PUBLI : Bastien Charaudeau Santomauro, « The Legal Production of the Margin : Migrants Between Border and Territory », Cahiers de l’EDEM, Special Issue, 2022


It has been more than six years since France rein­tro­duced controls at its internal borders, thus dero­ga­ting from Schengen’s ordi­nary rules. A new border regime has emerged from this situa­tion, one charac­te­rized by frequent reports of migrants’ rights viola­tions. Combi­ning legal ethno­graphy at the French-Italian border and legal theory, this article explores the notion of “legal margin” to unders­tand what happens between the border and the terri­tory. This concept shows that the border­line affects how legal norms are applied within the terri­tory next to it. It further unfolds through two ideas. Firstly, the main­te­nance of legal inde­ter­mi­na­cies by the State updates and rein­forces in an original way a fiction of a‑territoriality—people appre­hended near the border are consi­dered as if they were not in the territory—which places migrants outside the protec­tive dimen­sion of the law. Secondly, the regime of admis­sion (the refusal of entry) is applied without the corres­pon­ding deten­tion proce­dure (the waiting zone), thus allo­wing for what appears to be extra­legal deten­tion prac­tices. The concept of margin seeks to enable legal theory to grasp what trans­pires in the ambi­guity of the terri­to­rial space near the border­line and further explain exclu­sio­nary borde­ring processes.

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