Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’

This article examines the current European refugee ‘crisis’ by challenging, from a theoretical perspective, the way in which the European Union (EU) has used the increased number of deaths in the Mediterranean as an opportunity to frame recent migration flows as an emergency which, by definition, can only be addressed through the adoption of exceptional measures. The analysis engages with the work of Giorgio Agamben on biopolitics and state of exception to illustrate, first, the need to rethink the way in which borders are defined and used (e.g. externalised) within the context of the European refugee ‘crisis’. Second, Agamben’s work is useful to understand what moves the externalisation and privatisation of migration, and to ascertain how international law has enabled the emergence of this ‘crisis’ framing, whilst at the same time partly losing its ability to challenge EU policies. The article argues that the posture of humanitarianism adopted by the EU masks the fact that the appalling situation in which refugees are abandoned is not accidental but inherent to the enhanced measures adopted by the EU and its member states as part of the European Agenda.


Introduction
In this article I examine the current European refugee 'crisis' by challenging, from a theoretical perspective, the way in which the European Union (EU) has used the increased number of deaths in the Mediterranean as an opportunity to frame recent migration flows as an emergency which, by definition, can only be addressed through the adoption of exceptional measures.
Throughout the article, I engage with the work of Giorgio Agamben 1 on biopolitics 2 and state of exception to illustrate, first, the need to rethink the way in which borders are defined and used (e.g. externalised) within the context of the European refugee 'crisis'. Second, Agamben's work is useful to understand what moves the externalisation and privatisation of migration, and to ascertain how international law has enabled the emergence of this 'crisis' framing, 3 whilst at the same time partly losing its ability to challenge EU policies. I argue that the posture of humanitarianism adopted by the EU masks the fact that the appalling situation in which refugees are abandoned is not accidental but inherent to the enhanced measures adopted by the EU and its member states as part of the European Agenda. Whilst Agamben's work has been broadly deployed in the context of forced migration by scholars from various disciplines, 4 his theory remains controversial 5 and perhaps not fully understood. I see his work as part of broader interrogations on the relationship between biopolitics and crisis, as developed by the work of contemporary Italian thinkers (referred to by Roberto Esposito as Italian Theory or 'Italian Thought'), 6 and as such useful to examine the * Research Fellow, Lund University, Faculty of Law; Assistant Professor at the University of Nottingham, School of Law; Head of the Forced Migration Unit, Human Rights Law Centre, University of Nottingham. Email: daria.davitti@jur.lu.se. All websites were last accessed on 10 August 2018, unless otherwise stated. 1 Whilst engaging with various publications by this well-known philosopher, I will focus mostly on the arguments that he develops in A. Agamben role of international law in enabling, shaping and maintaining the ordering nature of violence 7 of EU migration policies, including in their current dimensions of externalisation. This article is therefore based on two main premises which are tested by applying some of the conceptual tools offered by Agamben or, to use his own terminology, his interpretative paradigms. 8 The first premise is that the fortified walls and militarised borders erected in response to the latest European migration 'crisis' reflect the waning of state sovereignty 9 within the transnational global order. Crucially, however, these physical infrastructures also serve the purpose of pushing the borders beyond the geographical confines of the EU, 10 by diverting migratory flows towards pre-established processing 'hotspots' 11 in Greece and Italy, or to countries of transit or origin in exchange for so-called development aid. 12 Refugees are thus redirected towards more dangerous routes: 13 on land, where they are more exposed to the violence of 7 See C. Salzani, 'From Benjamin's bloßes Leben to Agamben's Nuda Vita: A Genealogy' in B Moran and C Salzani (eds) Towards the Critique of Violence: Walter Banjamin and Giorgio Agamben (Bloomsbury, 2015) 109. 8 In his lecture 'What is a Paradigm?' at the European Graduate School in August 2002, Agamben looks at Kuhn's use of the term paradigm, first as 'designating what the members of a certain scientific community have in common, that is to say, the whole of techniques, patents and values shared by the members of the community'. Second, in its oldest meaning, a paradigm 'can guide the investigation also in the absence of rule. (…) The paradigm is in this sense just an example, a single phenomenon, a singularity, which can be repeated and thus acquires the capability of tacitly modeling the behavior and the practice of scientists'. Transcript of the lecture available at www.maxvanmanen.com/files/2014/03/Agamben-What-is-a-paradigm1.pdf. 9 W. Brown, Walled States, Waning Sovereignty (2010). See however Brown's more recent reflections on how this thesis may be inadequate to fully analyse recent EU border developments. She argues that 'States today are concerned not only with the concrete political, social and economic costs or benefits of immigration, but with its potential impacts on the nation's attractiveness to potential creditors and investors': see R. Jones et al, 'Interventions on the State of Sovereignty at the Border' (2017) 59 Political Geography 1, 3. See also M. Feher's argument in 'The Critical State of the Union' (2016), available at www.nearfuturesonline.org/the-critical-stateof-the-union/, which inspires Brown's perspective: Fehler claims that, since the recession of 2009, EU policymaking has been mostly dominated by two fundamental preoccupations: 'attracting international investors while repelling undesirable migrants'. 