Territoriality and the Law of Migration Control

Territoriality and the Law of Migration Control Juan M. Amaya-Castro Earlier versions of this paper were presented at the Helsinki Summer Seminar on Capitalism and the Architecture of International Law, Helsinki, Finland (August 2012), and at the 5th Annual Harvard and Stanford International Junior Faculty Forum, Stanford University, California, United States (October 2012). Many people provided feedback, but I am particularly indebted to Jessica Lawrence, Hassan El Menyawi, Martijn Stronks, Paolo Cuttita, Paavo Kotiaho, Henry Jones, Kjell Modeer, Deborah Hensler, and Ulad Belavusau. Special thanks also go to Sarah van Walsum and Thomas Spijkerboer, for their example and inspiration. Abstract: The role of law in migration control involves primarily, though not exclusively, questions of access to the national territory. As such, the law of migration control is a law of border and territorial control. In this general perspective ‘territory’ is a neatly demarcated piece of land, of which the border marks the difference between inside and outside. The territoriality of the state is generally considered to be an essential element of statehood, both as fact and in terms of the sovereign prerogative for control that it entails. This article first highlights the historical contingency of this state of affairs, how it is deeply embedded in the project of colonization and centralization that was part of the creation of the modern state, and how cartography, statistics, and other technologies of legibility and identification are part of this. In particular, it explains how control of domestic, not international, mobility was at the origins of national identification documents, which only relatively recently has morphed into the international system of passports. Subsequently, the article analyses the geographical dimensions of contemporary migration law, how it aims to control the decisions of potential migrants long before they even approach the border. Immigration states seek to push the territorial border away, and preferably in ways that do not involve an extension of their formal jurisdiction; geographic control without (territorial) jurisdiction is a common feature of extra-territorial migration control. If one then looks to the ‘inside’ of the territory, the law of migration control seeks to weed out irregular migrants by means of illegality regimes that make border control and identity verification ubiquitous. Seen from these perspectives geography becomes a malleable thing, rather than a static terrain over which to rule. Finally, the article briefly explores the geographical dimensions of a couple of ongoing important developments in technology and governmentality, and reflects on their significance for the law of migration control.  1. Introduction The sovereign right to control migration is often said to be the last obstacle to the onslaught of globalization. While borders have opened up to goods, services, and capital, they have imposed stricter limitations on the movement of people. It is unclear where this sovereign right comes from; its multiple reiterations indicate a degree of self-evidence that requires no explanation or justification. See however Bas Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (2012). What seems safe to say however, is that this sovereign right relates to the fact that states are territorial entities and that this territoriality is an exclusive feature of its jurisdiction, distinguished primarily from the equally sovereign territoriality of fellow states. As such, what is at stake is the exclusion of non-nationals from its territory. This right to exclude, to deny access or to deport or otherwise remove is articulated by means of the law of migration control. This law of migration controls pretty much takes for granted its role as conveyer or denier of access to the national territory. Territory here is a piece of land, neatly demarcated by a border, indicating a clear inside and a clear outside. As for the law of migration control, this is primarily involved with the question of access, as well as with the specific rights and obligations that go with this access. Here too, the implication is that there is a clear inside and outside of the national territory. Though there is a growing literature that concerns itself with the territorial dimension of migration control, indeed with its extra-territorial dimension, the idea of a territorial inside and outside seems unshakable, and with it, the idea of the territorial state that has the sovereign right to exclude – an idea so intractable that it would seem less a right and more a requirement or even an obligation. For an argument that migration control should be seen through the optic of international law, rather than through the optic of national sovereignty, see Juan M. Amaya-Castro, International Refugees and Irregular Migrants: Caught in the Mundane Shadow of Crisis” Netherlands Yearbook of International Law 2013 (forthcoming in 2014); in particular section 3.3. One qualification to this account deserves special consideration. The main narrative that frames the topic of migration control, whether it is in public political debate or in legal practice and commentary, is that of the right to exclude, the exercise of the sovereign will to limit immigration by immigration states that are zealously keeping people out in order to protect their wealth, their welfare privileges, their social and or ethnic and cultural identity, et cetera. This narrative fits well with the focus on access that belies the law of migration control. However, a competing narrative might open up a different and perhaps more balanced perspective. In this alternative narrative the primary purpose of migration control is selection, rather than limitation; or what has been called ‘social sorting’. This has been done in a different context, i.e. that of surveillance, by David Lyon; see infra. Generally speaking, states are as eager to attract migrants, or travelers, as they are to keep them out. See Ayelet Schachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, in 81 New York University Law Review 148 (2006). The law of migration control should be seen as fulfilling this dual function. Instead, the prevailing idea that migration law is primarily about keeping people out easily conflates with the idea of a territorial integrity that is under threat, prompting the sovereign right or duty to defend itself. These two narratives of territoriality may be understood through an analysis of how the territorial state is situated in a very specific historical moment. It is by means of such an analysis that this paper seeks to analyze how the law of migration control relates to territoriality. First, after explicating the historical contingency of the territoriality of the state it goes on to explain how this territoriality is historically embedded in the project of colonization and centralization that was part of the creation of the modern state, and how cartography, statistics, and other technologies of legibility and identification are part of this. In particular, it explains how control of domestic, not international, mobility was at the origins of national identification documents, which only relatively recently has morphed into the international system of passports. Subsequently, in section 3 the article analyses the geographical dimensions of contemporary migration law, how it aims to control the decisions of potential migrants long before they even approach the border. Immigration states seek to push the territorial border away, and preferably in ways that do not involve an extension of their jurisdiction See however, in careful rebuke of these limits to jurisdiction, and hence accountability: James C. Hathaway & Thomas Gammeltoft-Hansen, Non-Refoulement in a World of Cooperative Deterrence, University of Michigan Law School Scholarship Repository (Law & Economics Working Papers), Paper 106; http://repository.law.umich.edu/law_econ_current/106. ; geographic control without (territorial) jurisdiction is a common feature of extra-territorial migration control. If one then looks to the ‘inside’ of territory, the law of migration control seeks to weed out irregular migrants by means of illegality regimes that make border control and identity verification ubiquitous. Seen from these perspectives geography becomes a malleable thing, rather than a static terrain over which to rule. Finally, section 4 explores the geographical dimensions of a couple of ongoing important developments in technology and governmentality, and reflects on their significance for the law of migration control. In that section in particular I hope to illustrate how territorial or generally geographic narratives may currently be undergoing a shift, even as the story of the besieged territorial state endures. 2. Territory, the State, and Identity 2.1. Historical Contingencies A crucial move to understand the complex intersections of territoriality is to see territory itself as more than a piece of land, more than a colored patch among different colored patches on a map. Rather, territory, as an idea or as a fact, has a long and complicated history. The concept ‘territory’ itself, as we more or less know it now, only emerged in legal and political thinking during the seventeenth century. See generally, Stuart Elden, The Birth of Territory (2013); Stuart Elden, How Should We Do the History of Territory?, 1 Territory, Politics, Governance 37 (2013). Doing a combination of genealogy and conceptual history, Elden describes the multiple intellectual steps and the many centuries of legal and political thinking that it took before the German philosopher Leibniz finally articulated territory as the realm of exclusive sovereign jurisdiction. The automatic conflation between territory and the state that today is taken for granted is in fact a rather recent development, and according to some, already over its peak. Sassen and others taking about‚ deterritorialization (see Elden about those ‘not getting it’) This chapter explores the broad sweeps of these historical contingencies. In particular, it focuses on how the fact of territory, the bounded and demarcated piece of geographical terrain itself, is only accessible by means of (cartographic or geographic) technology. As technology mediates the geographic fact of territory, it produces it as a social, political, and legal fact. The word geography refers to ‘the description of the Earth’, as originally coined by Eratosthenes, Duane W. Roller, Erastothenes’ Geography (2010). and its history is intertwined with the history of cartography and with the developing of the ability to ‘read’ both the physical and the human environment. In the story that ensues, this ability to read, or to make ‘legible’, In this I rely heavily on what Scott calls ‘the project of legibility’; James Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (1998). and the ability to govern by means of statistical and calculative means See generally Michel Foucault, Security, Territory, Population (YEAR), and Michel Foucault, The Birth of Biopolitics (YEAR). For an analysis of this particular dimension in Foucault’s work see Stuart Elden, Governmentality, Calculation, Territory, 25 Environment and Planning D: Society and Space (2007) 562. are prime protagonists. Passing through the point in history at which legal and political thinking conceive of the bounded territory as the realm of sovereignty, and moving fast forward to the development of new technologies that allow for the reading and the making legible, this chapter signals the key feature of this progression, which is to be able to identify who does what, and (of course) where. In the same way that the map produces the territory, technologies of identification produce the identities of those it seeks out. The most common starting point when talking about the contemporary state or state sovereignty is the 1648 Peace of Westphalia, which, among other things, articulated the principle of sovereign equality and non-intervention amongst states. This landmark is an artificial shorthand for describing a much less abrupt series of developments spread out over a much longer period of time. The Myth of 1648 Both legally and politically, ‘the state’ was a radically different thing in the mid-seventeenth century than it is now. Political power was still, and would remain for a long time, very much embedded in a Feudal system of personal allegiances, along a chain of nobility and with a Roman Catholic Church that was still very much in the picture. According to P. Anderson, the political order at the time “was an inextricably superimposed and tangled one, in which different juridical instances were geographically interwoven and stratified, and plural allegiances, asymmetrical suzerainties and anomalous enclaves abounded.” Stéphane Beaulac, The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia 2004, at 72 (quoting P. Anderson, Lineages of the Absolute State 37-38 (1974)). In fact, long after 1648, regions would change their ‘sovereign’ because of marriages, inheritances, or the vicissitudes of lineage; The case of Luxembourg offers a compelling example of this. Luxembourg was ‘thought up’ as part of a the complex diplomatic negotiations during the Congres of Vienna in 1815. The logic of territorial sovereignty dictated that it would fall under the rule of the Netherlands, then and still a monarchy. Instead, it became a Grand-Duchy, autonomous from the Netherlands and even a member of the German Confederation of States, but still a part of the Netherlands under the personal rule of the Dutch King, William I, who became Grand-Duke of Luxembourg. This situation continued until 1890, when his grandson William III died and was succeeded by his daughter Wilhelmina. “A family pact concluded in 1783 between all the lines of the house of Nassau determined that in the event of an extinction of male heirs in one branch, in this case that of the Orange-Nassau, the family possessions would be passed on to the next branch (...), the Nassau-Weilburg.” In this way, Luxembourg became an independent nation state. See http://www.gouvernement.lu/publications/luxembourg/apropos_histoire/ap_histoire_2008_EN.pdf (last accessed 11 August 2013). not to mention that ultimate negation of sovereign equality: conquest and annexation by means of war, which did not see a formal legal end until after World War II. The precise historical moment of transition into the full territoriality that we now take for granted is variedly described, as being “sometimes placed in the seventeenth century, more often associated with the eighteenth century, and often fixed confidently in the nineteenth century.” Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires 1400-1900 (2010) 280. During those three centuries, and way into the twentieth, a sometimes gradual and sometimes jerky development took place on the legal and normative level, roughly speaking in three phases: First, a process in which legal authority and jurisdiction was divided between the Holy Roman Empire and its sub-entities in complex and variegated ways. Anne Orford, Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect, 30 Michigan Journal of International Law (2009) 981. In The Birth of Territory Stuart Elden describes the complicated legal discussions through which scholars struggled with the question of how and where to allocate authority, through the end of the Roman Empire and up to the seventeenth century. See also Kenneth Pennington, The Prince and the Law (1200-1600): Sovereignty and Rights in the Western Legal Tradition (1993). Second, the age of colonial Empires during which legal authority was concentrated in the big European powers and where a dynamic of highly differentiated notions of sovereign authority managed the complex structures of each of the colonial empires. See generally Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (2002) (giving particular attention to the British and Dutch Empires); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires 1400-1900(2010). Ann Stoler, On Degrees of Imperial Sovereignty, 18(1) Public Culture (2006) 125; Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (2007). Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (1870-1960) (2002). Third, a fully territorial model that is based on formal sovereign equality, but in which the question of the precise allocation of legal authority has moved towards the balancing of national and international jurisdiction Generally, Ann Orford, International Authority and the Responsibility to Protect (2011). and in which the colonial legacy still has a formidable footprint. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (2011). If the (legal) history of the territorial dimension of the state poses challenges to rigorous analysis, let alone to those of us who would like to make broad sweeping statements, this does not subside in the more contemporary period, commonly referred to as the era of ‘globalization’. Globalization is a notoriously problematic notion, from a historical perspective (when did it start, what phases exist, etc.?), as well as from a geographical perspective (what is globalization, where does it take place, what exactly takes place, etc.?). From both a geographical and from a historical perspective the notion of globalization is highly problematic, both in terms of when it happened as in terms of what it actually is. For critical overviews, see Andrew Herod, Geographies of Globalization: A Critical Introduction (2009); Adam McKeown, “Periodizing Globalization,” 63(1) History Workshop Journal 218 (2007). But there is broad agreement that much is happening, and that the current status quo has either already changed, E.g. Empire is rapidly changing, E.g. Sassen or will need to change soon in order to deal with the various challenges facing humanity. EXAMPLE? This article subscribes to a narrative of continuous interplay between stable and unstable dynamism, in which our legal and political institutions, and their territoriality, can be seen as an ongoing series of rearrangements of the way actors interact and interrelate, both within borders and across borders. See generally Sassen, supra note 52. Though the embrace of such fluidity goes against the recurring and perhaps unavoidable need or convenience to think in terms of a status quo that at some moment replaced a previous status quo, just as some future status quo will replace this one, this article is an exercise in seeing these processes and transformations and intersections in an organic fashion. Two examples of such an approach in the field of international law are Philip Allott (Health of Nations), and Anne Orford. In this perspective the territoriality of the state is not, and in fact never was, the simple and straightforward ‘container’ of statehood that many have taken it to be, and most continue to do. The idea of the state as “power container” was famously articulated by Anthony Giddens: “the nation-state is a power-container whose administrative purview corresponds exactly to its territorial delimitation.” Anthony Giddens, The Nation-State and Violence 172 (1985). For interesting updates of this concept, see Peter J. Taylor, “The State as Container: Territoriality in the Modern World-System,” in State/Space: A Reader 101 (Neil Brenner et al. eds. 2003); Stuart Elden, Missing the Point : Globalisation , Deterritorialisation and the Space of the World, 30 Transactions of the Institute of British Geographers 8 (2005); Saskia Sassen, When Territory Deborders Territoriality, Territory, Politics, Governance 37 (2013). 2.2. Centralization, Rationalization, & the Production of Identities Linked to the idea of container is the focus on the territorial state as an area of space with external boundaries. Borders give shape to a territory, and a unavoidable dimension of our political socialization is our familiarity with the shape of our country. This shape is ubiquitous in any classroom. Indeed, maps have long had an important political function, projecting a sense of the world as composed of neatly bounded nation states, See James R. Akerman, The Structuring of Political Territory in Early Printed Atlases, 47 Imago Mundi: The International Journal for the History of Cartography (1995) 138, describes how “atlases were mediators in the restructuring of European ideas about political territory which culminated in the emergence (by the end of the eighteenth century) of the territorial state and its progeny, the nation-state.” (p. 138) and in fact reiterating the process of naturalization of the state as a territorial entity. For this reason it is easy to overlook the internal dimension of state territoriality, Geopolitics is generally (self-)perceived to be a discipline that focuses on international relations. This section focuses on the unseen ‘internal’ dimension of geopolitics. a much more complex and important dimension for the understanding of both territoriality and the state. Internally, the territory of the state is more complex than externally. It may be about the identification of important political places (cities, provinces), or locations that acquire geographical significance depending on what you are looking for. It may be connections (roads, rivers, mountains), it may be natural resources (agriculture, forestry, mining), it may be locations of military importance, etc. While the external dimension of territory is entirely flat (a state here, a state there), the internal dimension of territory is essentially differentiated, with dense places and empty spaces, with important and unimportant places. One exception to this would be a ‘political’ map of a country, usually the term used to describe the internal geopolitical organization of the state: the states, or departments, or provinces, or municipalities. This map will point to a administrative and/or jurisdictional subdivision of the state. Historically, the role of external boundaries was not only important in terms of establishing sovereignty in competition with other national sovereigns, but in terms of establishing a more centralized sovereign authority. Michael Mann, “The Autonomous Power of the State: Its Origins, Mechanisms and Results,” in State/Space: A Reader 53 (Neil Brenner et al. 2003). This centralization of political power happened at the expense the authority of sub-national or more local lords, barons, cities or communities. Whereas the old Feudal king could expect tributes and soldiers from the local barons and counts, the new Prince was interested in governing directly. One way of achieving this objective was to centralize not just political power, garnering the authority to create and change sub-national territorial entities, Richard Thompson Ford, “Law’s Territory (A History of Jurisdiction),” 97 Michigan Law Review 843-930 (1999). but also by means of what James Scott has referred to as ‘the project of legibility’. Scott The project of legibility involved enhancing the bureaucratic machinery that would have the capacity to collect and analyze information from all over the state, to map the human geography: “[E]arly modern European statecraft seemed (...) devoted to rationalizing and standardizing what was a social hieroglyph into a legible and administratively more convenient format. The social simplifications thus introduced not only permitted a more finely tuned system of taxation and conscription but also greatly enhanced state capacity. (...) These state simplifications, the basic givens of modern statecraft, were (...) rather like abridged maps. They did not successfully represent the actual activity of the society they depicted, nor were they intended to; they represented only that slice of it that interested the official observer. They were, moreover, not just maps. Rather, they were maps that, when allied with state power, would enable much of the reality they depicted to be remade. Thus a state cadastral map created to designate taxable property-holders does not merely describe a system of land tenure; it creates such a system through its ability to give its categories the force of law.” Id. at 3. An important example of this identifying move is the creation of surnames, Scott, supra note 66, at 64-71. by which states strongly enhanced their capacity to trace who was doing what and where. Modern administration or logistics, public or private, seems unthinkable without the particular technology of the surname. The project of citizen legibility, which was part of the project of the legibility of society, allowed states to ‘see’ or ‘read’ what was happening ‘on the ground’, in their territory. In other words, it allowed centralizing states to ground their rule, to territorialize it more directly. For this purpose, it was necessary to replace local knowledge by national knowledge. Harmonization served centralization: “Indirect rule required only a minimal state apparatus but rested on local elites and communities who had an interest in withholding resources and knowledge from the center. Direct rule sparked widespread resistance and necessitated negotiations that often limited the center's power, but for the first time, it allowed state officials direct knowledge of and access to a previously opaque society.” Id. at 77. In this way, the state could fulfill not only its less pleasant functions, such as taxation and conscription, but also its more benevolent ones, such as upholding rights and claims to welfare. For this purpose, physical maps fulfilled a central role. Historically, the process of centralizing authority took place in the 18th and 19th Centuries. Before that, the technologies of mapping had taken enormous flight in the age of exploration. Cartography in general became an indispensable tool for European states in the process of subjugating the rest of the world. See generally Benton, supra note 55. Benton beautifully describes the interwoven connections between the legal and geographical imaginations, as European discoverers, adventurers, settlers, and traders ventured into legally and geographically unchartered areas. This process was not unrelated to the further development and modernization of the centralized post-Feudal home state itself. Sassen describes how in the early phase of colonization (1600-1800) the state, often in the person of the Prince, was the only actor who could effectively control these expeditions, and how out of the spoils of this phase of pillaging, the central authority of the state grew. Sassen, supra note 52, at 74-140. This was accompanied by an increase in the interactions between European nations, both in terms of trade and diplomacy, as in terms of a colonialist competition. Both these phenomena reinforced each other in the development of the two characteristics of what would later become the modern ‘Westphalian’ state: a clear outer perimeter with strong centralized control. Here too, in the development of the modern, territorially centralized, and clearly circumscribed European state, the geographical technology of cartography played an essential role. This technology became increasingly sophisticated and institutionalized in ways that were connected to the military, taxation, or census parts of the state. Mapping became not just about the territory, but about everything that happened on it, and about being able to know and control it, even as geographical technologies were increasingly presented as neutral and scientific. “When cartography and the state bureaucratic structure had become established as official institutions, the first scientific and the latter administrative in nature, surveying and exploration became ways of localizing thematic information. Consequently, from that time onwards, 'mapping' no longer meant inventing geography and producing a territory. From the latter decades of the nineteenth century onwards neutralization of cartographic representation and naturalization of the geographic shape of the state allowed geography to take its place as an autonomous scientific discipline.” Marcelo Escolar, “Exploration, Cartography and the Modernization of State Power,” in State/Space: A Reader 29, 50 (Neil Brenner et al. eds. 2003). In his lectures on the history of what can be called the state, but what he referred to as the rationales of government, governmental reason, or the history of governmentality, Michel Foucault has referred to the development of the modern state in the 17th and 18th century as one that involved a shift of focus away from the citizen towards the aggregate, that of population: See generally Michel Foucault, Security, Territory, Population (YEAR), and Michel Foucault, The Birth of Biopolitics (YEAR). For an analysis of this particular dimension in Foucault’s work see Stuart Elden, Governmentality, Calculation, Territory, 25 Environment and Planning D: Society and Space (2007) 562. “the genesis of a political knowledge that was to place at the centre of its concerns the notion of population and the mechanisms capable of ensuring its regulation.” Michel Foucault, Ethics: The Essential Works of Michel Foucault (1954-1984) Volume 1, (Ed. Paul Rabinow), 1997, 67. An essential ‘mechanism’ that will allow regulation are the administrative apparatuses that will be able to measure population, “For them [the physiocrats of the 18th century], the population is not simply the sum of subjects who inhabit a territory, a sum that would be the result of each person’s desire to have children or of laws that would promote or discourage births–it is a variable dependent on a number of factors. These are not all natural by any means (the tax system, the activity of circulation, and the distribution of profit are essential determinants of the population rate). But this dependence can be rationally analyzed, in such a way that the population appears as ‘naturally’ dependent on multiple factors that may be artificially alterable. So there begins to appear, branching off from the technology of ‘policy’ and in correlation with the birth of economic thought, the political problem of population. The latter is not conceived as a collection of legal subjects, nor as a mass of human arms intended for labor; it is analyzed as a set of elements that [...] may offer a purchase for concerted interventions (through laws, but also through changes of attitude, of ways of acting and living that can be obtained through ‘campaigns’).” Ibid. p. 69-70. its mass, its density, its volume, and that will allow for a rationalization of government policies; it is statistics. The political geographer Stuart Elden has described this emphasis by Foucault as one on ‘the politics of calculation’, The better known Foucauldian notion of biopolitics has been described by Foucault himself along similar lines: “the endeavor, begun in the eighteenth century, to rationalize the problems presented to governmental practice by the phenomena characteristic of a group of living human beings constituted as a population: health, sanitation, birthrate, longevity, race... ” ibid. at 73. and has stressed its geographical dimension: “Territory is more than merely land, but a rendering of the emergent concept of `space' as a political category: owned, distributed, mapped, calculated, bordered, and controlled.” Stuart Elden, Governmentality, Calculation, Territory, 25 Environment and Planning D: Society and Space (2007) 562. See also Alfred Crosby, The Measure of Reality: Quantification and Western Society 1250-1600 (1997), who describes the shift in this period from qualitative to quantitative description. In short, rather than the space over which there is sovereign authority, territory is an instrument, a technology for the governing of people. 