The Ambiguities of Legalization and the EU’s Strategy of Extraterritorial Border Control

Abstract

Despite an increased level of legalization of Justice and Home Affairs (JHA), academic literature has paid little attention to the role of law in this field. By drawing on two different strands of the literature, namely 'politics of law' and the 'autopoietic theory of law', this paper addresses the question on how legalization has affected the practice of extra-territorial border control by the EU and its Member States. Empirically, the article focuses on border control performed by Frontex' joint operations and by individual Member States. We observe that legalization affects the approach of 'remote control' in two different and competing ways. On the one hand, it enhances the autonomy of national and supranational executives, whereas on the other hand, legalization, in all its hybrid manifestations, stimulates a transnational legal discourse that policy-makers can neither oppress nor ignore.