10  border guards and traffickers; 14 and at sea, where the line between rescue operations and pushbacks is increasingly blurred. 15 Agamben's work, in this context, is useful to make visible the way in which EU policies justify and enable violent externalisation measures, not least through increased cooperation with third countries in the attempt to avoid state responsibility for possible wrongful conduct. The second premise is that whilst refugees are managed and controlled along these routes, international obligations to provide refugee protection are circumvented, enveloped as they are in a 'state of willed exception'. 16 In what follows I examine the way in which state sovereignty, in its current shifting and fluid form, 17 16 Agamben, State of Exception, supra note 1 (emphasis added). 17 W. Brown, Undoing the Demos (2015), where she describes how, at the end of the Cold War, neoliberalism emerged as a new form of governmental reason, and how this 'would inaugurate democracy's conceptual unmooring and substantive embowelment'. In her view, neoliberalism not only fills the meaning of democracy with market values, it also 'assaults the principles, practices, cultures, subjects, and institutions of democracy understood as rule by the people. And more than merely cutting away the flesh of liberal democracy, neoliberalism also cauterizes democracy's more radical expressions'. 18 Vaughan-Williams, supra note 4 at 34-43. 19 I draw the concept of 'liquity' from Zygmunt Bauman, and more specifically from his critique of how, in liquid modernity, globalisation and privatisation affect society and ultimately our lives, including in terms of how life is organised in a fragmented way, with a focus on adaptability under the current conditions of endemic uncertainty. See e.g. Z. Bauman, Liquid Modernity (2000); and Z. Bauman, Liquid Times: Living in an Age of Uncertainty (2013). 20 See R. Jones et al, 'Interventions on the State of Sovereignty at the Border' (2017) 59 Political Geography 1, supra note 9: the article is divided into various contributions by seven authors who look at different geographical spaces and manifestations of the borderscape. For instance, Wendy Brown looks at border walls as semiotic responses to waning state sovereignty, but also as 'pieces in complex sovereignty contests between national and postnational powers of political determination, economic arrangements and demographic composition'. Emily Gilbert examines, in her contribution, the increased securitisation and militarisation of the border and the way in avoiding international obligations (such as concepts of 'safe third country' or forced returns measures through agreements aimed at readmission). The juxtaposition of liquidity and infrastructure forces us to debunk conventional political narratives which are pervasive in current migration 'crisis' discourses. Most importantly, as I explain in this article, I understand these infrastructures as the physical and legal embodiment of the state of exception, described threshold we see 'a regime of the law within which the norm is valid but cannot be applied (since it has no force), and where the acts that do not have the value of the law acquire the force of law'. 23 As I will evidence in this article, both infrastructures are indeed essential to fully understand the role of international law in enabling these EU policies and maintaining the ordering nature of violence of the European Agenda.

The State of Exception in the European Agenda on Migration
In this section I engage with the work of Giorgio Agamben on biopower, biopolitics and state which privatisation and bilateral agreements to outsource migration de facto result in the erasure of the borders and in a re-articulation of state sovereignty. 21   borders. This understanding of 'crisis', as evidenced below, has in turn enabled the adoption and implementation of EU migration measures that, although couched in humanitarian language, have the aim of preventing people from reaching the EU 31 and, when they do, of swiftly returning them to non-EU countries of origin or transit. I argue that the role of international law in this 'crisis' framing needs to be problematized and made visible 32 as it contributes to the violent transformation of the EU borderscape. 33 EU borders have essentially become liquid borders, in that they have (at least partially) lost their spatial and territorial significance as well as their legal and political meaning, as migration controls are increasingly outsourced. From the perspective of international law the crossing of the border to seek international protection has partly lost its importance, as the EU and its member states increasingly rely on readmission and return policies aimed at externalising migration control. 34 Before examining in section II the role of international law in both enabling and maintaining the presence of these liquid borders, I will analyse, from a theoretical and practical perspective, the phenomena that have paved the way for their existence.

