European Papers (Oct 2024)
Executive Migration Governance and Law-making in the European Union: Towards a State of Exception
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 513-527 | Article | (Table of Contents) I. Introduction. – II. The rise of executive migration governance in the EU. – III. Emergency: when soft law creates law. The example of the hotspots. – IV. From emergency to exception: on the abnormal normalisation of executive governance. – V. Conclusion. | (Abstract) : In the name of effectiveness, European Union (EU) governance has long departed from the traditional approach of governing through law, venturing onto new paths of making and discharging policies across different policy fields. Through new and creative governance, networked governance, and gov-ernance through agencies, flexibility and functionalism have become the new paradigms of EU govern-ance. This is particularly striking in the interiors area, including internal security and migration, where the fuzziness of the constitutional framework leaves wide margins to new governance approaches to intervene to “fill the gaps”. Failing to achieve harmonization through law (because of the high sovereign sensitivity and politicization), EU governance turned to harmonization through practices, trying to in-crease trust and boost cooperation on a practical level playing field. While legislative production regu-lating the core of EU asylum and migration is still scarce (i.e., regulating the substance of migration), hard law provisions mushroom when it comes to empowering agencies, regulating operational cooper-ation, or harmonizing practices across the EU (i.e., regulating the administration of migration). The ac-tual management of migration occurs then within this latter executive/administrative dimension. Ana-lysing (executive) migration governance in terms of whether it achieved its original intents (effective-ness and depoliticization) would only tell something about its goodness of fit, and little about its good-ness. In light of the incessant crises that have hit the EU, this Article reflects on the close-to-Schmittian state of exception, that is fuelling an increasingly creative governance in the Union.
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