Can Human Rights and National Sovereignty Coexist? 9780367609658, 9780367609665, 9781003102717

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This volume addresses one of the most vital questions of modern law and justice: How can we reconcile the universal and transcendent value of human rights with the more local national communities that bring so much meaning and security to our lives? Tetsu Sakurai and Mauro Zamboni have gathered the most thoughtful and learned scholars from Asia, Europe, and America to consider these important questions from slightly different perspectives, yielding a subtle and valuable consensus on many points, while indicating interesting paths for future reflection. This study will be of great value to anyone who seeks global justice in our necessarily diverse and multipolar world. Mortimer Sellers, Regents Professor of the University System of Maryland and Former President of the International Association for Philosophy of Law and Social Philosophy (IVR) Migration and integration are very topical global challenges that raise a multitude of pressing legal and ethical questions. The anthology brings together ten essays by leading international scholars who explore the tension between human rights and national sovereignty from different perspectives. The combination of theoretical analysis and case studies makes reading extremely worthwhile for anyone interested in global migration issues. Frank Dietrich, Professor of Political Philosophy and Ethics, Heinrich Heine University Düsseldorf

Can Human Rights and National Sovereignty Coexist?

Looking at two of the key paradigms of the post-Cold War era—national sovereignty, and human rights—this book examines the possibilities for their reconciliation from a global perspective. The real or imagined fear of a flood of immigrants has caused and fuelled the surge of an amalgam of populist political forces, anti-immigrant movements, and exclusionist nationalism in many developed countries. In the last decade, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and asylum seekers and arguing for their civic and social integration into host societies. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries. How can the idea of universal human rights survive exclusionist nationalism that uses a populist, unscrupulous approach to its advantage? The contributors to this book explore the meaning of, and possible solutions to, this dilemma using a wide range of approaches and seek appropriate ways of dealing with these normative predicaments shared by many developed societies. Scholars and students of human rights, migration, nationalism and multiculturalism will find this a very valuable resource. Tetsu Sakurai is Professor of Contemporary Jurisprudence in the Graduate School of Intercultural Studies at Kobe University, Japan. Mauro Zamboni is Professor in Legal Theory at the Faculty of Law, Stockholm University, Sweden.

Global Perspectives on Immigration and Multiculturalisation

Migration Governance in Asia A Multi-level Analysis Edited by Kazunari Sakai and Noemi Lanna Can Human Rights and National Sovereignty Coexist? Edited by Tetsu Sakurai and Mauro Zamboni

Can Human Rights and National Sovereignty Coexist? Edited by Tetsu Sakurai and Mauro Zamboni

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Tetsu Sakurai and Mauro Zamboni; individual chapters, the contributors The right of Tetsu Sakurai and Mauro Zamboni to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-60965-8 (hbk) ISBN: 978-0-367-60966-5 (pbk) ISBN: 978-1-003-10271-7 (ebk) DOI: 10.4324/9781003102717 Typeset in Galliard by SPi Technologies India Pvt Ltd (Straive)

Contents

List of contributors Acknowledgements

ix x

Introduction 1 TETSU SAKURAI

PART I

Tension between national sovereignty and rights of immigrants

15

  1 Human rights to asylum and non-refoulement: rights of expulsi and suppliants in the system of natural and volitional law formulated by Hugo Grotius

17

RAINER KEIL

  2 Self-determination and immigration control: a critique

54

KEVIN IP

  3 International borders, immigration, and nondomination

73

JOSHUA J. KASSNER

PART II

State legislation and the statuses of immigrants

95

  4 Law-making to face the migration crisis: developing legislative policy (analysing the Swedish case)

97

MAURO ZAMBONI

viii Contents

  5 Can the law create discrimination? Migration, territorial sovereignty, and the search for equality

133

VALERIA MARZOCCO

  6 The gap between constitutional rights and human rights: the status of ‘foreigners’ in constitutional law and international human rights law

149

AKIKO EJIMA

PART III

Human rights and border control

169

  7 From formalist circumvention to substantive fulfilment: taking human and fundamental rights seriously in European migration policy

171

FREDERIK VON HARBOU

  8 Does international human rights protection trigger a Copernican revolution for immigration law?

186

STEFAN SCHLEGEL

  9 Migration, neighbourliness, and belonging

216

STEVEN SCALET

10 Reflective inclusiveness as a bridge between human rights and nationalistic attachment

244

TETSU SAKURAI

Conclusion 269 MAURO ZAMBONI

Index

274

Contributors

Akiko Ejima, Professor at School of Law, Meiji University Frederik von Harbou, Professor at the University of Applied Sciences Jena Kevin Ip, Assistant Professor at Government and International Studies, Hong Kong Baptist University Joshua J. Kassner, Professor of Philosophy in the Yale Gordon College of Arts and Sciences, University of Baltimore Rainer Keil, Lecturer at Faculty of Law, University of Heidelberg Valeria Marzocco, Professor at Law Department, University of Naples Federico II Tetsu Sakurai, Professor at School of Intercultural Studies, Kobe University Steven Scalet, Professor of Philosophy in the Yale Gordon College of Arts and Sciences, University of Baltimore Stefan Schlegel, Postdoc at Faculty of Law, University of Bern Mauro Zamboni, Professor at Faculty of Law, Stockholm University

Acknowledgements

The contributions that constitute this book have developed from a series of presentations and discussions at our research project, which has been carried out for the last five years. The authors comprise mainly jurisprudence scholars who composed one of the research groups of the extensive collaborative project named Research on the Public Policies on Migration, Multiculturalisation and Welfare for the Regeneration of Communities in European, Asian and Japanese Societies. The project has been supported by the Japan Society for the Promotion of Science (JSPS) as a Core-to-core Program (A. Advanced Research Networks) from FY 2016 to FY 2020. Considering that this book is a significant outcome of this major research project, the authors would like to thank the JSPS for their longstanding and generous support for our international collaboration, as well as Kazunari Sakai for his long and stable leadership and management as the project’s coordinator. The co-editors of the book are also grateful to the editors of the book series titled Global Perspectives on Immigration and Multiculturalisation, Kazunari Sakai and Kaoru Aoyama, for their continued support and advice, which have greatly facilitated the publication of the present book. Finally, we would like to thank Simon Bates, editor at Routledge, and Khin Thazin, his editorial assistant, for their help and cooperation with our publishing project from its planning stage.