A. 'Crisis', Biopolitics and State of Exception
The member states (Greece and Italy) to 'swiftly identify, register and fingerprint arriving migrants and to assist investigation and dismantling migrant smuggling networks'. 40 Thus, whilst the situation at the Southern borders of Europe was depicted as a humanitarian emergency demanding immediate intervention, those same refugees-whose lives these enhanced EU measures were ostensibly devised to save-were simultaneously portrayed as a potential security threat. Whether implicitly in the language of EU officials, or more explicitly in political and media debates, they were in fact construed not only as potential terrorists, but also as a threat to the economic security of EU member states (at a time of protracted financial austerity); and to the identity of their citizens (at a time of increased populism, racism and xenophobia). 41 As argued by Whyte in her in-depth study of Agamben's work, 'the convergence of humanitarianism and killing should serve as a provocation to rethink the contemporary relation between politics and life and death, and to interrogate the intersection of a power to kill with a commitment to maintaining life'. 42 Agamben's work on biopolitics and state of exception is apposite in examining, through the language of emergency and humanitarianism adopted by and bios (political life) in that it is the direct result of a sovereign decision. 48 As explained by Whyte, [b]y bare life Agamben means a life that is politicized through the fact of its exclusion. Neither simply natural life nor political life, bare life is the threshold of articulation that enables the passage from one to the other. Like Walter Benjamin's depiction of 'mere life' as a life exposed to the mythic violence of the law, Agamben's bare life is not a natural life but a life exposed to sovereign power and the threat of death. (…) In the transformation of Afghan civilians into subjects of military humanitarian intervention, to be killed or kept alive, we see one of many manifestations of this separation of biological life from forms of life. However contemporary these lives may be, in Agamben's view, we will not adequately understand them unless we address the division between life and politics inaugurated by Aristotle. political,Agamben emphasises that this politicisation of bare life is to be understood not as a new phenomenon but as the original activity of sovereign power: the inclusion of bare life in the political realm constitutes the original-if concealed-nucleus of sovereign power. It can even be said that the production of a biopolitical body is the original activity of sovereign power. In this sense, biopolitics is at least as old as the sovereign exception. Placing biological life at the center of its calculations, the modern State therefore does nothing other than bring to light the secret ties uniting power and bare life. 49 In its current political expression, the intersections between natural, biological life (zoē) and politics have become more visible in the way in which the state regulates, controls and manages people's lives. The focus and insistence of sovereign powers on regulating the biological life of people reproduces bare lives, and in turn these bare lives are exposed to violence and death.
According to Agamben, therefore, the fracture and separation between zoē and bios continue to characterize modern Western politics: what is decisive and innovative, it follows, is not so much the inclusion of zoē into the political sphere or that life becomes the main object of the calculations of state power but that: together with the process by which the exception everywhere becomes the rule, the realm of bare life-which is originally situated at the margins of the political order-gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoē, right and fact, enter a zone of irreducible indistinction. At once excluding bare life from and capturing it within the political order, the state of exception actually constituted, in its very separateness, the hidden foundation on which the entire political system rested.  Presence (1993). See also J. Nancy, The Gravity of Thought (1997). 53 Agamben, Homo Sacer, supra note 1 at 28. 54 Ibid. of indistinction which is both inside and outside of the law, the 'sacred' man, both condemned and/or banned. He can be killed by anybody with impunity as his killing cannot be considered homicide. He cannot however be the object of sacrifice to the gods. 55 He is not 'simply set outside the law and made indifferent to it, but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable'. 56 What defines the status of homo sacer, therefore, is not only the same violence to which he finds himself exposed, 57 captured as he is in the sovereign sphere in which he is vulnerable, 58  when natural life is included in the polis, Agamben sees zoē as being included only through its actual exclusion. 63 According to Whyte, it is crucial to note 'the ambivalence of abandonment: the one who is abandoned is both utterly exposed to the law and cast outside of its jurisdiction.
