CE41 - Inégalités, discriminations, migrations

Discretionary Power at the Border: Socio-Legal Controversies Surrounding Migrants’ Rights – DisPow

DisPow

The Discretionary Power of the State at its Borders

The aims of the project: to study the Discretionary Power of the State, what for?

The general objective of DisPow is to analyze these socio-legal controversies in order to understand their origin, the different conceptions of justice they symbolize, the way they are challenging contemporary EU and French policies, and their effects on civil society’ actions. Inspired by the Law and Society approach, this resolutely interdisciplinary project focuses on the contemporary forms of the discretionary power of the State and its influence on 1) the everyday interpretation of the law and the implementation of immigration policies; 2) migrants’ (and in particular asylum seekers’) access to fundamental rights; and 3) social movements. The aim is to analyze resistance and protest against this discretionary power of the State through the prism of socio-legal practices that are challenging the legitimacy of contemporary immigration policies in France. The study of socio-legal controversies is pertinent to understanding: 1) how the law can be mobilized as a weapon, by whom, under what conditions, and with what results; 2) the spaces (the street, Prefecture offices, squats, etc.) where different conceptions of justice appear and conflict, and where these different conceptions converge (administrative courts, district courts, high courts, international courts, outside the court, etc.); 3) whether and how these controversies are part of broader social movements, or to what extent they contribute to the emergence of (renewed) social movements.

Through an ethnographic approach, the project studies both the implementation of immigration policies and everyday experiences of resistance to build a multi-dimensional model of the discretionary power of the State. DisPow proposes to compare three French border zones to better understand these interconnected phenomena. A fieldwork focuses on the French-Italian border), It studies: 1) civil disobedience’ acts in the Roya valley and related ongoing trials; and 2) cause-lawyers’ work at the French-Italian border. The comparison with the two other border zones (the Calaisis, and the French-Spanish border) is compelling as it will allow us to test the hypothesis that social phenomena, such as the use of discretionary power and its associated socio-legal controversies, are not ‘natural’ and not systematically linked to geographic peculiarities.

- the comprehension of the processes of decision due to a discretionary power which impacts the access to fundamental rights

- contribute to the public discussion of what is legal/illegal and what is legitimate/abusive in the use of the discretionary power of the State

- scientific publications
- scientific talks
- vulgarization activities (radio, documentary films and soundclouds...)

In times of sustained conflict and humanitarian crisis, migration has become both a main political issue, and a key topic in understanding the transformation of civil societies. In the past three years, Europe has experienced the greatest incoming movement of people since the Second World War, and is still dealing with the so-called ‘refugee crisis’. These transnational movements of asylum seekers are affected by border control policies that have been adopted or modified in a post-terrorist attacks climate. The counter-terrorism argument is often used by governments, including in France, as a justification for the adoption of emergency orders that suspend or modify the law and limit fundamental rights and freedoms in the short to longer term. The right to entry to the EU to seek asylum is dramatically affected by these measures. International Conventions, such as the Geneva Convention of 1957, remind us what the (theoretical) limits of this discretionary state power are, in accepting and refusing asylum seekers. In practice, exclusion and selection criteria today are increasingly blurred: many asylum seekers are de facto excluded in spite of their eligibility as nationals of unsafe countries, and/or as at-risk categories such as unaccompanied minors. As a consequence, these violations provoke protests that can translate into socio-legal controversies. These controversies bring actors defending different definitions of fundamental rights and different ways of guaranteeing these rights in democratic societies into opposition. Courts are often called upon to decide on the merits.
The general objective of DisPow is to analyze these socio-legal controversies in order to understand their origin, the different conceptions of justice they symbolize, the way they are challenging contemporary French policies, and their effects on civil society’ actions. This resolutely interdisciplinary project focuses on the contemporary forms of the discretionary power of the State and its influence on 1) the everyday interpretation of the law and the implementation of immigration policies; 2) migrants’ (and in particular asylum seekers’) access to fundamental rights; and 3) social movements. The aim is to analyze resistance and protest against this discretionary power of the State through the prism of socio-legal practices that are challenging the legitimacy of contemporary immigration policies in France. The study of socio-legal controversies is pertinent to understanding: 1) how the law can be mobilized as a weapon , by whom, under what conditions, and with what results; 2) the spaces (the street, airports, railway stations etc.) where different conceptions of justice appear and conflict, and where these different conceptions converge (administrative courts, district courts, high courts, international courts, outside the court, etc.); 3) whether and how these controversies are part of broader social movements, or to what extent they contribute to the emergence of (renewed) social movements.
Through an ethnographic approach, DisPow proposes to compare three paradigmatic case studies, to better understand these interconnected phenomena: the French-Italian border (in particular the Roya valley and the coast zone between Vintimille and Nice), the Grand Calais (in
particular Calais and Grande-Synthe), and the Basque country (in particular the coast zone between Hendaye and Irun). The fieldwork proposes to investigate how different actors deal with ‘real law’, being engaged in controversies related to migrants’ rights. Far from the conventional view of law as mythical abstraction, the project aims to shed light on how the law is used in practice by migrants, activists, lawyers, local policymakers, and public officers. While surveying examples of actual socio-legal practices dealing both with the implementation of immigration policies and with their contestation, the research team will look to the potential of the law as a tool for social change.

Project coordinator

Madame Annalisa Lendaro (Centre d'Etudes et de Recherches Travail Organisations Pouvoirs)

The author of this summary is the project coordinator, who is responsible for the content of this summary. The ANR declines any responsibility as for its contents.

Partner

CERTOP Centre d'Etudes et de Recherches Travail Organisations Pouvoirs

Help of the ANR 249,987 euros
Beginning and duration of the scientific project: December 2018 - 36 Months

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