Introduction Tetsu Sakurai

This anthology of legal and philosophical articles on contemporary largescale immigration is the second book of the series titled Global Perspectives on Immigration and Multiculturalisation. The book series is the product of a five-year joint research project called the Core-to-Core Research Programme on the ‘Public Policies on Migration, Multiculturalisation and Welfare for the Regeneration of Communities in European, Asian and Japanese Societies’ funded by the Japan Society for the Promotion of Science. This volume is meant to be the defining volume of the theoretical/philosophical framework for the entire proposed series. Since the COVID-19 pandemic and the Russian attack on Ukraine, the situation concerning international migration has undergone a drastic change. Due to the pandemic, the flow of migration has been blocked around the globe, although with the decline of the pandemic the flow is gradually returning. Moreover, the Russian attack particularly made the Visegrad countries change their strict immigration policy following the sudden influx of displaced people after the Syrian war. They now serve as a safe harbour for millions of refugees from Ukraine. Does this current picture alter the essence of the serious challenges that massive waves of immigration have raised in host societies? We do not think so, because a persisting antinomy between human rights and national sovereignty is never resolved by such recent changes. The concepts of human rights and national sovereignty are both children of modernity, but today they are particularly at odds with each other over immigration issues. The number of people who have attempted (or succeeded in) crossing national boundaries to seek a better life in relatively developed societies has increased in recent decades. Consequently, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and refugees and arguing for their civic and social integration into host societies. This side of the debate has been on the political defensive in recent years. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries in the last decade. These opposing political stances reflect the two established DOI: 10.4324/9781003102717-1

2  Tetsu Sakurai and contradictory principles of post-war international (migration) regimes: universal human rights and national sovereignty. Very importantly for us, these two contradictory principles have produced an apparent inconsistency between two critical components of contemporary citizenship: identity and rights. After the Second World War and Holocaust, it doubtlessly became increasingly imperative to locate the source and legitimacy of rights in the transnational, universalized order. Yasemin Soysal once argued that individual rights, which had been historically defined on the basis of nationality, were increasingly codified into a different scheme that emphasized universal personhood after the Second World War (Soysal 1994). In other words, ‘membership rights are recast as human, rights’, and concurrently the nation-state becomes just an implementer of a multitude of responsibilities that include the responsibility of providing individual rights (155). However, we must note that our universalistic, abstract ‘personhood’ can hardly provide us with any meaningful, ‘thick’ identity. Despite the universalistic foundation of our fundamental human rights, our identity is still ‘conceived of as particular and bounded by national, ethnic, regional, or other characteristics’ (8). Doubtlessly, the most decisive factor determining an individual’s life prospects is neither one’s education nor political beliefs, but one’s birthplace. This means that an individual’s life prospects are generally the result of a natural lottery, and therefore immigration and social integration, if successful, may bring about a radical improvement in life circumstances. This is exactly what propels the flow of immigrants from a less liberal, deteriorating region to a more liberal, thriving one. However, the fear (or even an imagined scenario) of a flood of immigrants has caused and fuelled the surge of an amalgam of the anti-immigrant movement, exclusionist nationalism, and populist political forces in many developed countries. In this difficult situation, the residents of developed societies are confronted with ‘a clash of solidarities’, that is, a serious dilemma between national, ethnic, and religious solidarities on the one hand, and the duties we universally owe to other individuals as fellow human beings on the other hand (Krastev 2017, 43). Therefore, we now must address how the idea of universal human rights can survive the exclusionist nationalism that uses a populist, unscrupulous approach to its advantage. Considering that we are struggling with the very delicate relation between human rights and national sovereignty, it is helpful to return to a classic and insightful definition of the nation by Benedict Anderson in his Imagined Communities as a starting point. As is well known, Anderson defines the nation as ‘an imagined political community—and imagined as both inherently limited and sovereign’ (Anderson 2006, 6). It is very suggestive here that he thinks that people see the nation as inherently sovereign. The idea of the nation was born in an age of ‘Enlightenment and Revolution’, and it was politically symbolic that the modern sovereign state guaranteed each nation the freedom of thought and religious faith because ‘even the most devout adherents of any universal religion were inescapably confronted with the

Introduction  3 living pluralism of such religions’ (Anderson 2006, 7; italics original). As Anderson shows, it is worth noting that the inherent connection between the idea of the nation and the sovereign state was a necessary condition for the establishment of and the respect for basic civil liberties.

The origin of the relationship between human rights and national sovereignty We should note that the close but strained relationship between the ideas of the nation and human rights was formulated during the French Revolution. It was Emmanuel Joseph Sieyès who first declared the importance of the two principles. Before the revolution, Jean-Jacques Rousseau advocated that the social contract created popular sovereignty that was directed by general will and simultaneously had absolute power over the members of society. Even though a man gains ‘civil freedom and property in everything he possesses’ through the social contract, a man in the civil state can never be said to be guaranteed fundamental human rights (Rousseau 2012, 176). Rousseau argues that: when the prince has said to him, ‘it is expedient to the state that you should die’, you should die, because it is only on this condition that he has lived in safety until then, and because his life is no longer solely a blessing of nature, but is a conditional gift of the state. (Rousseau 2012, 186–87) It is quite clear that individuals under Rousseau’s sovereign are not even assured the right to life. Citizens’ property rights are also very precarious in relation to the state because Rousseau insists that ‘with regard to its members the state is master of all their goods by the social contract’ (Rousseau 2012, 176). Sieyès published a political pamphlet titled What is the Third Estate in the beginning of 1789 just before the Estates General was summoned. It had a significant impact on the process of the French Revolution and disseminated many important legal ideas that the modern age takes as read. First, he defines a nation as a ‘body of associates living under common laws and represented by the same legislative assembly’ (Sieyès 2014, 47). This definition emphasizes the equal subjection of individuals to the common order and the common laws, and consequently excludes the nobility from the definition because of their privileges and exemptions.1 He thus flatly identifies the third estate with the nation and, moreover, declares that the nation must not subject itself to any form of positive law, not even a constitution (Sieyès 2014). He clearly states: [A] nation is independent of any legal forms; and no matter how it exercises its will, the mere fact of its doing so puts an end to positive law, because it is the source and the supreme master of positive law. (Sieyès 2014, 91)