It is this ambivalence that Agamben reiterates in his account of the sovereign ban. The one who is banned, he writes, is not outside the law in any simple sense, but "exposed and threatened" on the very threshold of the law'. 64 Thus with the term 'inclusive exclusion' Agamben refers to the way in which people are included in the polis by an exclusion which exposes them to violence and death. 65 Agamben emphasises that since 'the relation of ban has constituted the essential structure of sovereign power from the beginning', 66 we must now learn to recognise the ban in the political relations that inhabit our times, now that biopolitical power has become more apparent in its various manifestations. The concepts of the ban and of the state of exception are of course closely interlinked, and both are useful to understand the way in which emergency, juridical exclusion/inclusion and violence materialise themselves in various contemporary contexts, including within the infrastructures of EU's liquid borders. These concepts are also the theoretical key to understanding the relationship between law and anomy-that is law and the absence of law. According to Agamben, the state of exception is 'a void, a blank and this empty space is constitutive of the legal system'. 67 States, Agamben argues, do not intervene to effectively prevent catastrophes, they allow them to happen (and in some cases even contribute to their occurrence), so that they can then use them to intervene and restore security in the right way, 'to orientate them in a profitable direction'. 68   The emergency discourse and the language of humanitarianism exemplified above through the example of 'The Jungle' and of the Dubs amendment operate to delineate a situation of protracted 'crisis', thus justifying a state of exception where the meaning of the laws guaranteeing international protection is hollowed out. As mentioned above, this image of 'crisis' is consolidated and maintained by the framing of people trying to reach the EU as a security threat and of the migration movement itself as precipitating an unprecedented humanitarian emergency. The responses that can be envisaged to respond to this emergency pertain, by nature therefore, to the realm of exception where more profound questions on the structural nature of the problem at hand are automatically bypassed. 81 Since an 'emergency' demands immediate action, there can be no time for further analysis, conceptualisation, identification of longer-term solutions, or for governance through law. With the normalisation of the state of exception, the administration of anomy and of the absence of order is also normalised: domestic, regional and international law which would normally operate to ensure that refugees have access to international protection are thus, it would seem, irrevocably compromised. 82 Although the law continues to exist in the background, it becomes merely management tool-focused as it is on figures and statistical data. Thus, through the administration of humanitarian assistance the lives of refugees are stabilised, managed and controlled by sovereign power through comprehensive systems of administration and control.
Simultaneously, however, sovereign power also 'disallows the lives of refugees to the point of death': 83 EU officials and spokespersons of EU member states continue to appropriate the language of humanitarianism in order to present their measures as urgent and indeed indispensable to save the lives of refugees and to prevent them from embarking on perilous journeys or from falling in the hands of human traffickers. Yet, as I will discuss further in part 80 E. Addley, 'Why has the UK ended its "Dubs" child refugee scheme?' The Guardian, 10 February 2017, available at https://www.theguardian.com/uk-news/2017/feb/10/why-has-the-uk-ended-its-dubs-child-refugeescheme. 81 P. Pallister-Wilkins, 'Interrogating the Mediterranean Migration Crisis' (2016) 21 Mediterranean Politics 311. 82 Similarly, see Charlesworth, supra note 3, at 388-90, where she discusses the silences resulting from this 'crisis' framing in international law. 83 In order to explain how the sovereign power establishes what must live and what must die, Foucault discusses the ways in which biopolitics instrumentalises the idea of killing by introducing the idea of racism, through which killing becomes 'tolerable': 'When I say killing I obviously do not mean simply murder as such, but also every form of indirect murder: the fact of exposing someone to death, increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection, and so on'. See Foucault, Society Must Be Defended, supra note 21, 254-6.
