimately related to it. The operation of imperio is not simply a process of deterritorialization or extraterritoriality, whereby territory is removed from within or pushed beyond a state, but a distinct legal geography in which jurisdiction is not contingent on territory.

In all three cases, exclusion first started as practice enforced by states before being formally enshrined in law. This finding is consistent with Mountz’s (Forthcoming) observation that often ‘externalization is not formalized in written policy or law, but instead established through daily practice’. Enforcement by state authorities in waiting zones, excised zones and SAR regions led to Elden’s de facto jurisdiction. This application fit his model of imperio.

Conclusion

We have argued that states use jurisdiction creatively to pursue exclusionary goals. By manipulating and extending jurisdiction through imperio, France, Australia and EU countries created new legal geographies distinct from territory, wherein individuals were subjected to these states’ jurisdiction without being granted the rights normally associated with it. These border zones are never lawless spaces: exclusion is always crafted legally, albeit in different ways.

Importantly, the manoeuvres hereby described do not belong to the past. Neither are they circumscribed to these three cases. For instance, the Spanish Ministry of the Interior has argued that the regular domestic legislation pertaining to immigration (Ley de Extranjería) does not apply to individuals found between the two fences separating Morocco from the Melilla enclave. In spite of both fences being located on Spanish territory, the zone between the two barriers has been dubbed a ‘no man’s land’, this architectural design implemented precisely to delineate a zone of exclusion. Since 1998, foreign nationals encountered in this space have been detained and summarily returned to Morocco without the opportunity to apply for international protection. In 2014, these illegal practices were enshrined in Spanish law pertaining to immigration (Angel Acosta Sánchez, 2014). In violation of international law, Spanish legislation now provides for the immediate return of non-citizens climbing their way into Ceuta and Melilla. While the law provides non-citizens with the possibility of applying for asylum at the border, in practice they may well experience refoulement (Council of Europe Commissioner for Human Rights, 2015). The European Court of Human Rights rejected the government’s submissions that applicants - who had been found at the top of the third fence separating Morocco from Melilla - had not been located within Spanish territory. The court found that Spain had violated the prohibition of collective expulsions by summarily returning the applicants, as they had been under Spanish jurisdiction (2017; Case of N.D. and N.T. vs Spain).

The first key contribution of this article was to delve more deeply into and advance conceptual thought surrounding the intricate entanglements of law and geography to exclude along the margins of sovereign territory at sea, by air and on land. Our second key contribution was to illustrate this process as it unfolded in three regions. Yet as the Spanish example demonstrates, these processes are not limited to the three regions discussed.

The implications of these findings uncover sovereign moves to extend authority at the edges of sovereign territory, whether located within the mainland (as in airport waiting zones) or offshore. But these findings also hold important implications beyond the borderlands as these legal manoeuvres extend far beyond zones of excision, waiting zones and rescue areas, reducing all migrants’ rights. States extend their power by removing people and territory from ordinary jurisdiction. These legal techniques are dangerous for both non-citizens and citizens, as they rest upon the police state (Foucault, 2010) – normal checks of liberalism disappear, giving way to extended administrative power. They trivialize and justify diminished access to rights, spreading the idea that some human beings are undeserving of the protection granted by international law.

As mentioned briefly in our introduction, while they are designed to contain mobility, the exclusionary spaces discussed in this article are not themselves circumscribed to the geographical locations detailed here (Charles de Gaulle airport, Australian excised territory and SAR regions on the Mediterranean). Indeed, these practices move geographically, with enforcement operations held ever deeper in regions of origin, stopping people earlier in their transnational journeys. Future lines of inquiry will explore more fully and comparatively the movement of these policies and the uneven geographies and applications of rightlessness and statelessness as they are applied by states themselves.