Informality and rule of law in migration control: a dialogue between the North and the South

• In Event: Penality in the south(-s) (3): Southern (border) criminology (2)

Abstract

The study of informality has important roots in Southern theory: ranging from the law (Boaventura de Sousa Santos, 1987) to urban studies (De Soto, 1989) and urban economy (Broomley, 2000). These studies have underlined that informality is a formula that refers to different aspects (informality of the practices, informality as the absence of planning, etc.) and implies a variety of causes, actors and motivations.
Recently the EU migration policy has been characterised by a high degree of informality, the use of non-legal acts or hidden agreements with non-EU countries.
In this paper, I would like to open a discussion on the degree of informality in migration control policy drawing from the case of Italy, whose migration control policy has its root in administrative rules (Gjergji, 2013) and in obscure executive power.
This peculiarity has been named infradiritto (in Italian) and infra-droit (in French) to identify a ‘rule of law’ characterised by a multiplication of rules, often unclear, subjected to frequent changes, open to the bureaucratic arbitrariness, and therefore hard to challenge in court.
Complementary to this normative order is the informality of practices of managing and controlling migration (Ferraris 2009; Fabini 2017).
Making the example of the externalisation of migration control, I aim to argue that the current domination of soft law instruments (such as Memorandum of Understanding, Pact, Protocol, etc.) offer cues to reflect on the use of informality in the governance of migration between North and South.

Author

• Valeria Ferraris, University of Turin