4  Tetsu Sakurai Here Sieyès clarifies that the nation is the normative source of all forms of positive law and therefore must not be limited by them. Even though he rarely mentions the term ‘sovereign’ in his What is the Third Estate, his idea of nation obviously bears the sovereignty of the state, or to use Lembcke and Weber’s discreet expression, ‘sovereignty resides in the nation’ (Lembcke and Weber 2014, 22). In this sense, Sieyès creates a historical archetype of the idea of national sovereignty. As we saw above, Rousseau’s social contract ‘gives the body politic absolute power over all its members’ which is called sovereignty, and consequently a citizen in Rousseau’s civil state is not granted basic human rights, such as the right to life, against sovereignty. In contrast, even though Sieyès emphasizes the nation’s superiority over any form of laws, he makes it clear that the nation is subordinated only to natural law. The supremacy of natural law over sovereignty is crucially important here because this implies the precedence of citizens’ right to liberty and property over sovereignty particularly based on the development of natural law and natural right theories in the seventeenth and eighteenth centuries. This is why Sieyès explicitly acknowledges that the object of the law is ‘without doubt to prevent any infringement on someone’s liberty or property’ in his Essai sur les Privilèges published in 1788 (Sieyès 1822, 4). He even develops, so to speak, a libertarian idea possibly for the sake of contemporary bourgeoisie when he states: The law grants nothing. It protects what exists until what exists begins to be harmful to the common interest. These are the only limits set to personal freedom … The law, by protecting the common rights of every citizen, protects each citizen in all that he can become up to the point when his efforts tend to prove harmful to the rights of others. (Sieyès 2014, 111) It is clear that Sieyès prioritizes citizens’ individual right to liberty and property over sovereignty. As shown above, Sieyès establishes the supremacy of the nation over any form of laws because the nation is ‘the source and the supreme master of positive law’ and even has ‘the constituent power’ (le pouvoir constituant) (Sieyès 2014, 91). This indicates that he argues for a prototype of the idea of national sovereignty. I do not want to delve very deeply into the well-known distinction between national and popular sovereignty here.2 It suffices to confirm that Sieyès embraces both respect for the fundamental rights to liberty and property and the idea of national sovereignty in that he places the idea of the nation above all forms of positive law. As is very well known, Article 3 of the Declaration of the Rights of Man and of the Citizen in 1789 states that ‘the principle of all sovereignty rests essentially in the nation’ which clearly expresses the principle of national sovereignty. Article 5 declares that liberty consists in the ability to do whatever does not harm another; hence the exercise of the natural rights of each man has no other limits

Introduction  5 than those which assure to other members of society the enjoyment of the same rights. The idea of national sovereignty and the natural right to liberty in these articles clearly illustrate the immense influence of Sieyès’s legal ideas, particularly those developed in his What Is the Third Estate. Thus, we can see in a theory of the outstanding political writer during the French Revolution a formulation of the fateful twins of modernity, namely, fundamental human rights and national sovereignty. It is without doubt that the ideas of human rights and national sovereignty coexisted harmoniously under the modern law system of the late eighteenth century.

The modernists without a universalizing project? After more than two hundred years, we have witnessed an unprecedented scale of international migration into developed countries, and the relationship between the two ideas—human rights and national sovereignty—has become strained over immigration issues. The strain is based on the contemporary predicament that the national sovereignty of developed societies is so protective against the claims of fundamental human rights by those who strive to cross national boundaries to drastically improve their own life prospects. As I have indicated above, people’s life prospects are by and large the result of a natural lottery, and this innate inequality between societies drives the flow of immigrants from a less liberal, crumbling region to a more liberal, thriving one. This serious global inequality seems to be an aspect of a divergence between globalization and the idea of universalization, which Zygmunt Bauman anticipated at the end of the twentieth century. Universalization is, according to Bauman, ‘the hope, the intention, and the determination of order-making … on a universal, truly global scale’ and expresses ‘the will to make the world … better than it had been, and expand the change and the improvement to a global, species-wide dimension.’ By contrast, Bauman described globalization not as an intended large-scale movement, but primarily as ‘the global effects, notoriously unintended and unanticipated, rather than to global initiatives and undertakings.’ To put it differently, it is ‘von Wright’s ‘anonymous forces’, operating in the vast … ‘no man’s land’, stretching beyond the reach of the design-and-action capacity of anybody’s in particular’ (Bauman 1998, 59–60; italics original). If because of ‘the unqualified and unstoppable spread of free trade rules, and above all the free movement of capital and finances, the ‘economy’ is progressively exempt from political control’ and we average individuals really feel utterly helpless in influencing the movement and orientation of globalization, Bauman’s characterization of it as the ‘vast expanse of man-made wilderness’ (Bauman 1998, 60, 66) gets straight to the point.

6  Tetsu Sakurai Even though Ulrich Beck criticizes Bauman by pointing out ‘the formation of a cosmopolitan solidarity’, Beck also recognizes that ‘a growing number of people are for whatever reason prostrated by conditions they don’t have the means to understand and to tame or ignore’, particularly because of the widening income scissors and the individualization of existence in which ‘people have to accept individual responsibility for things that used be treated by the community’ (Beck 2000, 57, 152–54). Bauman accurately describes this predicament as the ‘new polarization’ of people, that is, ‘the process of a world-wide restratification, in the course of which a new socio-cultural hierarchy, a world-wide scale, is put together’ (Bauman 1998, 70). The technical development of transportation and the eventual appearance of the computer-served World Wide Web have now granted us the ability to transcend national boundaries with ease and to connect to various places as we wish. However, as Bauman points out, the ‘end of geography’, that is, the freedom of movement across borders, does not necessarily benefit all social strata. It is the difference in people’s mobility, ‘their freedom to choose where to be’, that separates the elites from the rest of contemporary society (Bauman 1998, 86). We should take note of the serious divide that globalization incessantly produces, that is, ‘the first world’ of ‘the globally mobile’ and ‘the second world’ of ‘the locally tied, of those barred from moving and thus bound to bear passively whatever change’ may be brought about in the locality (Bauman 1998, 88). If the non-elite residents of the second world lose their living quarters within their local community, many of them can easily turn into ‘displaced people’ and be driven to emigration in a quest for a new locality.