2.3. Controlling Mobility & the Territorialization of Identity In this process of categorizing that which sovereign administrations wanted to measure, the control of mobility is a special case that has its own history. During feudal times pilgrims and diplomatic messengers carried passes or insignia, or were otherwise recognizable by means of their dress. See generally Valentin Groebner, Describing the Person, Reading the Signs in Late Medieval and Renaissance Europe: Identity Papers, Vested Figures, and the Limits of Identification, 1400-1600, in Jane Caplan & John Torpey (eds.), Documenting Individual Identity: The Development of State Practices in the Modern World (2001) 15. Groebner describes how with the increased use of various means and instruments of identification came practices of falsification and fraud. This cat and mouse game has spurred technological development and continues. With the growth of more ambitious state formations, identification requirements were standardized and extended to the general population so that the state could increase the legibility of its citizens. Torpey calls this the state’s ‘embrace’ or the grasping or registering, of its citizens, John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State (2000). and I have already mentioned how a part of this identifying move is the creation of surnames. Scott, supra note 66, at 64-71. To begin with, though international migration has only relatively recently become a concern of states, the broader notion of mobility has a long history of interacting with the powers that be. Adam McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (2008). The history of mobility control is complex, with control taking diverse shapes at various times in history. In the Feudal order serfs needed a written permit indicating that they had permission to travel and the poor in general were constantly required to identify themselves. After the French Revolution such permits were abolished as a symbol of the repressive Ancien Regime. However, a concern with vagrancy soon developed, and the state started monitoring mobility again, issuing and requiring IDs and other types of official documents. Later, this practice would spread to other countries, Torpey. but the crucial dimension was the expansion of identification requirements to all citizens: “The putatively universalist Enlightenment state gave up the selective outward identification of individuals and groups (e.g., marks on the body, sumptuary laws regulating dress) only by simultaneously asserting a newly comprehensive right of surveillance and identification that applied to all citizens.” Jane Caplan & John Torpey, Introduction, in Jane Caplan & John Torpey (eds.), Documenting Individual Identity: The Development of State Practices in the Modern World (2001) 8. For sure, there is a high degree of variability, and in the same collection Jon Agar describes how for example the British have so far avoided this requirement, but the broader trend led to the later introduction of the passport, the near universal requisite for international travel. Jon Agar, Modern Horrors: British Identity and Identity Cards, in Caplan & Torpey (eds.), 101 For a long time, states were more concerned with controlling exit rather than entry, as they feared their subjects would defect and join some alien power. In the course of the 19th century, as states managed to effectively centralize their sovereign rule and the state started to resemble the modern bureaucratic machine, the idea of freedom of movement became stronger, and international immigration was in fact encouraged. However, the turnaround came when the United States started to limit the immigration of Chinese citizens. McEwon For reasons that were presented as relating to ‘degree of civilization’ (or lack thereof), a complex set of migration controls were imposed that would eventually spread and become the norm for states around the world. In fact, many of the forms of migration control that were developed during that period are similar to the ones used today. Among this are the role of consular offices, the so-called ‘remote control’, and the delegation of migration controls to private carriers. Specific limitations due to race or ethnicity have of course been hidden, not behind the too-obvious category of ‘civilization’, but perhaps behind other categories that can lay a successful claim to neutrality, such as ‘skills’. However, see van Houtum H, 2010, "Human blacklisting: the global apartheid of the EU’s external border regime" Environment and Planning D: Society and Space 28(6) 957 – 976. The policy objective of surveying and controlling the mobility of migrants thus lead first to the generalization of identification requirements, which together with the centralization and rationalization processes described above, led to the production of increasingly national identities. However, this process would speed up once international travel became the subject of control. In the words of McKeown: “Identities applied at borders have become an indispensable aspect of political action in a world divided between nations. As late as the mid-nineteenth century, citizenship still marked a membership in a certain kind of political community. A person could still be a subject, serf, slave, kinsman, townsman, tribe member, or member of an “uncivilized” nation incapable of self-government. Status applied during movement across borders was completely irrelevant beyond a particular journey. By the middle of the twentieth century, however, almost everybody in the world had become a “citizen,” now understood loosely as a member of some particular nation.” McKeown, supra note 59, at 354-355. In other words, by the middle of twentieth century, the international system of centralized states with centrally controlled identities—not just national but territorial identities—was complete. A lot could be said about the homogenizing function of the centralization of territorial authority. See Charles Tilly, Coercion, Capital, and the European States, A.D. 990-1992 100 (1992); Nicos Poulantzas, “The Nation,” in State/Space: A Reader 65 (Neil Brenner ed. 2003) (analyzing the construction of the nation by the modern state, and seeing in that process the conditions, ultimately, for the ethnic cleansings and genocides of the 20th Century); Ford, supra note 54 (affirming the homogenizing function of the territorial centralization of authority, although also indicating how this goes hand in hand with the creation of differences). Of fundamental importance is the understanding that neither territory nor individuals are merely passive objects of legibility; rather, they are legally, socially, politically, and culturally constituted by the acts that make them legible. 3. Contemporary Migration Law's Territorialities 3.1. Introduction This section concerns itself with the question of how migration law intersects with the territoriality of the state. Already at first sight it seems clear that migration law is one of the legal regimes that is meant to police the integrity of the state. The image that is probably the first to come to mind is that of the checkpoint in an international airport. Migration law stipulates who can enter without permission and who needs to acquire prior approval for entry. It sets out the various conditions under which this approval can be granted and the procedures required for a decision to be taken. Finally, migration law specifies the conditions under which entry is allowed, thereby limiting what an entrant can do within the territory of the state, and for how long. Migration law is enforced through the threat of forceful eviction, sometimes coupled with administrative detention or even criminalization. The purpose of this migration control system is to keep the borders intact, and to allow states to exercise their territorial sovereignty. In other words, migration law in this view is all about maintaining the divide between the territorial inside and outside of the state. In this as in other areas, international law has limited the sovereign abilities of states by specifying how they can uphold this barrier between in- and outside. With the rise of international trade and investment law, sovereign boundaries have become increasingly porous with respect to the movement of goods, capital, and to a lesser extent services. The movement of people, however, generally remains bound to the whims of sovereign disposition. In fact, over the past few decades, migration has become an increasingly sensitive topic in many national constituencies, especially in immigration countries. The UN Department of Economic and Social Affairs estimates that the total number of international migrants has increased from 178 million in 2000 to 214 million in 2010, such that today about 3.1 percent of the global population are international migrants. United Nations Department of Economic and Social Affairs, Trends in International Migrant Stock: The 2008 Revision, http://esa.un.org/migration/index.asp?panel=1. Over the next forty years, the UN predicts that the major countries of destination for international migrants, in order of significance, are projected to be the United States, Canada, the United Kingdom, Spain, Italy, Germany, Australia, and France. The major countries of origin, in order of importance, are projected to be Mexico, China, India, the Philippines, Pakistan, Indonesia and Bangladesh. United Nations Department of Economic and Social Affiars, World Population Policies 2009 32 (2009). Governments are under a lot of pressure to limit immigration, to deal with the onslaught of asylum seekers, and to protect a social cohesion seen as being at risk because of the presence of large numbers of immigrants. As migration has risen on the political agendas of many countries, so has the amount of resources allocated to the strengthening of migration regimes. Irregular immigration, in particular, is perceived as a real problem that must not be ignored and that justifies draconian measures. Despite strict immigration policies, however, the number of international migrants keeps rising. Migration law is by no means solely focused on the physical borders of states. Rather, it reaches both beyond and within national borders, extending instances of migration control far into non-national territories and deep into the heart of the national territory. Seen this way, the distinction between the in- and outside of the state that seems so central to migration law becomes increasingly problematic. On the inadequacy of the conventional inside/outside model, see also Etienne Balibar, “The Borders of Europe,” in Cosmopolitics: Thinking and Feeling Beyond the Nation 216, 217 (P. Cheah & B. Robbins eds., J. Swenson trans., 1998) (“We are living in a conjecture of the vacillation of borders—both of their layout and function—that is at the same time a vacillation of the very notion of the border, which has become particularly equivocal.”); Elspeth Guild, Danger: Borders Under Construction: Assessing the First Five Years of Border Policy in an Area of Freedom, Security and Justice 1 (2005) (“In both law and practice the border for the movement of persons to and within Europe is no longer consistent with the edges of the physical territory of the member-states.”). 3.2. Outwardly Extending the Reach of Migration Law With respect to regular migration, the primary sources of external limitation and control are visa requirements and dissuasion, performed by means of bureaucratic requirements, consular control, and pre-flight checks. The moment an individual begins to think about migrating to another country, she becomes the subject of its migration laws. To begin with, most states have visa policies that indicate the conditions and requirements for obtaining permission to enter the country. These may involve fairly intrusive action; either in the types of documents and information that are required, or in the types of questions that a visa applicant can be subjected to. Required information can include details regarding an applicant’s health (“are you HIV-positive?”), income, property, criminal record, taxes, savings, and familial relations, among others. The US Nonimmigrant Visa Application form DS-160, for example, requires applicants to disclose, among other information, the name of the party paying for their trip, their history of travel to the US, their marital status, the names and birthdates of parents, their occupation, monthly salary, whether they “have a communicable disease of public health significance” or “mental or physical disorder that poses or is likely to pose a significant threat to the safety or welfare of yourself or others,” whether they are or have ever been “a drug abuser or addict,” as well as a series of questions relating to criminal history, and participation in prostitution, money laundering, terrorism, genocide, torture, extrajudicial killings, and suppressing religious freedom. US Nonimmigrant Visa Application Form DS-160. Some states go so far as to collect biometric data such as facial images, fingerprints and retinal scans. The EU’s Visa Code, for example, requires that: “Member States shall collect biometric identifiers comprising the facial image and 10 fingerprints from the applicant (…) .” Community Code on Visas, Regulation 3625/09, Article 13. Very often this requires sharing information that in other contexts would otherwise be protected by privacy rules, both in the state where the applicant is from as in the state where the applicant is intending to go. Migration laws can, in this and other ways, cut through jurisdictional boundaries by virtue of the pure necessity that potential migrants have. The potential sanction for noncompliance is very real: denied access. The organization of visa decision-making can be quite elaborate. Indeed, it could even be seen as a form of extraterritorial governance, and not just because of the intrusive nature of many visa requirements. In order to deal with the large numbers of visa applications, while also making the process of selection more rigorous and the admission in general more selective, states have developed increasingly complex logistical approaches to the visa administration process. Rationalization and efficiency are key notions here, and