3, sovereign power also acquires a more distinctly lethal dimension in the multifarious manifestations of the camp inherent to the systems of border governance instituted by EU. 84

The Physical and Legal Embodiments of the State of Exception
In this part I examine the spatial transformation resulting from the measures adopted to implement the European Agenda and I describe the non-linear emergence of the camp, understood by Agamben as a paradigmatic space, 'the structure in which the state of exception is permanently realized'. 85 The physical manifestations of the camp span from the hotspots in Italy and Greece to the detention centres and processing hubs scattered throughout North Africa and the Sahel. 86 In parallel we also see the emergence of borderline legal manifestations of the camp-which I call the legal infrastructures or apparatus of the EU's liquid borders. As I discuss below the EU's exploitation of the concept of 'safe third country', 87 its idea of 'refugee protection elsewhere' 88 and the reliance on formal or informal readmission agreements with non-EU countries of transit or origin 89 can all be seen as elements of the contemporary apparatus (dispositif) of EU power. As explained by Agamben, Foucault first defined the term dispositif in 1977 as first and foremost, a thoroughly heterogeneous set consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions-in short, the said as much as the unsaid. Such are the elements of the apparatus. The apparatus itself is the network that can be established between these elements. (…) I said that the nature of an apparatus is essentially strategic, which means that we are speaking about a certain manipulation of relations of forces, either as to develop them in a particular direction, or to block them, to stabilize them, and to utilize them. The apparatus is thus always inscribed into a play of power, but it is also always linked to certain limits of knowledge that arise from it and, to an equal degree, condition it. The apparatus is precisely this: a set of strategies of the relations of forces supporting, and supported by, certain types of knowledge. 90 Expanding on Foucault's definition, Agamben defines the dispositif as literally anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviors, opinions, or discourses of living beings. Not only, therefore, prisons, madhouses, the panopticon, schools, confession, factories, disciplines, juridical measures, and so forth (whose connection with power is in a certain sense evident), but also the pen, writing, literature, philosophy, agriculture, cigarettes, navigations, computers, cellular telephones and-why not-language itself, which is perhaps the most ancient of apparatuses. 91 Thus, in the same way in which the language of humanitarianism has been appropriated to present as acceptable the deliberate exposure of refugees to death, 92 there are also other less obvious techniques of sovereign power that operate in similar ways to materialise the state of exception. According to Agamben, the camp is a signifier, a space 'topologically different from a simple space of confinement', 93 where 'bare life and juridical rule enter into a threshold of indistinction'. 94 Following from this, 'we must admit that we find ourselves virtually in the presence of a camp every time such a structure is created, independent of the crime that are committed there and whatever its denomination and specific topography'. 95 Through this lens Agamben is able to recognise a camp every time that a seemingly innocuous place is used as a space 'in which the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign '. 96 International law, I argue, plays a key role in enabling and maintaining the existence of various 90 M. Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977(1980 at 194-6. 91 See G. Agamben, What is an Apparatus? and Other Essays (2009) at 14. 92 Polly Pallister-Wilkins argues that humanitarian intervention is used to 'mask the violence of the border' and also to offer an alternative, more positive narrative to the increased militarisation of border practices. In her view the appropriation of humanitarian language also masks the overlap between rescue operation and capture/border policing missions. Through this masking process border violence is thus erased and neutralised, together with any counter-narrative attempting to expose it. See P. Pallister-Wilkins, 'Humanitarian Rescue/Sovereign Capture and the Policing of Possible Responses to Violent Borders' (2017) 8 Global Policy 19. 93 Agamben, Homo Sacer, supra note 1 at 28. 94 Agamben, supra note 22, at 171-2. 95 Agamben, Homo Sacer, supra note 1 at 174. 96 Such as when in 1991 the Italian police herded Albanian immigrants in the stadium in Bari before forcibly returning them. Ibid. manifestations of the state of exception, and thus of the camp. In what follows I examine Agamben's paradigm of the camp and how it manifests itself in the current policies of the European Agenda.