What drives the contemporary massive waves of immigration? The disparity in mobility that Bauman reveals raises a number of serious ethical problems. Here I want to focus on ‘an almost complete communication breakdown between the learned elites and the populus’, which indicates a crucial divergence between globalization and universalization. As indicated above, universalization is a constructive concept, more specifically ‘the modern intellect’s ambition’ to create a ‘universal order’. It is a declaration of ‘the intention to make similar the life conditions of everyone and everywhere, and so everybody’s life chances; perhaps even make them equal.’ (Bauman 1998, 59; italics original) Bauman’s rather egalitarian interpretation of the project of universalization is closely related to the concept of human rights. If the universalization project of the classic modern intellectuals had succeeded, the ideals of freedom, equality, and fraternity as initially endorsed in the Declaration of the Rights of Man in the French Revolution would have been realized for everyone, everywhere, which is never the case today. This perspective makes us note that ‘the huge disparity in welfare’ between societies must have contributed to the massive waves of immigration to developed countries in the past decade. In this context, we should take

Introduction  7 ‘welfare’ to mean various factors that are indispensable for each of us to lead a fulfilling life, namely, peace, health, medical care, education, religious faith, income, and job opportunities. If these factors are impossible to obtain within the area you live, it is a matter of course that you will want to cross geographical borders and search for alternative life prospects. The discrepancy between globalization and the universal values of human rights is a serious sign of the times. One of Bauman’s conspicuous merits in this context is that he reveals an indifference to the universalization project of most of the inhabitants of the first world down to the present day. We are well aware that public opinion in developed countries regarding the acceptance of large inflows of immigrants is not particularly favourable, and is serving as a tail wind for the nationalist parties in these societies. Thus, despite the progress of globalization, people in advanced societies are becoming increasingly less interested in the universalization of fundamental human rights. The phrase I noted, the ‘indifference to the universalization project of most of the inhabitants of the first world’, appears to reflect this recent development. Undoubtedly, Bauman is not the only one who has noticed the slow development of our concern about people’s human rights and welfare situations beyond national borders, notwithstanding the recent development of globalization. Although we do not generally object to the active cross-border movements of capital, information, and products, we are likely to be very sensitive to an extension of our moral obligations, not to speak of our legal obligations, beyond national boundaries (Bauman 2016). Therefore, another critical issue we want to address in this volume is whether it is ever consistent to oppose the project to promote and even universalize modern legal values such as human rights to freedom and equality, while we embrace these basic values in general terms and enjoy them ‘as citizens of unequally free and prosperous societies’ (Krastev 2017, 29). We should ask if, in reality, people can consistently be ‘the modernists without a universalizing project’ who will enjoy the modern values of freedom and equality without hesitation, on the one hand, yet pay little attention to universalizing these values beyond political borders, on the other. In this age of cross-border tension, we have here collected ten essays by experts in philosophy of law or constitutional law from Europe, East Asia, and the United States. The authors explore the meaning of and possible solutions to this serious dilemma using various approaches from the history of legal ideas to constitutional law and seek an appropriate way of dealing with the normative predicaments shared by many developed societies.

Synopsis of the chapters Part I: Tension between national sovereignty and rights of immigrants The first chapter, ‘Human Rights to Asylum and Non-Refoulement: Rights of Expulsi and Suppliants in the System of Natural and Volitional Law

8  Tetsu Sakurai Formulated by Hugo Grotius’ by Rainer Keil, claims that Grotius is not only a precursor of the modern idea of subjective rights as a moral entitlement of a person (qualitas moralis personae), but also of individual rights to asylum and non-refoulement. Grotius, who was himself a refugee after having escaped from his life imprisonment in Loevestein Castle, was as a matter of course enthusiastic for the development of a system of legal protection including asylum procedure, admission of expelled persons, and ‘an exception from extradition for persons suffering from undeserved enmity in their country of origin’ (p. 17). According to Keil, Grotius provides reasons to support ‘modern rights-based approaches by claiming the existence of original rights of migrants fleeing existential danger’ (p. 44) and makes us aware of what is still missing in contemporary international institutions, that is, adequate guarantees of a fundamental right to asylum. Chapter 2, ‘Self-determination and Immigration Control: A Critique’, by Kevin Ip begins with a thesis that political self-determination for all states is a fundamental principle in the existing international order, and examines some contemporary theories defending the right of immigration control as an integral part of self-determination. The chapter explores Iris Young’s understanding of collective self-determination, namely, that self-determination should be understood as a form of non-domination. According to Ip, on the one hand, this interpretation of political self-determination would grant states and any political community a right against settlement or colonization, which is a form of domination by external agents. On the other hand, the same model of political self-determination significantly constrains the state’s right to unilaterally close its borders to foreigners. Since our world is characterized by profound and pervasive injustice, it is even necessary to ‘circumscribe the affluent states’ right to exclude potential migrants’ who are seriously affected by their immigration policy (p. 67). An important contribution of this chapter is that it attempts to strike a delicate balance between a state’s right to control immigration based on the value of non-domination and the freedom of movement of potential international migrants. In Chapter 3, ‘International borders, Immigration and Nondomination’, Joshua Kassner argues that the republican concept of freedom as nondomination has an important implication for the legitimacy of international borders. He claims the primacy of ‘freedom as nondomination’ over ‘freedom as non-interference’ as an interpretation of freedom as a moral and political value because a liberal-minded, benevolent despot who satisfies the requirements by the latter freedom does not meet what is demanded by the former. According to Kassner, ‘[u]nder his rule, a citizen’s “area of liberty” depends on the despot’s will, thus their freedom depends on the arbitrary will of another’ (p. 75). He notes a significant two-sidedness of international borders, that is, they not only contribute to the domination of millions around the world, but also protect ‘political communities from domination by safeguarding their collective right to political self-determination’ (p. 73). He then submits a compelling suggestion that ‘the policies the state pursues to protect distant others from domination must be (at least) proportionate to

Introduction  9 the discretion exercised by the state in its immigration and border control policies’ (p. 88). His application of what I would call ‘proportionality thesis’ above to the US immigration and border control policies towards the Northern Triangle (El Salvador, Guatemala, and Honduras) is very instructive, particularly from the perspective of republican thought. Part II: State legislation and the statuses of immigrants Mauro Zamboni in his chapter, ‘Law-Making to Face the Migration Crisis: Developing Legislative Policy (Analysing the Swedish Case)’, proposes a very interesting legislative policy. As Swedish lawmakers faced the dramatic increase in migratory fluxes to their country during the last decade, they have, as a matter of course, adopted a more restrictive approach to ‘preserve’ the Swedish welfare state. Zamboni claims the necessity and importance of choosing an alternative model of legislative policy that ‘shifts legislative law-making processes closer to the judicial system’ to minimize the damage of the unprecedented influxes (p. 98). Having noted serious flaws of the administrative and statutory legislative models, Zamboni defends the judicial legislative policy that will ‘allow judicial bodies to create a regulatory framework based on the legal principles discernible in both scattered ordinary legislation and non-national legal sources’ because he perceives structural and institutional compatibility ‘between the judicial bodies and the migration phenomenon they should regulate with their activist approach to a hypothetical, scattered, and fragmented legislation’ (p. 113). This chapter points us in a promising direction in which the judicial legislative model makes the requirement of flexibility to the particular cases of migration compatible with the stability of judicial judgments within its legal framework of principles. In Chapter 5, ‘Can the Law Create Discrimination? Migration, Territorial Sovereignty and the Search for Equality’, Valeria Marzocco points out that the historical concept of ‘a right to migrate (ius migrandi)’ has two facets because international migration has two distinct aspects, that is, emigration and immigration. While the right to emigrate has generally been considered an unrestricted right typically confirmed by Article 12 of the International Covenant on Civil and Political Rights, immigration necessarily faces an important obstacle, that is, entry control by the sovereignty of a receiving state. The dual character of the right to migrate is, however, reflected in the diametrical direction the right could indicate. The right to migrate not only contributed to the cosmopolitan ideal of a human community, but also formally justified colonialism and imperialism claimed by great powers. Moreover, while historically the right to migrate has not been seen as a comprehensive universal human right, the legal regulation of international migrants has increasingly become ‘a question of administrative practices’ in recent decades (p. 142). Marzocco finally suspects that the concept of citizenship in contemporary society even functions not so much as a provider of social equalities, but as ‘a multiplier of hierarchies that are capable of endorsing the increasingly stratified and mobile perimeters of selection’ on a global scale (p. 144).