often the potential migrants pay fees as well, so that the whole system finances itself. The result is that obtaining a visa can require applicants to collect maddening amounts of documentation. Applicants begin lining up at consulates in the country of origin. Communication with authorities is increasingly only done in writing, perhaps culminating in one crucial face-to-face encounter, booked months in advance. Migrating is an increasingly bureaucratic experience, and the bureaucracy is increasingly corporate in its drive to control budgets and processes. Reference to Jill’s work. One corollary of this is that consulates in the countries of origin become more important. As Espeth Guild has remarked, “[t]he border for movement of an individual is the place where a control takes place which is constitutive of whether the individual can pass or not.” Elspeth Guild, “The Border Abroad—Visas and Border Controls,” in In Search of Europe’s Borders 87 (Kees Groenendijk, Elspeth Guild, & Paul Minderhoud eds. 2003). In a sense, therefore, the border of the destination state begins behind the applicant’s computer or phone, from the moment that she moves to acquire information, on to the moment that she files the actual application, long before she actually meets the first consular agent. Many embassies have moved to outsource as much as possible of the visa application process to private specialized companies. There is a company called VSF Global, for example, on whose website (http://www.vfsglobal.com) one can find fascinating information, including a counter showing the number of processed visa applications since its establishment in 2001. At the time of writing the counter was almost 65 million. The website also has a counter indicating the number of ‘client governments’ (44), ‘countries of operation’ (89), and ‘visa application centres’ (908). (Last accessed 28 July 2013) Consulates of popular immigration states in emigration countries are often surrounded by a whole industry of migration service providers, from brokers to lawyers, as well as a black market of forgers and other irregular services. In this sense, the extraterritorial bureaucracy imposed on would-be migrants creates jobs. The economic logic of the free international trade (or mobility) of goods may argue in favor of reducing these international mobility-costs by eliminating obstacles to migration. However, the barriers imposed by mercantilist measures, designed to make international mobility more expensive, and thus reduce it, are also a source of income. In another private line of extraterritorial control, airlines are legally obligated to check the identity and travel documents of passengers, and in some cases to submit Advance Passenger Information (API) to border control authorities in advance of travel. The US system, known as Secure Flight, was implemented by the Transportation Security Administration in December 2008. See Transportation Security Administration, “Secure Flight Program,” www.tsa.gov/what_we_do/layers/secureflight/. The UK system is known as e-Borders. See UK Border Agency, “Advance Information on Passengers,” www.ukba.homeoffice.gov.uk/customs-travel/beforetravel/advanceinfopassengers/. As regular migration is discouraged or becomes more and more difficult, irregular migration becomes an increasing concern. It is difficult to say exactly whether and especially to what extent irregular migration is a “real” problem. For one, irregular migration is notoriously difficult to quantify. See Douglas Massey & Chiara Capoferro, “Measuring Undocumented Migration,” in Rethinking Migration: New Theoretical and Empirical Perspectives 257-284 (Alejandro Portes & Josh DeWind eds. 2007). This makes it possible both to imagine veritable invasions of irregular immigrants and to underplay the seriousness of the issue. Secondly, for all the political importance of migration-related topics, there is no consensus on whether and to what extent irregular immigrants action threaten any of the goods that migration control is said to protect: social cohesion and cultural identity, on the one hand, and economic welfare on the other. For every argument that these goods are threatened by immigration, there is an argument about how the receiving state will benefit—in terms of culture, cohesion, and economic welfare—from this fresh influx of people. With respect to social or cultural cohesion, immigration pits cosmopolitans, with their faith in the unity of humanity, against communitarians, who believe that national communities are a requirement for liberal democracy. Compare David Miller, On Nationality (1995) (worrying that the presence of foreigners will put social democracy at risk because it requires a unity of community and purpose); with Joseph Carens, “Aliens and Citizens: The Case for Open Borders,” 49 Review of Politics 251, 252 (1987) (“Citizenship in Western liberal democracies is the modern equivalent to feudal privilege—an inherited status that greatly enhances one’s life chances. Like feudal birthrights privileges, restrictive citizenship is hard to justify when one thinks about it closely.”). On the economic side, immigration pits free-market enthusiasts who see it as increasing the labor supply in response to demand and a welcome economic stimulus against those concerned with protecting national workers and markets. Compare Peter Brimelow, Alien Nation: Common Sense About America’s Immigration Disaster 137-177 (1995) (arguing that immigration increases economic inequality and lowers welfare); with Lant Pritchett, Let Their People Come: Breaking the Gridlock on Global Labor Mobility (2006) (arguing that immigration will increase global economic welfare). Even if one recognizes that immigration states have a right to control immigration and deny access to people seeking entry, there is never a clear sense that cohesion, identity, or economic welfare are under threat at any particular moment, or due to the entry of a particular (group of) person(s), either in the short or long term. All this uncertainty and plurality of opinions, however, does not preclude a proliferation of policies to stop irregular immigration, or to prevent people from entering the state’s (territorial) jurisdiction in search of asylum. It may seem strange to speak of irregular migration and asylum simultaneously. However, in many respects state policies toward these two groups—at least until the moment that asylum is granted—are one and the same. Asylum seekers often avoid the regular consular channels, sometimes for reasons of prudence, in order to avoid the danger of being caught trying to get out of the country; sometimes for reasons of practicality, because there might not be a nearby consular office; and sometimes for reasons of strategy, in the sense that it may seem safer to go to the country of choice and present a claim to asylum there, rather than at a consular office. As Richard Black writes, “[i]n most European countries, for example, a combination of pre-border controls—including visa requirements, carrier sanctions and readmission agreements with ‘safe third countries’—make false documents and an obscure route of entry almost a requirement for would-be asylum seekers.” Richard Black, “Breaking the Convention: Researching the ‘Illegal’ Migration of Refugees to Europe,” Antipode 34, 36 (2003); See also J. Morrison, The Cost of Survival: The Trafficking of Refugees to the UK (1998). In this way, asylum seekers often end up using the same channels as irregular migrants. Because of this confluence, immigration states deploy similar extraterritorial strategies against both these groups. To begin with, and as will be discussed in next section’s overview of the various measures taken inside the territorial jurisdiction of immigration states, one of the objectives of migration policy is to dissuade future (irregular) immigrants not just from entering a country’s territory, but from even considering it. In this way, immigration states attempt to extend their regulatory footprints far beyond their territories, and into the complex of considerations and cost-benefit analyses of potential migrants. Another mechanism of extraterritorial control is the imposition of carrier sanctions. Already in the 1980s some European states were imposing carrier sanctions on airlines that brought in irregular migrants. According to Erika Feller, this was due to the fact that increasing numbers of people would arrive without proper visas, and with an unsustainable claim to asylum. See Erika Feller, “Carrier Sanctions and International Law,” 1(1) International Journal of Refugee Law 48, 48-50 (1989). It is exactly the confluence of asylum seekers and irregular migrants that led to the imposition of the early carrier sanction programs. Carriers would be obliged to pay for the expenses of returning the failed migrants, and could receive an additional fine on top of that. The basic idea is not new: even in the time of the Titanic the United States required shipping companies to carry ‘passenger manifests’ loaded with information pertinent to the selection criteria of the time. According to one fascinating description: Under U.S. law, ships were responsible for ensuring that all non-U.S. citizens arriving in a U.S. port of entry (such as New York City) were admissible under U.S. law. If they were not, the passenger could be excluded from entering the U.S., the ship company could be fined and then required to take the person back at its own expense. (...) To protect themselves, ship companies completed immigration forms using information provided by passengers as they purchased their tickets, and on the forms recorded answers to “a long list of questions taken from immigration law. Alien passenger records contained their name, age, sex, marital status, occupation, nationality, last permanent residence, destination, names and addresses of friends or relatives at both the past permanent residence and destination, place of birth, and answers to legal questions such as ‘Are you a polygamist?’ These documents, the passenger manifests, were then certified by a U.S. Consul prior to embarkation from the foreign port and delivered to U.S. immigration authorities upon arrival.” US Citizenship and Immigration Services, “Immigration Laws in 1912—Titanic,” available at http://www.titanic-nautical.com/RMS-Titanic-Immigration.html (last accessed 15 May 2012) (quoting Marian L. Smith, “The RMS Titanic Passenger Manifest: Record of Survivors—and Revival of a Record,” 29 Voyage Quarterly (the Journal of the Titanic International Society) 4-9 (1999)). Incidentally, “Due to the tragic circumstances surrounding Titanic survivors' arrival, the Government made no attempt to punish the Cunard line for incomplete or erroneous information on the manifest. In fact, the Immigration Service's New York Port Commissioner William Williams congratulated the Cunard company for the Purser's efforts to record all survivors, an action that facilitated their admission to the United States.” Id. See also A. Zolberg “The Archaeology of ‘Remote Control’,” in Migration Control in the North Atlantic World: the Evolution of State Practices in Europe and the US from the French Revolution to the Inter-war Period 195–222 (A. Fahrmeir et al. eds. 2003). What makes this regulatory technique particularly interesting, or problematic, is the fact that it combines extraterritoriality with outsourcing to a private actor who could, additionally, be a foreign actor. The regulatory reach of the immigration state thus ends up governing the interactions between foreign non-state actors abroad. This raises all sorts of legal questions. See generally Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Contol (2009); Maarten den Heijer, Europe and Extraterritorial Asylum (2012). One particularly interesting problem is the fact that the Refugee Convention of 1951 would seem to require one's absence from one's country at the time of requesting asylum. Gammeltoft-Hansen, supra note 15, at 83-84. If this is true, then carrier sanctions, and the various regulatory effects that arise therefrom, further contribute to the discouragement of would be asylum seekers. Despite these difficulties, carrier sanctions have continued to develop and have become part of a more elaborate system of migration control beyond the border. In order to facilitate the carrier sanctions system, a number of European states have begun posting so-called Immigration Liaison Officers (ILOs) at the check-in desks in foreign airports. These ILOs are responsible for collecting information regarding migration flows and entry requirements and giving advice to airline staff, and sometimes also prevent those without appropriate documents from boarding aircraft. An EU-wide Immigration Liaison Officers’ network was established in 2004. The ILOs are intended to “establish and maintain contacts with the authorities of the host country with a view to contributing to the prevention and combating of illegal immigration, the return of illegal immigrants and the management of legal migration.” Creation of an Immigration Liaison Officers Network, Council Regulation 377/2004, OJ L 316, Art. 1(1). On the controversy regarding ILOs directly or indirectly preventing access to air travel, see A. Brouwer & J. Kumin, “Interception and Asylum: When Migration Control and Human Rights Collide,” 21 Refuge: Canada’s Periodical on Refugees (2003); S. Taylor, “Offshore Barriers to Asylum-Seeker Movement: The Exercise of Power Without Responsibility?” in Forced Migration, Human Rights and Security (J. McAdam ed. 2008). Perhaps the most concrete example of the extraterritorial reach of migration law is the establishment of actual border control stations outside of the territory of the regulating state. In Europe, the external boundaries of the Schengen area are regulated under the Schengen Borders Code (SBC). EC 562/2006 The SBC includes a specific registry of official border crossings. Interestingly, however, these points do not necessarily have to be located at the physical border of a country in the Schengen zone, but may also be located either within the territory (for example at international airports), or outside of the territory (for example at international train stations such as Ashford International railway station in Kent, and London Waterloo and St. Pancras stations). Den Heijer, supra note 15, at 195. By this legal construction, individuals who traverse one of these external border control points are considered to have crossed the external Schengen border, despite the fact that they are physically not yet on Schengen territory. Interestingly, this can create a situation in which a traveler falls outside the territorial jurisdiction of a state, even though for the purposes of migration law, she has already entered it. See European Court of Human Rights, Amuur v. France, no 19776/92 of 25 June 1996. A similar example can be found in the practice of “preclearance” at Canadian airports, whereby travelers can go through US border control before actually leaving Canadian territorial jurisdiction. For this reason flights from Canada can arrive in the US as internal flights. See Harry H. Hiller, “Airports as Borderlands: American Preclearance and Transitional Spaces in Canada,” 25.3 & 4 Journal of Borderlands Studies 19 (2010). The US has similar preclearance agreements