The Northern Penal State and the Global Prohibition Regimes

An essential counterpart to the implosion of control, outlined above, has been an ‘explosion of control’ (Squire 2011: 2)—a progressive diffusion of border policing and crime control practices into the domain external to the nation state. To achieve the objectives of internal (‘crimmigration’) control the Northern state has, particularly over the past two decades, progressively expanded its control activities into the international domain, externalizing its ‘domestic’ control functions and exporting a migration control agenda (Mitsilegas 2010; Weber and Pickering 2011; Pickering and Weber, Lee, Chapters 5 and 7 respectively in this volume). The trend is evident in the growing size and complexity of deportation regimes (Brotherton and Barrios 2009; De Genova and Peutz 2010). In recent years, one of the fastest growing activities of the European external border control agency, Frontex, has been the organization of chartered return flights to countries such as Serbia, Nigeria, Kosovo, The Democratic Republic of the Congo, Iraq, etc. These flights pool resources of Schengen states and offer assistance in returning to the global South various types of unwanted mobility, including irregular migrants, foreign citizens who have committed criminal offences, and rejected asylum seekers.

These charter flights act primarily in the interest ofthe Northern states organizing them. Many Southern societies greatly depend on the remittances from their citizens abroad, and several observers have pointed out the detrimental effects that particularly the return of ‘criminal aliens’ has on the returnees and on their countries of origin (Weber and Bowling 2008; Brotherton and Barrios 2009). The flights are nevertheless supported by an elaborate political and legal regime in which many Southern states are more or less active participants. Taking the European Union as an example, we can see that it has been particularly effective in using the stick and carrot approach in exporting its migration control agenda and co-opting its Southern and Eastern neighbours into doing its policing jobs, effectively creating ‘law enforcement buffer zones’ (Andreas and Nadelmann 2006: 15). Frontex, for example, seeks to ‘constantly develop reliable and effective network of partnerships at the operational level with the relevant authorities of non-EU states’.[1] Frontex has thus been exporting not only unwanted aliens but also border control training standards and surveillance equipment, while simultaneously expanding the geographical scope ofits own activities and de facto extra-territorializing the European border (Aas 2011b; Gammeltoft-Hansen 2011).[2] However, the EU’s burden-shifting strategies are by no means an anomaly and share several traits and objectives with the Australian Pacific Solution and the American Caribbean Solution (Mitsilegas 2010; Weber and Pickering 2011). There has been, as Mitsilegas (2010: 39) observes, a ‘convergence between models of extraterritorial immigration control globally’. Moreover, Frontex activities should be seen as part of a broader set of political and legal strategies and strategic partnerships which have put ‘co-operation against illegal migration’ firmly on the EU’s international agenda and at the centre of its development and aid strategies.

Evidently, geopolitics matters, in migration control, as well as in crime control. Although the state is usually the main agent of criminalization, it is important to acknowledge that states are not the same and that their interests depend on their geopolitical position. Some states are more sovereign than others (Dauvergne 2008: 172). Several historic and contemporary accounts of the internationalization of crime control have pointed out that what is illegal, and how it is policed, often depends on the political interests of certain states, most notably the United States and Western Europe (Andreas and Nadelmann 2006). This variation has been particularly evident in the international efforts to combat drug trafficking and sexual slavery: ‘[T]he models, methods, and priorities of international crime control are substantially determined and exported by the most powerful states in the international system’ (Andreas and Nadelmann 2006: 10). A similar situation exists in the illegalization and policing of migration. Spatialization is, as Coutin (2005: 6) observes, ‘the key to both criminalization and to challenging how criminality is defined’. It offers an opportunity to explore and embrace the geographical and political situatedness of law. Extra-territorial border controls and the outsourcing of asylum are, according to Gammeltoft-Hansen (2011), an example of doing ‘politics through law’, where governments strategically seek to shift or deconstruct legal responsibilities otherwise owed by reference to law itself.

One of the main arguments of this chapter is that the objectives of migration control are formative of novel contours of criminalization, punitiveness, and the state—the Northern penal state—which is crucially defined by its geopolitical position. The Northern state has been creating an elaborate legal regime that criminalizes certain forms of movement, effectively rendering large proportions of the world’s population ‘illegal’ (Dauvergne 2008). While the control regimes are driven by the interests of the Northern (migration importing) states, the people affected by them are primarily citizens of the global South.[3] The regimes consist not only of legal regulation, but also of an assemblage of mechanisms of policing, enforcement, and social exclusion related to the illegalization—the mechanisms which are becoming increasingly transnational in their nature. Moreover, as the dynamics ofcriminalization under conditions ofglobalization becomes increasingly international, the internationalization also includes the creation of globally meaningful labels of crime and deviance. As Dauvergne (2008: 18) observes:

[A]s ‘illegal’ emerges as a globally meaningful identity label, the characteristics of all those nations against which this other is imagined also tend to merge. The line between having and not having can no longer be easily conceived as fitting around the border of a nation and must instead fit around the border of all prosperous nations, creating a global understanding of ‘insiders’ and ‘outsiders’.

In other words, while traditionally class interests have been seen, particularly by Marxist scholars, as a driver behind state criminalization policies, when it comes to migration, the process still seems to be related to social inequality; however, the inequality is now globalized.

The ‘illegality’ of migration follows a similar, although not identical, trajectory to other forms of international criminalization, where new laws and prohibition regimes are not simply a response to a stable category (ie crime), but rather depend on the activities of powerful states and actors who have the capacity to redefine certain cross-border activities once considered ‘normal’ and condemn them as ‘deviant’ (Andreas and Nadelmann 2006: 7). This understanding builds on a conception oflaw as grounded, geographically and geopolitically contextual, rather than universal, abstract, and immutable. In it, illegality is not ‘a relatively fixed property or status that a given individual holds’, but rather:

a condition that any given individual can flit in and out of depending on the relation between his and her movements and activities and the movements and activities of national, international and/or transnational agencies. (Squire 2011: 7)

It may seem self-evident that ‘illegality’ is contested. However, it deserves further examination because it is precisely through the official state production of illegality (rather than irregularity) that the intertwining of border control and crime control is being played out.

  • [1] See .
  • [2] As of March 2012, Frontex had concluded working arrangements with the authorities of16 countries and was in various stages of negotiations with the authorities of a further nine countries(see ). Several aspects of this cooperation, particularly those concerning Libya, have been heavily criticized for prioritizing border control objectives atthe expense of human rights (Aas 2011b).
  • [3] Although the distinction between the ‘mobility exporting’ and mobility importing/restrictingcountries reflects approximately the global north—south division, this is not absolute and can also beseen within countries, for example in the former Yugoslavia, Italy, or the EU itself (the case of Roma).
 
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