10  Tetsu Sakurai Akiko Ejima in her chapter, ‘The Gap between Constitutional Rights and Human Rights: The Status of ‘Foreigners’ in Constitutional Law and International Human Rights Law’ (Chapter 6), focuses on a condition of human rights protection of non-nationals in Japan. She first notes that how the legal system of a country defines the scope of ‘nationals’ is crucially important for the assurance of fundamental rights of non-nationals. In this respect, the drafting process of the present Japanese Constitution attracts our attention when we note how the Japanese government endeavoured to exclude particularly Korean people in inland Japan who had been treated as Japanese subjects from the category of Japanese nationals. Ejima also specifically refers to the fact that the Japanese government has been reluctant to legislate an anti-discrimination law in general or an anti-racial discrimination law, and has left its Technical Intern Training Programme to function as an opportunity to recruit low-paid immigrant workers and rarely as a systematic programme of their capacity-building. Finally, she emphasizes the practical importance of the state reporting procedure conducted by the Human Rights Committee of the International Covenant on Civil and Political Rights, which functions as a ‘pluralistic, non-hierarchical, and circulatory process’ (p. 163). Part III: Human rights and border control Chapter 7, ‘From Formalist Circumvention to Substantive Fulfilment: Taking Human and Fundamental Rights Seriously in European Migration Policy’, by Frederik von Harbou declares in the beginning that fundamental human rights should be considered as principles, not merely legal rules that can be rightfully evaded in certain circumstances. Moreover, he points out that fundamental rights also express the most fundamental values or dimensions of the political community, which operate ‘on an even more fundamental level than principles’ in Germany and asks if it is possible to apply the idea of an ‘objective order of values’ to the European level (p. 178). His answer is in the affirmative because the EU has explicitly committed itself to fundamental and human rights as its founding ‘values’ as Article 2 of the Treaty of European Union indicates. According to von Harbou, as the EU and its agencies become crucially important players in terms of migration and asylum, the protection and implementation of migrants’ fundamental rights has been increasingly neglected, and this is because the idea of human rights as an ‘objective order of values’ has not yet been applied at the EU level. Stefan Schlegel, in his ‘Does International Human Rights Protection Trigger a Copernican Revolution for Immigration Law?’ (Chapter 8), describes the incorporation of human rights into immigration law as a slowset revolution that can be compared to the Copernican Revolution. When the idea of human rights begins to influence immigration law, according to Schlegel, it sets off an ‘emancipatory dynamic’ in which ‘individual and justiciable rights towards a state are the main currency of emancipation … that guarantees a degree of individual security and autonomy’ (p. 186). He

Introduction  11 simultaneously mentions some backlashes faced by the emancipatory dynamics. The author sees the contemporary conflicts between the guarantee of human rights and the backlashes of ‘the slowly crunched prerogative of discretionary control of immigration’ as an ‘ongoing wrestle between two ultimately incompatible perspectives and political goals’ (p. 205). In conclusion, he solemnly predicts the outcome of the long contradiction. While most of the chapters in this book focus on the legal or political framework concerning international migration, Steven Scalet’s chapter, ‘Migration, Neighbourliness, and Belonging’, addresses how old-timers should ethically correspond to newcomers in local communities. Instead of theorizing the justice of immigration, borders, treaties, or refugee policy and arguing for the kinds of claim rights and duties people should have with regard to international migration, Scalet concentrates on the way in which old-timers and newcomers from another country should behave towards one another in a local area. He contrasts the justice of immigration, a sphere of law and policy, with the ethics of local interactions, a sphere of personal relationships, in which he entirely engages in the chapter. There is no doubt that he deliberately stays away from the discourse of justice on immigration. He has a very good reason for doing so because the process in which a foreigner is granted citizenship and the related rights and duties of the receiving country is completely distinct from the process in which an immigrant is accepted as a member of the society, and it is clear that the former does not necessarily guarantee the success of the latter. Scalet indicates that the simple implementation of rules and policy without the ethics of local interaction between old-timers and newcomers can have disastrous consequences for the receiving society. The final chapter of the book, ‘Reflective Inclusiveness as a Bridge between Human Rights and Nationalistic Attachment’, centres on the idea of reflective inclusiveness, which is not itself a social policy or legal rule. It is not merely a matter of following rules, but rather of constructing a virtue of character. More specifically, reflective inclusiveness is your own attitude, theoretically or practically, to respect the rights to liberty and equality of other persons, however different their cultural backgrounds may be from yours, if your own legal, political, and economic status is supported and protected by the idea of universal human rights. This implies that the requirement of reflective inclusiveness is applied to both sides of political and cultural boundaries should we want to appease the cultural and moral confrontations we are facing, particularly in host societies. On the one hand, host societies are expected to include and embrace distressed newcomers who have clear differences in religion or worldview, yet follow their home society’s cultural forms of life. On the other hand, asylum seekers and international migrants who need to be admitted and included in liberal democracies should respect and comply with the moral and legal values the host societies attach utmost importance. As can be seen from above, the authors share the same perception that contemporary societies have faced the critical dilemma between the idea of human rights and the exercise of national sovereignty when encountering

12  Tetsu Sakurai refugees and international migrants. The contributors or part of them have met in person or online and discussed the points of each other’s chapters seven times before publication. The approaches they take are various, but the goal they envision is always to reduce the tension between the two values. Our observations and prescriptions developed in this collection are, we have to admit, still far from decisive or indisputable. However, the inquisitive attitudes the readers can surely perceive from our chapters should be most important to advance towards efficient ways to settle the conflict of values we address throughout this book.