with Bermuda, the Bahamas, Aruba, and Ireland. Id. at 22. Agreements with transit countries are another form of international cooperation to enforce migration law extraterritorially. These agreements effectively open up significant parts of the foreign territory to migration control activities. The EU Member States, in particular, have pushed this type of agreement quite far, developing elaborate cooperation regimes with third states to protect European borders. For example, the EU cooperates with the Ukraine to police the border between the Ukraine and Russia; Ivaylo Gatev, “Very Remote Control: Policing the Outer Perimeter of the Eastern Neighbourhood,” in The External Dimension of EU Justice and Home Affairs: Governance, Neighbours, Security (Thierry Balzacq ed., 2009). and Italy and Libya, as well as Spain and Morocco, have a history of collaborating on joint naval patrols. Hein de Haas, “The Myth of Invasion: the Inconvenient Realities of African Migration to Europe,” 29(7) Third World Quarterly 1305, 1309 (2008). More significantly, in 2004, the EU established the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), which has as one of its three main functions the planning, coordination, implementation and evaluation of joint operations conducted using member states’ staff and equipment at the external borders (sea, land and air). Council Regulation EC 2007/2004, OJ L 249, 25 Nov. 2004. Frontex and other types of international migration collaborations have been heavily criticized as gambits for avoiding (legal) accountability, particularly in relation to international refugee law and international human rights law. See, e.g., Efthymios Papastavridis, “ ‘Fortress Europe’ and FRONTEX: Within or Without International Law?” 79 Nordic Journal of International Law 75 (2010) (noting the problematic nature of interception operations in light of international human rights and refugee law). Regardless of the legality or legitimacy of these strategies, however, they demonstrate the ways in which states make instrumental use of territory, whether as gambit or as acceptable solution to a problem. Territory here clearly functions as technique. Whether unilaterally, bilaterally, or multilaterally, states have begun to play with geography to serve the goal of immigration control. One of the most discussed elements in this type of geo-jurisdictional approach is the interception of irregular migrants and would be asylum seekers at sea. A recent decision of the European Court of Human Rights illustrates well the controversies that can arise from this type of territorial play. In the case of Hirsi Jamaa and others, the Court found unanimously that Italy had violated three Articles of the European Convention of Human Rights (ECHR). (Application no. 27765/09); Judgment of 23 February 2012. The applicants in the case were 11 Somalis and 13 Eritreans who had been intercepted by the Italian coastguard in May 2009 when trying to cross the Mediterranean. The 24 individuals were brought to Tripoli in Libya and handed over to the Libyan authorities under an Italy-Libya agreement. Their identities were not checked during their time on board the Italian vessels. First, the Grand Chamber had to decide whether the applicants fell within Italy's jurisdiction (Article 1 ECHR). Italy denied that by taking them on board it had exercised “absolute and exclusive control” over the applicants. Rather, it argued that it had been obliged under the UN Convention on the Law of the Sea to save human lives on the high seas. This in itself, in Italy's view, did not create a jurisdictional link between Italy and the rescued. The Grand Chamber disagreed. First, it confirmed that under the law of the sea, and under Italian law for that matter, a ship on the high seas is under the exclusive jurisdiction of the flag state. Secondly, states cannot avoid being held responsible under the ECHR by framing an act as a rescue operation under the law of the sea. Thirdly, the events took place on vessels of Italy's armed forces manned by a crew of Italian military personnel. The applicants were thus under continuous and exclusive de jure and de facto control of Italy. Thus, they fell within Italian jurisdiction for the whole period that they found themselves onboard Italian vessels. One could say here that a causal legal chain of events starts to operate once a ship operated by a state party's authorities catches sight of a group of people in danger at sea: the law of the sea requires the authorities to save them and as a result the endangered people are brought within the jurisdiction of that state under the ECHR. Put differently, attempting to push back irregular migration at sea rather than on land does not absolve a state of its human rights responsibilities. This settled the preliminary phase of the case, after which the Court went on to find a number of specific violations of the ECHR. See generally on this topic: Matteo Tondini, The Legality of Intercepting Boat People Under Search and Rescue and Border Control Operations with Reference to Recent Italian Interventions in the Mediterranean Sea and the Ecthr Decision in the Hirsi Case (April 30, 2012), 18(1) Journal of International Maritime Law (2012) 59. Available at SSRN: http://ssrn.com/abstract=2096156 The cooperation between Italy and Libya at issue in Hirsi Jamaa—though not a unique case—is on the rather extreme end of the spectrum in terms of the manipulation of territoriality during interceptions at sea. More common are more subtle and sophisticated means of geographical play. Spanish ships off the coast of Senegal, for instance, have Senegalese officials on board. See Gammeltoft-Hansen, supra note 15, at 138. Without participation of Spanish officials, the Senegalese commence with the gathering of information, while the ship goes to the shore. Once in Senegal, any asylum claims are processed in detention centers financed by Spain, but under Senegalese jurisdiction. This so-called external processing of asylum claims is also performed in Cape Verde Agreement between the Kingdom of Spain and the Republic of Cape Verde on Monitoring Joint Maritime Areas Under the Sovereignty and Jurisdiction of Cape Verde, done at Praia, 21 February 2008. and elsewhere. Perhaps the most ingenious of these external-processing schemes was conjured up recently in Australia, where, as part of a proposed ‘Malaysian Solution’ to the problem of unwanted migration, Australia would send (South Asian) boat people to Malaysia for processing in exchange for accepting refugees who had already been processed by Malaysia. See Sasha Lowes, “The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the ‘Malaysian Solution’ Case,” 12(1) Human Rights Law Review 168 (2012). What is striking here is the clumsiness, almost the despair, of this proposed and later abandoned arrangement. If this was a solution, what was the exact problem? Both problem and solution were in any case of a territorial nature, and being able to deploy territory strategically, in complex ways, offered the promise of success in the game of geo-jurisdiction. This brings us to the last in the list of various geo-jurisdictional performances: excision of territory or internal withdrawing. Here, the basic principle is almost ubiquitous, even if some states use it more than others. Anybody who steps out of an airplane after an international flight knows that, even though the plane has actually landed on the soil of the state, and even though one may be walking inside a building on the territory of the receiving state, that one has not yet ‘entered’ the country, for the purposes of migration law. This geo-jurisdictional device illustrates how territorial jurisdiction is pliable in sometimes surprising ways. The U.S. has Guantanamo, where it ‘dealt with’ the asylum claims of hundreds of Haitians in the 1990s. Australia has its Christmas Island. Italy has its Lampedusa. But, generally speaking, many states use this device in one way or another. For instance with regard to Guantanamo see: Boumediene v. Bush, 128 S Ct. 2229, 2253 (2008) & Haiti too: Sale v. Haitian Center Council, 509 U.S. 155 (1993). Also Longa XXX Scholars have talked about ‘remote control’, or about ‘immigration prevention’. Others have deployed more sophisticated vocabulary, such as ‘externalised borders’, or ‘diffuse borders’, or even ‘delocalized borders’. Mark Salter has framed the concept of ‘delocalized borders’, in particular, in a particularly fascinating way: “The border is not just a line, but a network of POE (ports of entry) that accommodate the global transportation grid. It is better to speak of the ‘border function’ than of lines in the sand.” Mark Salter, “Passports, Mobility, and Security: How Smart Can the Border Be?” 5 International Studies Perspectives 71, 80 (2004). What then, would this ‘border function’ be? What does it do? On the face of it, it would demarcate the inside and outside of the territory of a state. So even if it is not a line in the sand, it is very much related to that line. The ports of entry are in fact representations of that line, even if they may be scattered about on the map a bit; they can still be seen as a line, as places with that ‘border function’. However, as I will describe in the next section, while there may be an outside, scattered and spotted with ports of entry of all sorts, there may not be any real and definite inside in the contemporary territoriality of migration law. 3.3. Illegality regimes: within the territory, the border is everywhere, and for everyone All the above-mentioned extra-territorial efforts are put in place for the purpose of guarding and guaranteeing the territorial integrity of the contemporary state. In the last couple of decades, and especially in the wake of 9/11, irregular immigration has been considered a security hazard, as well as a threat to social cohesion, identity and economic welfare. This has resulted in the development and deployment of numerous border-enforcement strategies of an explicitly military character. The most visible of these is the project of building fences or walls along the border. Both the United States and Israel have famously adopted this approach. See generally Wendy Brown, Walled States, Waning Sovereignty (2010) (arguing that the construction of walls and other barriers has less to do with actual immigration control, and more to do with symbolically compensating for the state’s diminished relevance in times of globalization). The physical protection of the border may go hand in hand with increased patrolling, the use of surveillance technology and remote control cameras and drones, as well as with data collection and the use of other law enforcement techniques. See generally, De Migratiemachine: De Rol van Technologie in het Migratiebeleid (Huub Dijstelbloem & Albert Meijer eds. 2009); Dennis Broeders, Breaking Down Anonymity: Digital Surveillance of Irregular Migrants in Germany and the Netherlands (2009); Dennis Broeders & Godfried Engbersen, “The Fight Against Illegal Migration: Identification Policies and Immigrants’ Counterstrategies,” 50 American Behavioral Scientist 1592 (2007). The use of the navy to patrol the seas in territorial waters also falls within this type of approach. The so-called ‘securitization’ of migration however, extends far beyond the focus on reinforcing the strictly territorial boundaries of the state. It involves the use of surveillance methods, enhanced police authority, and data collection throughout the territory of the state. See generally, inter alia, Christopher Strunk & Helga Leitner, Resisting Federal – Local Immigration Enforcement Partnerships : Redefining “ Secure Communities ” and Public Safety Resisting Federal – Local Immigration Enforcement Partnerships : Redefining “ Secure Communities ” and Public Safety, 1 Territory, Politics, Governance 62 (2013); Valsamis Mitsilegas, Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State, 19 Indiana Journal of Global Legal Studies 3 (2012); T. Miller, Blurring the boundaries between immigration and crime control after September 11, 25 Boston College Third World Law Journal 81 (2005); Once securitization was added to the political mix of anti-immigration sentiment, it became easier to develop rules to identify, locate, and ultimately detain and deport irregular migrants. Though this anti-immigration sentiment will sometimes self-identify as ‘anti-illegal-immigration’ sentiment, I will conflate these two, if only for the simple reason that there is a very easy way to resolve the problem of irregular immigration. Making regular immigration possibilities widely and easily available will drastically reduce and eliminate irregular immigration. However, this, coupled with the idea of an amnesty or some other form of legalization, is not an option for anti-immigration proponents. However, and important from a geographical perspective, surveillance does not rely only on the role performed therein by official agents of the state; rather, as will be illustrated, surveillance is both active and passive. I have recently described overall approach to controlling irregular migration, by means of a mix of active and passive, public and private means, as ‘illegality regimes’. J.M. Amaya-Castro, “Illegality Regimes and the Ongoing Transformation of Contemporary Citizenship,” 4(2) European Journal of Legal Studies 137 (2011). At the heart of state policies in this area lies a particular logic that has been applied, in variable degrees, in many immigration countries around the world. The main idea, some times also referred to as ‘attrition through enforcement’, is based on the old ‘broken window’ theory upon which zero tolerance policies were based in the 1990s. Perhaps the most vocal proponent of the attrition through enforcement strategy is Kris Kobach. See generally Kris W. Kobach, “Attrition through Enforcement: A Rational Approach to Illegal Immigration,” 15(2) Tulsa Journal of Comparative & International Law 155 (2008). Recently, it became a full-fledged doctrine in US anti-immigration circles, and is also referred to by what it seeks to encourage in irregular immigrants: self-deportation. Ironically, the term ‘self-deportation’ was originally coined by two Hispanic-American stand up comedians, in the 1990s. The gist of this strategy is essentially to make it very difficult for undocumented migrants to deal with many of the basic things in a normal daily life: getting a job, getting a driver’s license, opening a bank account, Sarah’s article renting a house, etc. By making all these activities contingent on having a valid residence permit, undocumented migrants are excluded from participating in ordinary economic and social life. The expectation is that as these daily tasks become increasingly difficult, irregular immigrants will just pack up and go home, or at least go elsewhere. The idea has been hailed as a more humane approach that is anti-immigration and pro-migrant, since it does not involve draconian law enforcement measures, detention, litigation and costly deportation procedures. For this reason, too, it has been hailed as more rational and cost effective than traditional immigration control policies. Kobach, supra note 34, at 162; Jessica M. Vaughan, “Attrition Through Enforcement: A Cost-Effective Strategy to Shrink the Illegal Population,” Center for Immigration