A. The Camp and its Manifestations Along the EU's Liquid Borders
In order to comprehend the ineffable nature of the camp and its juridico-political structure, it is necessary to look at what Agamben calls the 'constitutive nexus' between the state of exception and the camp. When the law that underpins the state of exception becomes normalised, when it becomes the rule (such as in the example of the Schutzhaft, the Nazi decree that confirmed the suspension of all rights but did not directly refer to a previously declared state of exception), 97 a space opens up for the camp to delineate itself. Thus, if we understand the camp as a result of the state of exception rather than of ordinary law, it cannot be conceived as an unintentional anomaly confined to a very specific set of historical circumstances. Rather than confuse the camp with the legal rules that confirmed its existence, we should conceive of it as 'the hidden matrix and nomos of the political space in which we are still living'. 98 To explain this conceptual shift, Agamben recounts how during the Nazi regime, the jurist Werner Spohr approvingly referred to the concept of a 'state of willed exception' (or gewollten Ausnahmezustand). This terminology clearly indicates that the state of exception is not determined by 'an external and provisional state of factual danger' 99 or by an 'extrapolitical, natural fact that law must limit itself to confirming and recognizing. It is, rather, a threshold in which law constantly passes over into fact and fact into law, and in which the two planes It is within this paradox of a state of willed exception that I wish to locate the border practices that the EU and its member states deploy in their relentless implementation of the European Agenda. These practices, as we have seen above, thrive on the appropriation of a humanitarian 97  language which mask the increasing militarisation, privatisation and externalisation of migration control. 102 Although these phenomena are not new, they are now significantly accelerated and exacerbated by the willed biopolitical technique of government deployed by the EU and its member states. In the remainder of this article I focus on two recent developments in EU migration policies which, I believe, can be considered as apparent manifestations of the camp. They encompass both the physical and legal elements of it: one pertains the 'safe return' system built around the concept of 'safe third countries'-whereby refugees can be sent back to their country of origin or to a third country through which they have transited, because they are considered 'safe'; and the other is the proliferation of cooperation agreements on migration management and readmission with third countries of origin and destination-with the resultant blurring of the lines between voluntary and involuntary returns. It is important to note that these two phenomena are indeed interlinked.
The EU return policy, in particular, complements and consolidates a predominant tendency to fast-track the processing and forced return of people who were not immediately deemed entitled, for various reasons, to international protection. Fast-tracking procedures have been criticised for over a decade, since with their objective of speeding up the refugee determination process, they often result in decisions that do not reflect the real nature of the asylum cases considered and in turn precipitate the repatriation of people to places where they are at risk of persecution. 103 More specifically, the establishment of the return policy reflects the preoccupation of the EU with a phenomenon called 'secondary movement', that is the movement of refugees from one member state, in which they do not want to stay, to another in which they intend to apply for asylum. The return policy relies on the immediate identification, registration and fingerprinting of refugees in dedicated processing centres in hotspots in Greece and Italy, in order to ensure their subsequent relocation to other EU member states or return to a safe third country. This system is in turn made possible by a network of agreements with third countries which have been 'persuaded'-mainly through a 'more for more' approach which makes the disbursement The Hungarian government's hard-line approach to refugees should be understood in the context of its long-standing refusal to offer international protection except in cases based on claims for political asylum, which in their interpretation should only amount to approximately 1% of the asylum requests submitted. 116 In response to the European Agenda, in early 2016 Hungary closed its Southern border with Serbia, thus sealing the 'Balkan route', which at the time was the main passage through which refugees moved from Greece to northern Europe. 117 Since July 2015 Hungary has also identified neighbouring Serbia as a safe country of transit, 118 despite the country having been officially declared unsafe by the UN Office of the High Commissioner for Refugees (UNHCR) in 2012, 119  The systematic and increasing reliance on formal or informal readmission agreements, signed through political and cooperation 'compacts' with third countries of origin and return is a further aspect of the immigration measures being replicated across and beyond the EU, and which reproduces the Agambian paradigm of the camp. The EU-Turkey 'deal' is only one of the many compacts-another biopolitical technique of bordering governance-according to which asylum seekers who have reached Greece from Turkey and who have been found to have no ground for international protection can be automatically returned to Turkey because of its safe third country designation. One of the key points of the 'deal' was its prioritisation of Syrian refugees, since for every Syrian returned to Turkey, another Syrian was meant to be resettled directly from Turkey to an EU member state. This one-to-one swap envisaged a cap of 72,000 resettlements, in line with the third Relocation Decision of September 2016, 124 and substantively relied on the effective functioning of the Greek hotspots. Despite the lack of compliance of most EU member states with the Relocation Decisions, already discussed above, the EU-Turkey 'deal' is vaunted by the European Commission as a success in stemming the flows across the Aegean route, improving return rates and preventing refugees from putting their lives at risk. 125 Simultaneously, the EU-Turkey 'deal' is also being presented as a benchmark to be replicated elsewhere, 126 129 In the meantime, after the 'successful' sealing of the Aegean and Balkan routes described above, the focus has shifted towards closing for migration-related projects aimed, inter alia, at the 'humanitarian' repatriation of refugees to Libya, with an initial target of 5000 returns. 131 There is no doubt that the EU humanitarian cum security discourses outlined above mask the abysmal conditions to which refugees are exposed as part of these systems of processing, detention and return. I submit however that these conditions cannot be seen as accidental, noras it is often discussed-as the result of dysfunctional bureaucracies and of the inherent challenges posed by situations of mass influx. 132 Such interpretations would contribute to the perception that external matters of fact 133 (e.g. the inefficient implementation by Greece or the unprecedented numbers of refugees reaching the EU) or matters of law (e.g. the inapplicability of international protection provisions to refugees who should have applied for asylum elsewhere) 134 are the cause of the physical and mental harm to which refugees are exposed, their lives systematically 'disallowed to the point of death'. 135 Furthermore, by accepting and discussing this situation as accidentally caused, we would divert our attention from the need to understand that it is actually intrinsic to the enhanced deterrent measures adopted by the EU and its member states as part of the European Agenda. Most importantly, this systemic negligence towards refugees is an integral element of the EU's sovereign technique of governing, deployed in full force to maintain a willed state of exception and the biopolitical abandonment of these people.