Notes 1 It is worth mentioning that he never refers to any race, creed, or national origin when defining the French nation. This instantly reminds us of a definition of nation by Dominique Schnapper, a contemporary French sociologist. According to Schnapper, ‘the nation is defined by its ambition to transcend particular memberships, namely, biological, historical, economic, social, religious, or cultural by the citizenship, ambition to define the citizen as an abstract individual without identification or particular qualification on this side of or beyond all its concrete determinations’ (Schnapper 1994, 73; my translation). 2 Sieyès has been considered to be a typical advocate of the theory of national sovereignty as against that of popular sovereignty (Bastid 1978; Hont 1994). Lucia Rubinelli opposes this traditional interpretation and argues that Sieyès never relied on the notion of sovereignty but on the idea of constituent power to describe the political authority of the people (Rubinelli 2019).

Bibliography Anderson, Benedict. 2006. Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Bastid, Paul. 1978. Sieyés et sa pensée. Genève: Slatkine. Bauman, Zygmunt. 1998. Globalization: The Human Consequences. Cambridge: Polity Press. Bauman, Zygmunt. 2016. Strangers at Our Door. Cambridge: Polity Press. Beck, Ulrich. 2000. What Is Globalization? Cambridge: Polity Press. Hont, Istvan. 1994. ‘The Permanent Crisis of a Divided Mankind: ‘Contemporary Crisis of the Nation State’ in Historical Perspective.’ Political Studies. 42(1): 166–231. Krastev, Ivan. 2017. After Europe. Philadelphia: University of Pennsylvania Press. Lembcke, Oliver W. and Florian Weber. 2014. ‘Introduction to Sieyès’s Political Theory’. In Emmanuel Joseph. The Essential Political Writings. Edited by Oliver W. Lembcke and Florian Weber. Leiden and Boston: Brill. Rousseau, Jean-Jacques. 2012. The Major Political Works of Jean-Jacques Rousseau. Translated and edited by John T. Scott. Chicago and London: The University of Chicago Press. Rubinelli, Lucia. 2019. ‘How to Think beyond Sovereignty: On Sieyes and Constituent Power.’ European Journal of Political Theory. 18(1): 47–67. DOI: 10.1177/1474885116642170. Schnapper, Dominique. 1994. La communauté des citoyens. Paris: Gallimard.

Introduction  13 Sieyès, Emmanuel Joseph. 1822. Qu’est-ce que le tiers état précédé de l’essai sur les privilèges. Paris: Alexandre Correard. Sieyès, Emmanuel Joseph. 2014. The Essential Political Writings. Edited by Oliver W. Lembcke and Florian Weber. Leiden and Boston: Brill. Soysal, Yasemin. 1994. Limits of Citizenship. Chicago: The University of Chicago Press.

Part I

Tension between national sovereignty and rights of immigrants

1 Human rights to asylum and non-refoulement Rights of expulsi and suppliants in the system of natural and volitional law formulated by Hugo Grotius Rainer Keil Introduction Some legally binding texts establish an individual right to asylum, while others have merely established an obligation to non-refoulement. Within general international law, asylum remains a matter of sovereign states’ rights and duties to one another rather than their duties to individuals. According to de Wilde, ‘a standard interpretation’, as opposed to other views, identifies ‘Grotius as the founder of the modern concept of asylum’ (de Wilde 2018, 473). Grotius, who was a refugee himself after having escaped from prison ‘hidden in a book chest’ (de Wilde 2017, 429), developed a legal system of protection including an asylum procedure, the admission of expelled persons, a legal status for admitted individuals, and an exception from extradition for persons suffering from undeserved enmity in their country of origin. Some authors claim that the shaping of modern individual rights to asylum and non-refoulement originated in the seeds and germs of ideas Hugo Grotius sowed and helped to sprout (Chetail 2016, 909; Landau 1999, 318–19). If such claims are justified, as I shall try to show, clarifying the meaning of Grotius’s work might help us understand the foundation of current views on asylum and non-refoulement and stimulate a critical assessment. In this chapter, I intend to demonstrate the importance of ideas in Grotius’s work as part of the foundation for a modern concept of asylum by critically investigating arguments used to contest the relevance of Grotius’s thought for the individual right to seek and be granted asylum. Methodically, I shall not merely historicise but, after considering the historical contexts, go further by examining the philosophical reasoning in Grotius’s texts. Indeed, despite the risk of inappropriately projecting an early 21st-century view in the interpretation, which I shall try to curb by working closely with and providing context for Grotius’s text on The Law of War and Peace, there is another, greater danger. As Stefan Kadelbach convincingly stated, ‘merely to historicize some four hundred years of exegesis would be bound (to borrow from an exhortation by Ernst Gombrich) to miss a museum’s paintings while checking the catalogue’ (Kadelbach 2017, 134). I shall, as Kadelbach put it, dare an ‘interpretive abstraction’ that somewhat keeps in mind the ‘contextual DOI: 10.4324/9781003102717-3

18  Rainer Keil perspective’ (Kadelbach 2017, 134). A thorough look at positions that deny a strong concept of asylum and Grotius’s detailed discussion of matters of migration, reception, refuge, and protection against extradition confirms that Grotius’s system provides clearly formulated elements of asylum as a concept and the foundational elements of a theory of human rights on which to base parts of the modern concept. To demonstrate the strength of Grotius’s work as a foundation and inspirational source for discussing the concept of asylum, I shall proceed as follows: In Section 1, I shall provide a brief overview of the current international law of asylum. Then I shall discuss arguments against the claim that Grotius provided a concept of asylum law that incorporates individuals’ rights. In Section 2, I shall discuss the strength of the objection that Grotius treated asylum in the context of obligations between states and the possibility that sanctions imposed by other states are intended to enforce international duties, not to protect individuals. In Section 3, I shall examine the connections between Grotius’s involvement in the legitimisation of commercial as well as colonial endeavours and his reasoning, and the extent to which those connections weaken the strength of his argument in our view. Next, in Section 4, I shall show how Grotius argued for the admission of Sephardic Jews. After this, in Section 5, I shall explain more precisely how Grotius saw the legal position of expulsi in his main work. In Section 6, I shall address whether Grotius’s work did or did not exclude political persecution from protection. I shall also discuss whether the political nature of the decision to grant asylum speaks against a legal perspective and an individual right to asylum. Section 7 will show that the assumption of a comprehensive concept of asylum is legitimate despite the common separation of the dimensions of permission to settle expelled persons and protection against extradition. In Section 8, I will discuss the significance of the fact that in his De Jure Belli ac Pacis of 1625, Grotius did not yet have a concept of human rights. A closer look at each of the objections will make it evident that the conclusions suggested by these arguments show that the authors of those arguments miss the lucid wording and neatly worked out foundational structure of Grotius’s work. For this, despite the history that separates us from him, I shall take Grotius hermeneutically seriously as a distant partner in the dialogue about an elementary problem of law. Finally, in Section 9, I shall briefly show that the reasoning of Grotius and his positions, carefully taken into consideration, inspire interventions into discussions of our days. Thus, this chapter contributes to a deeper understanding of contemporary political and legal debates about restrictions and political discretion in view of refugee problems.