Studies Backgrounder (Apr. 2006), available at http://www.cis.org/articles/2006/back406.pdf. But, there are those who disagree: XXX An illegality regime is a legal regime that is permeated with moments of identity control that aim to verify migration status. Crucially, the actual control does not take place only or even primarily by means of actions performed by state officials, but rather throughout society, by regular citizens, by means of what some have called delegation, See generally Adam B. Cox & Eric A. Posner, New York University School of Law Public Law & Legal Theory Research Paper Series, Working Paper No. 11-68, “Delegation in Immigration Law” (2012). and others have called ‘deputization’. Broeders, supra note 37. Here is where the geographical dimension comes in. If the border is the place where one’s identity is verified, and one’s legal migration status is established; if the ‘border function’ is being exposed to the scrutiny of the check point, to a moment of identity control, then illegality regimes mean that the border is everywhere. Borders are diffused throughout the complex web of identity controls that are routinely performed by employers, land lords, banks, doctors, travel agents, and so on. Illegality regimes point to migration law’s function as a point of entry (or non entry), dispersed throughout both the territory and the legal system, and routinely applied. This term “allows for an appreciation of the full extent of the states’ preoccupation with and determination to mould society and its legal system to accommodate its drive to fight irregular immigration.” Amaya-Castro, supra note 39, at 141. The more intense an illegality regime, the more moments of identity control, the more diffuse its geography, the more the territory of the state is riddled with points of entry and exclusion, with border functions. One can argue that not only (irregular) immigrants, but in fact everybody is affected by such a regime, not just in the sense of being deputized, but also in the sense of becoming the constant focus of verification of legal status. Id. In fact, a lot of the opposition in the US against these types of anti-immigration strategies, in particular from those on the right, is framed as an instance in which employers and others are further exposed to government bureaucracy and how this could additionally be an additional burden on businesses. In other words, extensive illegality regimes create a situation in which everyone is, constantly, potentially an irregular immigrant, until proven otherwise. Additionally, the intersection between illegality regimes and situations in which states contain diverse racial or ethnic groups is a complex and challenging one. The claim that enhanced powers for police officers to verify migration status will lead to instances of racial profiling which will affect different ethnic groups with enormous asymmetry has been articulated eloquently, See, e.g., Kieth Aoki & John Shuford, “Welcome to Amerizona—Immigrants Out: Assessing dystopian Dreams and Usable Futures of Immigration Reform, and Considering Whether Immigration Regionalism is an Idea Whose Time Has Come,” 38 Fordham Urban Law Journal 1 (2010); Andrea Christina Nill, “Latinos and S.B. 1070: Demonization, Dehumanization, and Disenfranchisement,” 14 Harvard Latino Law Review 35 (2011); Mary Romero, “Are Your Papers in Order?: Racial Profiling, Vigilantes, and ‘America’s Toughest Sheriff’,” 14 Harvard Latino Law Review 337 (2011); Desmond Tutu, “Arizona: The Wrong Answer,” Huffington Post, 29 April 2010, available at http://www.huffingtonpost.com/desmond-tutu/arizona----the-wrong-answ_b_557955.html (last accessed 10 October 2011). even as it was all but rejected in a recent judgment of the US Supreme Court. Arizona v. US (USSC 2012), judgment by Scalia XXX However, this argument, even when accepted most seriously, and in the context of formally anti-racist and egalitarian legal systems, can be seen as an appeal to even more control: “[T]he paradoxical situation arises that those states that are the most multiracial and multiethnic, the most antiracist and egalitarian in terms of class, must also employ the most rigorous, sophisticated, and intrusive means of enforcing their illegality regimes. In other words, egalitarian and anti-racist societies with strong illegality regimes must be more indiscriminate in their enforcement, spreading the net as wide as possible and employing the most rigorous checks on the most different types of people.” Amaya-Castro, supra note 39, at 149 (emphasis in original). With the important caveat that most identity controls will usually target minority groups and the lower echelons of society, one can make the observation that an illegality regime exists when migration law has become not just part of everybody’s day-to-day existence, but pervasive throughout the territory of the state. By linking identity checks to as many services and facilities as possible, the regime seeks to close the net around irregular migrants, isolates them, and effectively change what it means to be inside a territory, by assimilating a regime of exclusion, an outside, into the jurisdiction of the state. Id. at 147. This has been in fact the objective in many of the Southern US states’ legistlations. Their legislation has ventured to close off any contact between public authorities and undocumented migrants. EXAMPLES In the migration-fixated state, one is never fully inside, but always entering, or rather, being-allowed-in. This becomes the normal state of affairs, and for most people an entirely normalized and obvious statement of ‘the way things are’. In some countries, people might still feel a strong resistance against something like a compulsory ID. In other countries, the ones where compulsory IDs are completely normal, this may seem an exaggeration. In any case, experience shows that countries can move from one state to the other, for reasons related to a general securitized anti-immigration sentiment, without it being the end of the world. The author of this article was born in Colombia, where there have been compulsory IDs since before he was born. He has lived most of his life in the Netherlands, which went from a state in which the very idea of compulsory IDs reminded people of the Nazi occupation in WWII, and was therefore a taboo, to a state in which terrorism and immigration made it very difficult to oppose the introduction, in 2005, of compulsory IDs. Nowadays it is not even a topic for debate. He also spent a short period in the US, where the introduction of a compulsory national ID would seem still many political bridges too far. In short, even though our daily existence can be one in which we're always potentially excluded, always on our way to an inside that is never entirely there, this may happen without affecting our sense of clarity about being ‘inside’ a particular country. In other words, though migration law can be thoroughly problematic in its deterritorialization or delocalization of the border, this can happen without seriously affecting our experience of being inside a particular territory. However, and to return to the previous observations about the intersections between illegality regimes and situations of structural discrimination, this would imply that the border, and the perpetual process of being allowed in, is the same for everyone: a difficult proposition to uphold. As Étienne Balibar has remarked, borders are “polysemic” in nature. Etienne Balibar, Politics and the Other Scene 81 (2002). In fact, an important function they play is to produce different experiences: “[Borders] are, to some extent, designed to perform exactly this task: not merely to give individuals from different social classes different experiences of the law, the civil administration, the police and elementary rights, such as freedom of circulation and freedom of enterprise, but actively to differentiate between individuals in terms of social class.” Id. at 81-82. See also David Lyon, on social sorting. The crucial question, then, is what are the differences that individual points of entry, that individual moments of identity control, that individual instances of ‘being allowed in’ produce? What is the selection that takes place? Who are the ones that get a free pass, with a wink, and who are the ones that merit close scrutiny? What are the instances that see high checkpoint intensity, and what areas of social and legal life are left alone? What are the high intensity checkpoint professions? Which are the low intensity checkpoint neighborhoods? These questions clarify how migration law, and illegality regimes in general, create a grid of social and political-geographical nodes just waiting to be analyzed, for they contain a wealth of information about the aggregate effects of migration law. 4. The Geographical Dimension of Technological and Governmentality Developments Having seen in section 2 how territoriality is a geographic construct that is historically contingent and technologically mediated, and in section 3 how territoriality is a legal construct that is quite malleable, this section will explore two ongoing contemporary developments that may impact on how the law of migration control intersects with territoriality. Section 4.1 focuses on technological developments that impact on political consciousness in ways that revolutionize the ability of the state, and everybody else, to read and to be ‘legible’. Section 4.2 harks back to the history of the contemporary state in order to explore the advent of neo-liberalism as a drastic shift in the way governing happens. As I will argue, this may contribute to a reframing of territoriality, from the container of political organization, into a sub-entity that serves global capitalism; all of which reframes the role of territoriality and geography in the context of migration control and the role that law plays therein. 4.1. The Advent of the Automated Profile Much of the interest in technological developments and in the growth and strengthening of biometrics and systems of surveillance is oriented towards processes of securitization, including that of migration, and the development of so-called smart borders, Deborah Waller Meyers, “Does ‘Smarter’ Lead to Safer? An Assessment of the US Border Accords with Canada and Mexico,” 41 Internaitonal Migration 6 (2003); Emmanuel Brunet-Jailly, “Passports, Mobility, and Security: How Smart Can the Border Be?,” 5 International Studies Perspectives 71 (2004); Salter, supra note 32. in what has been referred to as ‘the biometric state’. Benjamin J. Muller, Security, Risk and the Biometric State: Governing Borders and Bodies 2010. An example of this development is the European Border Surveillance System (EUROSUR), a large scale information gathering and sharing network mean to survey all of the EU borders, while focusing on the Mediterranean, and that is expected to cost €338 million for 2011-2020. See http://europa.eu/rapid/press-release_MEMO-11-896_en.htm (last accessed 15 August 2013). See also Gloria Gonzalez Fuster & Serge Gutwirth, When ‘Digital Borders’ Meet ‘Surveilled Geographical Borders’: Why the Future of EU Border Management is a Problem, in J. Peter Burgess & Serge Gutwirth (eds.), A Threat Against Europe?: Security, Migration and Integration (2012) 171. The focus on contemporary technologies of identification is a focus on surveillance. David Lyon, Identifying Citizens: ID Cards as Surveillance (2009); Maria Los, Looking into the Future: Surveillance, Globalization and the Totalitarian Potential, in David Lyon (ed.), Theorizing Surveillance: The Panopticon and Beyond (2006) 69. Indeed, the flurry of news about the contemporary state of surveillance, the fact that much of it is shrouded in secrecy, shielded from rigorous democratic accountability, all these are potentially worrying or even anxiety provoking developments. Additionally, it seems likely that the prime focus of much of the surveillance: potential terrorists and irregular migrants, is a focus that, through mission creep and path dependencies, may tend to expand and be aimed at everybody. Consider e-Verify, a US Federal Program that was developed as part of the effort to control irregular migration. Employers may check with a database to see whether a prospective employee is an irregular migrant. At the time of writing, this program is voluntary, but part of the proposed reforms to US immigration policies is to make it more and more a requirement. For one particular alarmist perspective on this: John H. Cochrane, Think Government is Intrusive Now? Wait Until E-Verify Kicks In, Wall Street Journal, 1 August 2013; http://online.wsj.com/article/SB10001424127887324328904578622072955112746.html (last accessed 15 August 2013). In the context of identification, its historical significance has been referred to as the révolution identificatoire. This expression is generally attributed to Gérard Noiriel, The French Melting Pot: Immigration, Citizenship, and National Identity (1996). Not only have identification documents, in their various manifestations become globally widespread, they have become increasingly important, and not only for the purpose of crossing international borders. This identificatory revolution is moreover acquiring explosive speeds with the development of technologies that allow the production not just of types of documents (made from special paper or plastic), but especially biometrics and digital technologies that allow for connecting and accessing this information. Biometric technologies in particular are being developed that promise to make both the document itself and the agent that performs the actual identification redundant. David Lyon, Under My Skin: From Identification Papers to Body Surveillance, in Caplan & Torpey supra note XXX, 291 The identificatory revolution is a technological revolution; and if the impact of previous technological revolutions on the legal and political dimensions of the state is anything to go by, then the ID-revolution has a lot in store for our social, legal, and political orders. However, I want to first draw attention to one dimension of this development that is often overlooked. Sustaining an emphasis on the ‘project of legibility’, I want to briefly look at what I call the advent of ‘the automated profile’. The context is the fast paced growth of digital data collection, storage, and commodification, which generates new industries revolving around data mining, and which is now generally referred to as ‘Big Data’. Big Data refers to anything really that can be collected digitally, from the browsing behavior of internet users as well as the multiple activities performed on social networks, to data gathered using biometrics, such as by means of CCTV, to data gathered tracking handheld devices by means of GPS. The term has recently become a bit of a hype, especially in the wake of the publication of Kenneth Cukier, Viktor Mayer-Schönberger, Big Data: A Revolution That Will Transform How We Live, Work, and Think (2013). A key feature of this development is that it is yet unclear how all this data collection will be used and who it will benefit, even as there is much investment in the expectation that it will; in this way it functions as an axis of the growing internet economy. Recent years have seen an explosion in the number of degrees