In the current situation there is a crying need to limit the arbitrariness of states by confronting them with legitimate and internationally recognised counter-powers.
THE situation in the Mediterranean basin continues to intensify: a daily mass grave which is partly a cover-up, with states establishing or tolerating methods of elimination which history will certainly judge as criminal. Between both of these we find initiatives that embody the solidarity efforts of ‘civil society’: cities of shelter, ‘humanity smugglers’, rescue vessels that are forced far too often into a cat-and-mouse game due to the hostility of the public authorities.
This situation is not unique in the world. But for us European citizens it holds a particular meaning and urgency. It calls for a restructuring of international law towards a recognition of hospitality as a ‘fundamental right’, thereby imposing on states obligations which should have at least as much clout as the grand proclamations of the postwar period (1945, 1948, 1951). We must therefore talk about this.
To start with: who are we talking about? Are we talking about ‘refugees’, about ‘migrants’, or about a different category encompassing both? These distinctions are, as we know, at the heart of both the administrative practices and the objections levelled towards the latter. But above all, the type of rights we acknowledge and the way we describe the fact of depriving people of these rights also depends on how we designate the humans who are to be protected or constrained.
‘Roamer’ is the term I have in mind. It makes me want to talk about migratory roaming or about migrancy rather than migration. The international right of hospitality must address the roamers of our globalised society and reflect on the nature of migratory roaming, in particularly as a result of the violence that condenses around its itinerary.
Several arguments support this view. Firstly, the obsession with repressing so-called illegal migration and with identifying ‘false refugees’ that has ended up producing a ‘reversal of the right of asylum’ (according to French politologist Jérôme Valluy). Governments use the category of ‘refugee’ not to organise the reception of individuals fleeing the cruelty of their former existence but to de-legitimise whosoever does not meet specific formal criteria or whosoever fails to answer properly during interrogation.
Yet, this would not be possible if the official criteria were not so extraordinarily restrictive as to completely sever the procuring of refugee status from the right to free movement, while at the same time placing the sovereignty of states out of reach of any kind of serious challenge. Furthermore, they don’t register the conditions of civil or economic war, dictatorship or constraint on democracy, and environmental catastrophe, which are today at the root of roaming. Moreover, by denying these very realities and thereby harming those who experience them, the States transform the mass of migrants into refugees without refuge, hunted from one camp to another. The uses (and misuses) of the distinction force us to rethink the issue today, in order to find a solution which also comprises law.
However, as we see from current debates, this can be justified in different ways. A humanist conception would stipulate that free movement is as fundamental a human right as free speech or habeas corpus. It expects from states as little opposition to this right as possible. A liberal conception would express the same requirements in terms of ‘laissez-passer’ with regard to people, goods, capital and information. In its egalitarian variants, it would insist on the injustice in limiting the right to change residence to powerful and lucky individuals while excluding the poor and exploited. These reasonings lack neither force nor foundation but, to me, they don’t seem to tackle the specificity of contemporary migrancy because they neutralise the shock of state interventions targeting these situations of distress.
The rigorous application of notions regarding circulation, residence and asylum contained in the Universal Declaration of Human Rights seems much more fitting: on the one hand because of its consistent logic in correlating reversed rights (as for instance the right to emigrate and the right to return), and on the other hand due to its concern to avoid the creation of right-less individuals or non-persons.
However the big limitation of these notions lies in the fact that national belonging and territorial sovereignty constitute the absolute horizon of any devices protecting humans. In the current situation, meanwhile, there is a crying need to limit the arbitrariness of States by confronting it with legitimate and internationally recognised counter-powers. Therefore I suggest a move beyond these texts, one that gives expression to a right of hospitality. Following this principle, roamers (and those who help them) can have leverage over the ‘sovereign’ state itself, in order to prevent their dignity and security from being systematically trampled upon, as is the case today.
Still, it is necessary to point to one of the key sentences of 1948: ‘Everyone has the right to recognition everywhere as a person before the law’ (Article 6 of the Universal Declaration). Everywhere also means in immigration offices, during border controls, in a refugee camp, and conceivably in the bottom of an inflatable life-raft drifting over the sea. It includes those places where an authority has to fulfil its obligations, but also the places where the state must be resisted, due to its innate tendency to sacrifice human rights for ‘security’ and ‘identity’ requirements. The principle of principles is for roaming migrants to enjoy enforceable rights with regard to the laws and regulations of a given state. This also implies that they can defend themselves or be represented in ad hoc jurisdictions or common law jurisdictions.