1.1 Relevance: asylum and non-refoulement in current international law Although some scholars still contest such claims (Hathaway 2005, 36), most legal experts recognise the principle of non-refoulement as a rule of international customary law (Kälin, Caroni, Heim and Lukas 2011, 1345, paragraph

Human rights to asylum and non-refoulement  19 no. 31), with some ascribing to it the character of ius cogens (Allain 2001, 557). As opposed to this, rather few participants of the legal discourse have dared to count asylum among the general principles of international law (Gil-Bazo 2015, 28). Those whose opinions prevail emphasise the position that an individual right to be granted asylum has no basis in general international law (Ray 2013, 1239). General international law, as an implication of territorial sovereignty, supposedly only provides for a right of states to grant asylum to those who successfully fled to their respective territory (Asylum Case, Colombia vs Peru, Judgment of 20 November 1950, ICJ Reports 1950, 266, at 274). Article 14 of the Universal Declaration of Human Rights postulates ‘the right to seek and enjoy in other countries asylum from persecution’. This document, not a treaty, adopted on 10 December 1948 as Resolution 217 (III) Section A of the United Nations General Assembly, is usually considered not as directly binding as law but rather as a supporting document informing the obligations of customary or treaty law (Hannum 1998, 147–48). However, several regional human rights treaties provide for asylum as a fundamental right. Article 22 paragraph 7 of the American Convention on Human Rights of 22 November 1969 (1144 UNTS 123) stipulates: Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes. Paragraph 8 strictly forbids refoulement. Article 12 paragraph 3 of the African Banjul Charter on Human and Peoples’ Rights of 27 June 1981 (1520 UNTS 217) provides for an individual ‘right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions’, followed by two paragraphs that limit expulsion and forbid mass expulsion. Article 6 paragraph 1 of the Treaty on European Union (2012, Official Journal C 326/13) in conjunction with Article 18 of the Charter of Fundamental Rights of the European Union of 26 October 2012 (2012, Official Journal C 326 / 391) provides for a ‘right to asylum’. It ‘shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees’ and in accordance with primary EU legislation. Many national constitutions stipulate the protection of asylum (Foster and Klaaren 2013, 416–17); some provide for a fundamental and ‘subjective right’ (Foster and Klaaren 2013, 416–17), including those of the Federal Republic of Germany, the French Republic, and the Italian Republic (Lambert, Messineo, and Tiedemann 2008), while others still do not. Many provisions in treaties provide for a duty to non-refoulement. Among them are Article 33 of the Convention on the Status of Refugees of 28 July 1951 (189 UNTS 150) and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (1465 UNTS 85). These and other treaties differ mostly in their

20  Rainer Keil prerequisites for granting the protective legal consequences of this principle. A distant look at Grotius’s work and his elaborated concept for dealing with the matter might inspire illumination of the weight of the reasons that speak for the establishment, permanent acceptance, and support of principles of, or perhaps even individual rights to, non-refoulement or asylum.

1.2 Asylum: is it only a matter of inter-state legal relations in Grotius’s work? His work De jure belli ac pacis, Paris 1625, primarily treated two aspects of the protection against coercion of foreigners in danger in their home country. For one of those aspects, the protection of persons suffering from undeserved enmity against extradition, Grotius himself used the term asylum, or, more precisely, aſylorum exempla (Grotius 1913, 369). The other is the protection of expulsi, persons who forcibly left their home country, in the form of admission to their settlement. Grotius used the term perfugium for exiles (Grotius 1913, 582) and receptum specifically for expulsi (Grotius 1913, 120) in this context. For our purposes, we can subsume such protection under ‘asylum’. We follow the comprehensive and clear definition in Article 1 of the Resolution of the Institut de Droit International adopted in Bath on 11 September 1950. Asylum means ‘the protection which a State offers to an individual within its territory or in another relevant territory subject to certain of its organs who seek such protection’ (English translation by Hailbronner and Gogolin 2013). It usually protects foreign nationals and can comprise components such as admission, an asylum procedure, permission to settle, the granting of special legal status, and protection from extradition and refoulement. Elke Tießler-Marenda published a book asserting that Grotius was not the founder of modern political asylum in international law and that no one can speak of any such thing as a claim to asylum. According to her, Grotius discussed the reception of expelled persons only based on the interests of the concerned states; the interests of individuals supposedly were not part of the foundation of his reasoning (Tießler-Marenda 2002, 250). Similarly, the exception of suppliants from the inter-state duty to extradition assumed by Grotius concerned the relations between the state with the right to punish and the state of refuge, not the individual, as such (Tießler-Marenda 2002, 250). To what extent does Grotius’s work support this assertion? For investigating this, we should first look at whether the framework— Grotius’s ‘Law of war and peace’—is limited to international aspects of law. Grotius discussed both major dimensions of asylum within the framework of a treatise on rights within the law of war and peace. In the beginning of the Prolegomena, he emphasised how often authors had addressed the municipal laws of diverse states, whereas, thus far, no one had addressed the law concerning mutual relations of states and their rulers in a comprehensive manner, declaring that the ‘welfare of mankind demands that this task be accomplished’ (Grotius 1925a, 9). This proposition seems to suggest an