being offered in (big) data management or (big) data analytics. What is clear though is the data is analyzed using algorithms that can perceive patterns, a process that produces what is referred to as a ‘profile’. See Mireille Hildebrandt & Serge Gutwirth (eds.), Profiling the European Citizen: Cross Disciplinary Perspectives (2008), which offers a fascinating insight into the technological vocabulary, possibilities and limitations, as well as potentialities of this phenomenon. What stands out among the various debates in this rich book is the disagreements regarding the degree of technological (in)determinacy, causality, the importance of human agency (in the process of input, analysis and output, as well as response), and underneath it all, variations in expectations, ranging on a broad spectrum between pessimistic fear of widespread abuse (public and/or private) and the optimism envisioning of utopian possibilities. The profile, the discerning of patterns, the stereotyping and generalizing, none of this is new, for sure, but it is the large scale (semi-)automated and almost immediate capacity for the production of profiles that is probably a game changer. Profiling is the act of producing information out of noise, knowledge out of all the data, or knowledge about what promises to be an innumerable amount of aspects of life. Algorithmically generated profiles are already being employed, and not just by security agencies, but also by banks, insurance companies, and of course by the big Internet companies, such as Google, Facebook, and Twitter; the focus is towards the ability to predict, of risk or of consumptive behavior. Additionally, it will offer enormous possibilities for intervention, among others by creating ‘autonomic’ spaces that take decisions on the bases of profiles, or ‘automated pattern recognition’. Mireille Hildebrandt & Bert-Jan Koops, The Challenges of Ambient Law and Legal Protection in the Profiling Era, 73 The Modern Law Review (2010) 428. The phenomenon is also known as ‘ambient intelligence’ (hence ambient law), and should be imagined as a house or a room or an office that is filled with sensors and in which a (probably remote) computer takes decisions about e.g. lighting or heating, etc., on the basis of what the sensors gather in terms of information. The imagined uses go from the care of the elderly to the control of (potential) criminals. One comprehensive analysis of the technological implications of automated profiles for the rule of law and democracy lead to a following conclusion: “It seems that profiling, especially in the context of smart applications and Ambient Intelligence, requires a focus shift from data to knowledge, while the type of knowledge that is at stake differs from more traditional knowledge production. We conclude that this shift has far-reaching implications for the relationship between citizens, commercial enterprise and governmental powers. This requires lawyers, policy makers, computer engineers and politicians to rethink the socio-technical infrastructure of constitutional democracy. Citizenship, participation in the creation of the common good and personal freedom cannot be taken for granted, they presume that citizens have some awareness of what is known about them and by whom. (...) Citizens are facing a new situation, in which they will mostly have no control, while most probably not a single entity (governmental or private) will be in control." Mireille Hildebrandt & Serge Gutwirth, “Concise Conclusions: Citizens Out of Control,” in Mireille Hildebrandt & Serge Gutwirth (eds.), Profiling the European Citizen: Cross Disciplinary Perspectives (2008) 365, at 365 and 368. They offer some insufficiently comforting suggestions and conclude that more research is needed. There are two crucial dimensions here. One dimension relates to the production of identities that happens by means of profiling. David Lyon has referred to this as ‘social sorting’: a means of verifying identities but also of assessing risks and assigning worth. David Lyon (ed.), Surveillance as Social Sorting: Privacy, Risk, and Digital Discrimination (2003). Though social sorting is as old as life, and technologies of identification have always been instrumental in this process, the age of ubiquitous surveillance and automated profiling promises to forcefully disrupt the economy of social sorting, and in ways that are impossible to predict. For one, it may produce an onslaught of spurious identities with a very short life span, thereby impacting on the economy of identity in general. The new media offers many possibilities in the realm of performativity. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). On the other, if genetic information is digitalized and integrated into the profiling process, it may produce identities that will be much more difficult to modify or resist. A second dimension relates to the geographical dimension of this production of profiled identities, which in the age of connectivity also means their dissemination and consumption. Think of ‘memes’ going ‘viral’. For the notion of memes, see Susan Blackmore, The Meme Machine (2000). Here the question of ‘control’, already highlighted in the quote above, comes to the foreground. Though there are features of geographical decentralization in this, just as there are features of privatization and even democratization, the question of control is elusive, shrouded in the language of technology and in metaphysical metaphors, such as hyperspace and ‘the cloud’. In the 2000s there has however been a shift from the metaphysical to more grounded topologies of the internet, in what has been called ‘the revenge of geography.’ See for an interesting account of the history of efforts at mapping the internet: Richard Rogers, Mapping and the Politics of Web Space, 24 (4/5) Theory, Culture & Society (2012) 193. Part of this re-grounding of the internet is related to the growth of services and applications for handheld devices that rely on location data and has been called the ‘locative turn’. As Galloway and Ward explain in the language of a project of legibility that has become handheld: “For any technological device to be ‘aware’ of its context--physical or otherwise--it has to be able to locate, classify, collect, store and use ‘relevant’ information, as well as to identify and discard or ignore ‘irrelevant’ information.” See Anne Galloway and Matthew Ward, Locative Media as Socializing and Spatializing Practices: Learning from Archaeology, 14(3) Leonardo Electronic Amanac (2006). The locative turn also has its resonance with ambient intelligence, also known as ‘the Internet of Things’. See Marc Tuters and Kazys Varnelis, Beyond Locative Media: Giving Shape to the Internet of Things, 39(4) Leonardo (2006) 357. For a linkage between media studies and geography see Tristan Thielmann, Locative Media and Mediated Localities: An Introduction to Media Geography, V(A) Aether: The Journal of Media Geography 1 (2010). See also: Rowan Wilken and Gerard Goggin (eds.), Locative Media (2015). However, as some observers remind us, the Internet should be perceived as a realm of (remote) control, rather than freedom, and though data may move along global nodes, it is controlled. Alexander Galloway, Protocol: How Control Exists After Decentralization (2004) (problematizing important political notions when it comes to the internet such as connectivity, collectivity, and participation). How this is controlled is, in my opinion, still up for grabs, as old and new political actors struggle for the commanding heights of the new and ever changing status quo. Jonathan Pugh (The Spaces of Democracy and the Democracy of Space Network), What are the Consequences of the ‘spatial turn’ for How we understand politics today? A proposed research agenda, 33(5) Progress in Human Geography 579 (2009). What is clear however is that spatial categories are being rapidly shuffled, and their intersections with the political struggle over who gets to produce identities will likely be shifty ones for the foreseeable future. The identificatory revolution is, in this sense, a geographical revolution. 4.2. State Territoriality, Capitalism, and the Advent of Neo-Liberal Governmentality So far, we have seen a territoriality of the state that is historically contingent, and that is deeply intertwined with what I have called geographical technologies. In this third claim, I will focus on the political economy of the territoriality of migration law, by arguing that capitalism and the modern state have shared territorial roots and trunk and maybe even branches. The rise of capitalism is commonly seen as a related to the rise of the bourgeoisie. Sassen puts this development as part of a context of the early period of globalization, in the wake of the 'age of discovery', which went hand in hand with the phase of pillaging, trade and the early colonization of overseas territories. Sassen, supra note 52, generally chapter 3. Though the sovereign Prince was originally strengthened by the centralization of power that this period entailed, the concentration of power, and more importantly wealth, gradually shifted to a more abstract state, at the expense of the traditional nobility, but to the benefit of the rising class of merchants and traders and all those who were benefitting from the spike in international trade and transnational activities, both with regard to the colonies, as well as with other European states who were also developing their capitalist classes of merchant bourgeois. Sassen makes here the important observation that different capitalisms arose in different national contexts, which is a first support of the claim being made here. As the modern liberal state developed, its overall structure in terms of constitution, rights, and democratic rule was slowly constructed very much in ways that further supported this new capitalist class. The right to property, as championed by John Locke, and which was very much in support of colonial subjugation and the rights of slave owners, as well as the idea of freedom, foreign trade, and parliamentary representation, all these constitutive elements of the incipient liberal democracies were very much to the benefit of the national capitalist classes. In the same way that the bourgeoisie was legally constructed in the shape of the well-known property holding, rational white male, there was also the legal construction of the worker, by various legal regimes and doctrines, as somebody at the service of the entrepreneurs with access to capital. This process was maintained as it allowed for increasing urbanization, industrialization, and the further projection of national capitalism onto the imperial domains abroad. It was through this process of national capitalist expansion that capitalism first globalized, along the spaces created by what Sassen calls inter-imperial coordination, and which allowed for the European national colonial empires to reach their global apex. In order to track how the modern territorial state then related to the capitalist logic, I will rely on Michel Foucault's reconstruction of what he called "the art of government". In this next section I will rely primarily on Michel Foucault, The Birth of Biopolitics: Lectures at the College the France (1978-1979), Michel Senellart (ed.) (2008); Michel Foucault, Security, Territory, Population: Lectures at the College the France (1977-1978), Michel Senellart (ed.) (2007). Foucault identifies three periods for this purpose. In the first period, which takes place with Sassen's first wave of globalization (1600s to 1800s), the state was guided by the logic of the raison d'état. In this guise, the state was focused on reinforcing its territorial rule by means of controlling its population through the establishment of a strong authoritative state, and on its competition with other states, both in terms of having good diplomatic relations and strong armies, as well as by means of a mercantilist system that allowed it to accumulate monetary means and really develop its national capitalist base. In this mode, the state did not really see immigration in a negative light, since it allowed it to increase its population, which was good for an increased taxation and conscription-capacity. This coincides with what McKeown identifies as a period in which states seemed more interested in controlling people's exit, rather than their entry. In the next period, Foucault identifies what he calls classical liberalism, and which takes place from the mid-18th century and prolongs itself until after WW II. In this period, and without abandoning the previous logic, but rather in a move to refine it, the state shifts its focus to political economy and to a concern for scientific truth and the internal self-limitation. In other words, the state in this period becomes preoccupied with not governing too much. This is reasoned not in absolute or dogmatic terms, but rather in transactional terms with an eye on the (possible) effects of government action. Science can provide an evaluation of actions that are ultimately determined by the calculation of utility. In normative or legal terms the quest becomes how to formalize the operation of this self-limitation, and an important marker becomes the avoidance of things that may disrupt the market. Externally, competition is replaced by the idea of progress through mutual enrichment, which additionally requires expansion. We see processes of globalization here becoming an objective, both in terms of capitalist expansion as well as in terms of broader cooperation around the world. The crucial question during this period becomes how to balance freedom on the one hand with on the other hand the necessity to limit freedom, which is understood as the need for security. This balance should be calculated not on the basis of some natural law principle, as it would have been in the previous period, but on the basis of a calculation of interests and effects. In terms of migration, the reasoning is the same one. Allowing migration or not becomes then a question that can be answered by trying to balance between freedom and security. In practice this would have meant generally allowing immigration to take place, unless some reason could be found to limit it. This could be that migration is good, because it brings in fresh workers into the labor market, or that there may be reasons, such as a fear of espionage or other disruptive activities, or even racist reasons, however couched, such as the various anti-immigration measures imposed on Asians by the US in the late 19th century. In other words, what is important in this period is how reasons in favor or against a particular migration law are couched, how they are justified and how their implementation is organized and rationalized. Territory here is something to be contained, its boundaries function as a filter. We find in this period the contemporary paradigm for migration law as a territorial discourse. The final period identified by Foucault is the current one, which is neo-liberalism. An important aspect of Foucault's periodization is to remember that each period carries the older period(s) within it, rather than completely replacing it. So, neo-liberalism does not replace liberalism, and one may find many liberal approaches in the current period. In any case, neo-liberalism