Several consequences can be derived from this principle:
— Non-refoulement: not only is it forbidden for roamers to be violently repelled from one border to another, but they must be able to express their needs in conditions that respect their dignity, their bodily integrity, their individual autonomy and which takes into account the suffering they have gone through. The ‘burden of proof’ should not be put on the roamers but on the state that is hesitant to accommodate them.
— States and their police operating on the borders or inside the territory must not brutalise the roamers: a notion that, alas, covers a huge range of harm stretching from the violence inflicted on undocumented individuals to the creation of what Theresa May (then home secretary) called a ‘hostile environment’ for foreigners as well as their interment in camps and the separation of families.
— States must not establish lists of countries of origin whose nationals are a priori banned, on the basis of racial, cultural, religious or geopolitical criteria (notwithstanding the need to fend off terrorist threats which may use roaming as a cover).
— Military operations must not try to destroy smuggling networks or organisations at the risk of harming the roamers who are the victims of the latter and not their paymasters. A fortiori, decisions that forbid rescue operations or that try to thwart them should be viewed as complicity in crimes (possibly crimes against humanity).
— States must not externalise the management of the waves of migration and refugees in order to shirk from their own responsibility. In particular, they should not negotiate barter agreements with third countries that have been designated as ‘safe’ for the occasion. Though too shameful to admit, such agreements place them on the same level with the criminal ‘smugglers’ whose actions they condemn.
These provisions delineate limits or prohibitions rather than behaviours. This is consistent with the nature of juridical discourse when it tries to rectify an inflicted violence or an abuse. The goal is not to end the roaming of migrants or asylum seekers by decree, nor to eradicate the causes that have led to their exodus. Rather, the goal is to prevent state politics from transforming the exodus into a process of elimination under the guise of ranking its causes. Migrants left to roaming and those who help them should have law on their side in order to resist it. It may be little — but it may also be a lot.
There is no right to hospitality, because hospitality is a collective disposition emanating from freedom. It is a ‘shared responsibility’ (as proposed by legal theorist Mireille Delmas-Marty). But there ought to be a right of hospitality, a booming civic activity, according to the level of urgency. Going beyond the proposition by the German philosopher Kant of a ‘cosmopolitan law’ limited to the right of visit, it would generalise the fundamental norm that he enunciated: foreigners must not be treated like enemies. This state of affairs however is precisely the effect of a growing number of State policies against global migrancy.
Roamers are not a class. They are not a race. They are not ‘the multitude’. I would say they are a mobile part of humanity, suspended between the violence of an uprooting and the violence of a repression. It is only a fraction of the population worldwide (and a small one at that), but a highly representative one because its condition concentrates the effects of all the inequalities of today’s world, and because it bears what Jacques Rancière called the part of those who have no part ‘“la part des sans-part’). In other words, the lack of rights which needs to be bridged in order to make humanity rhyme with equality again.
It is a question of whether humanity expels from its womb a part of itself, or whether it integrates the rightful demands thereof into its political order and into its value system. It is a civilisational choice. It is for us to choose.
OpenDemocracy.net, August 18. Etienne Balibar is emeritus professor at Paris X Nanterre and Anniversary chair of modern European philosophy at Kingston University, London. His books include Reading Capital (with Louis Althusser, New Left Books 1970), Race, Nation, Class (with Immanuel Wallerstein, Verso, 1991), The Philosophy of Marx, Spinoza and Politics, Politics and the Other Scene (Verso, 2002), and We, the People of Europe? Reflections on Transnational Citizenship (Princeton UP, 2004). His latest publications are Equaliberty (Duke UP, 2014); Violence and Civility (Columbia UP, 2015), Citizenship (Polity, 2015) and Europe, crise et fin? (Edition Le Bord de l’Eau, 2016).
Want stories like this in your inbox?
Sign up to exclusive daily email
More Stories from Opinion