Reflections and Conclusion
In this article I have engaged with Agamben's work in order to challenge the current policies of the European Agenda, and more specifically the 'crisis' framing and the way in which EU officials have appropriated the humanitarian discourse to justify the adoption of draconian exceptional measures to stem the flow of refugees towards the EU. I have used Agamben's paradigm of the camp, and his conceptualisation of the ban and of the state of exception to present my central argument that this posture of humanitarianism adopted by the EU masks the fact that the appalling situation in which refugees are abandoned is not accidental. It must be understood as a form of systemic negligence towards refugees and as a constitutive biopolitical strategy of the measures adopted by the EU and its member states as part of the European Agenda. This analysis neutralises EU claims that these enhanced deterrent measures are aimed at saving lives at sea, and in turn opens up an opportunity for their rejection and reversal.
Admittedly, the picture that I have outlined so far does not leave much space for imagining how this state of willed exception could be reversed, and Agamben himself claims that certain categories of Western politics are bankrupt and exhausted (e.g. sovereignty, citizenship, the rule of law and, crucially, human rights). However, he 'sees this exhaustion as the condition of the possibility of a new politics', 136 and his work has been conceptualized and used in different ways by various scholars, beyond the initial paralysis that an Agambian analysis may instil. 137 In Whyte's view, it is necessary to build on the strengths of Agamben's work to 'invent new 134 See Foster, supra note 88. 135 Butler and Agamben, supra note 28. 136  political forms that are capable both of forestalling the dangers of the present and contributing to a world in which we are able to make free use of our own capacities'. 138 In her analysis, Agamben's way of '[s]eeing the catastrophe of the present as itself a sign of redemption' is not sufficient as it represents a way to avoid responding to the seeming closure of the political imagination 139 that we are experiencing, not least within the context of migration. Where does this leave us as international lawyers and as people who wish to change this situation? One cannot help but feel powerless when traditional avenues of contestation through human rights courts and legal challenges to abusive state action appear to be either inaccessible 140 or ineffective 141 in their attempt to achieve justice. As I reflect on whether international law may at all in the future become a tool for radical change, Agamben's theory, looking beyond its own limitations, helps us make visible what would otherwise remain uncontested, that is the humanitarian posturing of EU migration policies. For the purposes of the use (and misuse) of international law, it is also useful to identify and ultimately acknowledge the inherent limitations of international law and of the ways in which it is used to reproduce and legitimise violence, 142 as evidenced in this article on the European Agenda. As scholars, we need to remember that 'reaching automatically for the juridical tools that liberalism offers may leave us without the necessary conceptual or strategic means to understand and counter the techniques of power involved in these new [migration] regimes'. 143 In seeking for alternative narratives, we must look outside of the traditional toolbox to which we are accustomed, and be sure to avoid precluding the political alternatives and potentialities for change. 144 138 Whyte, supra note 42, 7. 139 Ibid. 140 See e.g. the decision by the General Court of the European Union in NG, NG and NM v European Council, Cases T-192/16, T-193-16 and T-257/16: the declared that 'it lack[ed] jurisdiction to hear and determine the actions brought by three asylum seekers against the EU-Turkey statement' since, it held, 'that measure was not adopted by one of the institutions of the EU' but by the Heads of States or government of the member states.