starts with a rejection of Keynesian economics as well as with a rejection of laissez faire. The first is too modernist, in the sense that there is too much faith in planning and in the capacity of the state to control the economy. The second is considered somewhat naive. Instead, the function of the state, its very legitimacy, is considered by whether it can or has produced sufficient economic growth. The liberal principle of exchange, based on the idea of mutual interest, is replaced by the principle of competition, while laissez faire is replaced by the need for the state to actively create competition. The separation between the state and the market is replaced by the idea of one sphere, governed by market rationality. Crucial to neo-liberalism is the idea of human capital, the neo-liberal homo economicus, the individual as an enterprise unit, a producer of his/her own satisfaction; it is about the extension of market logic to every realm of (social) life. Interestingly, neo-liberalism does not see labor from the perspective of capital, but rather from the perspective of the worker, for whom labor is not a commodity in exchange for a wage, but rather an investment in order to acquire an income. The balance between freedom and security is slowly replaced by a more sophisticated consideration of what will lead to economic growth, which includes state interventions to improve 'the conditions of existence' of the market, which means society itself. Though Foucault does not refer to territoriality in this context, I would infer that territory becomes more of a fluid thing, to be deployed for the benefit of economic growth, with due consideration to human capital, rather than something that is jealously sealed off and protected. With regard to migration law, such a description of neo-liberalism would accord well with recent trends in migration law, and not just with the trends themselves, but in particular with the rationale behind them and with their justification. Policies are designed to affect the cost-benefit analysis of potential irregular migrants as well as asylum seekers; their identity as investors of their time and effort is taken seriously. Countries such as Canada, Australia, and New Zealand are introducing points systems in order to ascertain, in some quantified way, the human capital of potential immigrants, as well as their worth in the labor market. The number of categories to describe migrants, both in policy as in law, is growing, all in ways that could be considered as a description of their human capital or in order to differentiate them in such a way that the various market players can identify them. I have already referred to ‘the profile’, as the data processing technology that allows for the identification of the hyper-differentiated subject. There are the knowledge migrants, the creative migrants, students, family reunification migrants, domestic workers, care migrants, etc. McKewon, at 357, also refers to this phenomenon, if not connecting it to neo-liberalism. If a couple of generations ago guest workers were recruited to Western Europe as bringers of the commodity of labor for a wage, their new version, the so-called circular migrants, are recruited as labor entrepreneurs who will invest their time and efforts in the migrant labor circuit. Emigration states, like the Philippines and Bangladesh, are so supportive of these efforts, in particular because of the enormous amounts of income in the shape of remittances, that they almost become like brokers, trying to facilitate the human capital of their economy find its ways to fertile areas where labor can be invested; the way a good neo-liberal state should. Even irregular migration, and how it opens up labor markets for precarious work, might be justifiable according to the neo-liberal logic. And though this may sound a bit cynical, one argument that is often heard is that the market needs them, while another is that their status should be regularized since they run the risk of being excessively exploited and even held in some sort of servitude; an argument that reeks of human capital. Consider the US legislative proposal called the Dream Act, and its strong focus on irregular migrants with college degrees; i.e. human capital. In any case, a lot more needs to be said about the interrelationship between the political economy of global capital and mobile labor, and of course about how and what the state has to do with all this. Foucault, Sassen, and many others have been calling our attention to the displacement of power and control toward what could be called ‘new forms of governmentality’, or ‘new global assemblages of territory, authority, and rights’. 5. Concluding Territoriality has come a long way since it became a prime organizing principle during the age of cartography and the politics of calculation, and it was instrumental for the centralization of political authority into the modern state. Mediated and produced by technology, but hidden by its function as a tool of (national) socialization, the national territory, and territoriality in general, was naturalized and symbiotically attached to political sovereignty and legal authority. In recent times, geographical technologies have rapidly taken off and the quantum leaps of their development are yet to produce any visible legal and political institutional results. Moreover, contemporary globalization has moved much of the production of formal identities away from the national realm to international organizations, This is a topic upon itself, but the project of legibility has moved its center to Paris (OECD, UNESCO), Rome (ISO, ILO), Washington (WB & IMF), Geneva (UN-family, IMO, etc.), and to other places where international standards are set and where indicators are produced on anything that concerns governmental functions. A recent OECD summit on the problem of massive tax evasions by transnational corporations resulted in proposals that fall mostly in the category of standard setting, allowing for a better collection of information and a centralization of the production and verification of the relevant categories of activities. In the context of securitization David Lyon has pointed out how the social sorting that goes with surveillance has in fact been harmonized by global standards. See David Lyon, Surveillance, Security and Social Sorting: Emerging Research Priorities, 17(3) International Criminal Justice Review (2007) 161. For all of the token of national statehood, the passport is an international document that needs to fulfill international standards and requires recognition by another state for it to function. See Marc Salter, Passports, Mobility, and Security: How Smart Can the Border Be?, 5 International Studies Perspectives 71 (2004) (explaining how, for reasons that are unclear, the international passport regime falls under the competence of the International Civil Aviation Organization (ICAO)). XXX Sassen? while the production of economic and social identities increasingly plays out under the auspices of the big transnational corporations that generate and manage Big Data. As we are witnessing a reshuffling of spatial political categories, it is unclear what exactly will happen with territoriality, especially since it is still very much a naturalized phenomenon that is moreover deeply engrained in our formal legal and political apparatuses. The territorial state seems as unmovable as the argument that there is a sovereign right to control migration. Increasingly, it would seem, migration control policies seem to be relying on the availability of rapidly evolving technologies. A lot of faith (and money) has been put into so-called “smart borders,” supra note XXX which will use the latest in surveillance high tech to monitor and police the border. However, this enthusiasm seems to be very much embedded in the physical border, and is focused on the old categories of entry and exit. One half exception to this fixation is Karine Côté-Boucher, “The Diffuse Border: Intelligence-Sharing, Control and Confinement Along Canada’s Smart Border,” 5 Surveillance & Society 142 (2008). Though this article seems sensitive to the idea of the border becoming ‘diffuse’, it never lets go of the actual border, or of its function in (unfairly) keeping (some) people out of the national territory. It also falls into the trap of thinking that only unwanted migrants are affected by illegality regimes. In other words, it is using high-tech surveillance but low-tech territoriality. In this sense smart borders are, for all of their sophistication, akin to the multiplication, all over the world, of walls and fences, as a way to keep people out. In the Spring of the révolution identificatoire, with the most sophisticated technology at the state's disposal, the political imagination still seems fixated on a territorial technology that was high tech in Feudal times. Not for nothing has Wendy Brown seen in this paradox a waning of (territorial) sovereignty. Brown, supra note XXX. “Ancient temples housed gods within an unhorizoned and overwhelming landscape. Nation-state walls are modern-day temples housing the ghost of political sovereignty. They organize deflection from crises of national cultural identity, from colonial domination in a postcolonial age, and from the discomfort of privilege obtained through superexploitation in an increasingly interconnected and interdependent global political economy. They confer magical protection against powers incomprehensibly large, corrosive, and humanly uncontrolled, against reckoning with the effects of a nation's own exploits and aggressions, and against dilution of the nation by globalization. These theological and psychological features of the clamor for walls help explain why their often enormous costs and limited efficacy are irrelevant to the desire for them. They produce not the future of an illusion, but the illusion of a future aligned with an idealized past.” Id. at 133. Formal structures, such as territorial sovereignty, are often the last to adapt to new circumstances, and may even survive the demise of the powers that once gave them life. The role of monarchies in European democracies is an example of a formal institution that is all but ceremonial, even if their position is usually regulated by national constitutional law. However, the changes in constitutional law were often the result of their loss of institutional significance, rather than the cause. Though contemporary globalization is said to contain processes in which the sovereignty of the state is being diluted, reference I would prefer to emphasize that it is less ‘globalization’ itself as the massive shift to neo-liberal governmentality that has taken place in the last couple of decades and is currently dictating much of the rationalities behind contemporary policies, including on migration. My analysis of neo-liberal governmentality relies on Foucault, The Birth of Biopolitics. Whether neo-liberal governmentality is what makes globalization happen, or the other way around, is a question that I consider to be in the genre of chicken and egg. As mentioned above, the general tendency to see migration control policies as primarily focused on making migration more difficult is erroneous, for the same states that are limiting immigration are also trying to entice certain types of immigrants. Though too much of this selection is guided by ethnic or xenophobic considerations, EU & Global apartheid, supra badly concealed as concerned with ‘social cohesion’, in what is a classical territory = state = nation-trope, methodological nationalism there are other considerations as well. The most politically powerful argument in favor of migration is the economic benefit that migrants will bring, and even very restrictive systems have special consideration for investors, highly skilled migrants, and others. Neo-liberal governmentality is also the rationale pushing for an increasingly ‘market based’ selection, in which (increasingly transnational) employers become involved in legal migration procedures. Perhaps the most sophisticated way of selection can be found in what is called a ‘points system’, introduced on a large scale by Canada and Australia, in which immigrants are admitted on the basis of a selection of qualities, qualifications, or skills. Get an impression of how this works, and whether you will pass the test, at: http://www.cic.gc.ca/english/immigrate/skilled/assess/index.asp. For sure, unless you have health problems and/or a criminal record, chances are that, if you are in the demographic that reads this article, you will pass the test. A different approach that is often taken is one in which employers select the immigrant, depending on their needs. A combination of these two systems is on the rise. See Demetrios Papademetriou & Madeleine Sumption, Rethinking Points Systems and Employer Selected Immigration, Migration Policy Institute, June 2011. Though it is tempting, after doing broad historical sweeps, to look ahead and imagine a future I have engaged in such an exercise of imagination, in what might be called ‘legal futurism’: “Global Mobility Law in 2050: Legal Science Fiction,” Fourth Bergen aan Zee Workshop on Migration Law, (8-9 February 2012) (paper on file with the author). that is ‘post-Westphalian’, I would caution against that, if only because there is a tendency to imagine such a future with what we see at present. And so, the post-Westphalian state tends to be seen as supra-national, in ways that make it seem as if the main difference between Westphalian and its post is the scale, and less its geographic qualities. Considering how geography is mediated by cartographic and locative media, and how this media is surprising us at every turn, including its political and legal dimensions, it may be wise to abstain from too much futuristic imagination. However, we can already reinterpret the present and dislodge our thinking about the law of migration control as one in which what is at stake is the will to deny access to a fixed terrain. Instead, we can think of geography as being a legal tool that is deployed in a highly differentiated context of mobility, in which ‘globalization’ is rapidly altering our political and economic horizons, and in which the formal institutions that we are accustomed to, are scrambling to keep track. These states, our formal institutions, seek thereby to salvage their own justification, now recast as maximizers of human capital (which includes the elusive ‘social cohesion’ and ‘cultural identity’), even as they put themselves at the service of global capital. The present reinterpreted in this way, territoriality does not refer exclusively to the national patches on the global map that need to be defended against infiltration and invasion, or to the jurisdictional sovereignty and delimitations of formal states. Rather, territoriality becomes one of several dimensions in the formal state’s attempts to compete effectively on global markets, by means of innovative regulatory techniques, Consider tax regimes for corporations, and how these are now being referred to, in public debate, as ‘citizens’ with patriotic duties, or consider the states that are putting their nationalities for sale. that seek to pull and push, and not just to keep out. Draft – 22 Aug 2014 Do not quote without permission 5