Human rights to asylum and non-refoulement  21 international orientation of the treatise at a systematically central point. However, a closer look leads to a different conclusion. Grotius, the supposed father of public international law (critical: Grewe 1984), wanted to refute the ‘error’ that standards of justice are only applicable internally, not in regard to states and their rulers (Grotius 1925a, 17). He did so by looking at the commonalities of the philosophical roots of internal and inter-state relations and by looking for a philosophical radicalisation of the related questions. For Grotius, war, like its opposite, peace, was such a fundamental structure of social phenomena that it was not limited to relations among states or political entities. When defining ‘war’, he first quoted Cicero—probably Book I of De officiis (Cicero 1913, 37)—who had defined war as ‘contending by force’ (Grotius 1925a, 33). Next, he went on to support the usage of the word ‘war’ as a status (Grotius 1913, 1), namely as ‘the condition of those contending by force’ (Grotius 1925a, 33). He emphasised the etymological origin of bellum (war) in duellum (duel), for which the splitting into two was characteristic (Grotius 1925a, 33–34). Therefore, war, according to him, concerned controversies of ‘those who are not held together by a common bond of municipal law’ (Grotius 1925a, 33). Such ‘controversies may arise among those who have not yet united to form a nation and those who belong to different nations, both private persons and kings’ (Grotius 1925a, 33). ‘[S]ubjects of jus gentium are states, rulers, and private persons alike’ (Kadelbach 2017, 141). War and peace as subjects of the treatise, therefore, do not give it an exclusively international orientation (Härter 2004, 242). Second, we have to investigate whether Grotius treated the reception of forcefully expelled persons only as a matter of the law of international relations or also as one that fulfilled the purpose of protecting individual human beings. Grotius wrote in Book II, Chapter II, Section XVI of De Jure Belli ac Pacis: Furthermore a permanent residence ought not to be denied [deneganda non eſt] to foreigners who, expelled from their homes, are seeking a refuge [receptum quærunt], provided that they submit themselves to the established government and observe any regulations which are necessary in order to avoid strifes. (Grotius 1925b, 201–2; Latin: Grotius 1913, 120) Tießler-Marenda (2002, 211) brought forward reasons for an international understanding of the underlying legal relationship. The dominating aspect she claimed was amicitia (international friendship). Grotius said in Book III Chapter XX, Section XLI: ‘It is not contrary to friendship to admit individual subjects who wish to migrate from one government to another … Under the same principle I include the granting of asylum [perfugium] to exiles’ (Grotius 1925c, 819–20; Latin: Grotius 1913, 582). A state could admit people banned as exiles and those forced to leave as expulsi. Indeed, the legal

22  Rainer Keil concept of international friendship as a criterion for a state’s right to admit foreigners explains well the range of exceptions: ‘It is … unpermissible to admit those who, by reason of an oath or in some other way, are under an obligation of service or of slavery’ (Grotius 1925c, 820). Moreover, those trying ‘to escape a justly deserved penalty’ (Grotius 1925c, 820) may not be received. Such a focus on the rights of governments, not of individuals, also harmonises well with legal tendencies of Grotius’s lifetime of early modern history (Härter 2011, 40): ‘The basic structure of the asylum law is already known: the right to grant asylum is regarded as the right of the sovereign prince or the sovereign state. The persecuted individual has no right to be granted asylum’ (Kimminich 1978, 41; my translation). This fits well with the widely spread opinion that ‘in the Grotian conception of international law, the individual is not regarded as an independent legal subject, capable of having obligations and rights, but only as a legal object’ (Vermeulen 1983, 380–81). However, this view is not comprehensive. We do not need to exclude the legal perspective of individuals forced to flee when we read Grotius. The admission of expelled persons had legal dimensions other than those of international law. Reiterating what we found earlier in this section, we know that for ‘Grotius the jus gentium consisted in the rules covering all relations taking place outside the bonds of municipal law’ (Vincent 2003, 243–44). Municipal law does not bind a state or foreign individuals who have not yet entered its territory. Thus, their legal relationship is part of the theme of the work. In Book II, Chapter II, Section XVI, Grotius did not primarily talk about international dimensions, but used a wording that framed a relation between the person responsible for the possible state of admission on the one hand and the persons expelled from their foreign country of origin on the other. He did not talk about what is allowed to a state without violating another state’s rights or friendly relations between states but about an obligation in another relation, namely, the state’s duty (Reale 1938, 509; Gibney 2018, 3) to humans of foreign origin. ‘[R]esidence ought not to be denied to foreigners who, expelled from their homes, are seeking a refuge’ (Grotius 1925b, 201). Careful about his wording, Grotius did not formulate this by mistake. Rather, the structure of his text seems to suggest proceeding this way by focusing on and unfolding the reservation of the original rights of all individual persons against the partial territorial rights of political entities as they came about with the end of the state of nature. Chapter II of Book II deals with things that were originally common to all humankind (Grotius 1925b, 186), and this concept is relevant in two ways. First, some things could not become objects of exclusive and private ownership (Grotius 1925b, 190–91). All others ‘seem to have been distributed to individual owners with a benign reservation of the primitive right’ (Grotius 1925b, 193). ‘Hence it follows … that in direst need the primitive right of user revives, as if community of ownership had remained, since in respect to all human laws—the law of ownership included—supreme necessity seems to

Human rights to asylum and non-refoulement  23 have been excepted’ (Grotius 1925b, 193). As a second reason for the legitimacy of the use of goods belonging to others, in Book II Chapter II paragraph XI about innoxia utilitas, Grotius states, ‘A second right is that of innocent use’ or of usefulness without harmful effects (Grotius 1925b, 196; Latin, in the genitive case: Grotius 1913, 117), implying there is a moral and legal duty to help by sharing with another what ‘can be spared without annoyance to the giver’ (Grotius 1925b, 196). Grotius treated the duty to admit expelled foreigners within the chapter where he first introduced and later applied these considerations to groups of cases. Such groups of cases included the aspect of a quality of a stream to have remained common property ‘so that everyone may drink or draw water from it’ (Grotius 1925b, 196) or cross the river under foreign rule (Grotius 1925b, 196). They included the right of passage over land and rivers (196–200), rights to temporary sojourn (201), and the duty to admit expelled foreigners (201–2). The duty is not one to the state of origin of foreigners but to the expelled individuals themselves. Although Grotius later distinguished ‘ownership’ from ‘sovereignty’, he discussed both in the same chapter about the original acquisition (Grotius 1925b, 192–93); both private property and public imperium originated in divisio rerum and, thus, occupatio (Tießler-Marenda 2002, 188), which suggests that Grotius intended the reservation to apply to public authority as well. Therefore, the duty to people expelled from their foreign country of origin was also one of the possible states of refuge. All of this speaks against a mere inter-state context of the discussion of the admission of expelled foreigners: ‘the idea … that states were exclusively the subjects of international law, and individuals merely its objects, Grotius would have found a peculiar one’ (Vincent 2003, 243). If we look at recent developments suggesting an emerging emphasis on the rights and duties of individuals in international law (Peters 2016), Grotius’s view on the protection of expelled persons might be less distant than it appeared at first. Third, we have to investigate whether Grotius treated asylum as an exception to the duty to extradite only with the aim of balancing legal duties among states. I think I can show that thorough reasoning leads us to the result that Grotius intended to protect individuals as well. In Section IV of Chapter XXI, ‘On the sharing of punishments’, Grotius postulated that it is the duty of political entities to either punish or extradite persons who have been convicted of a crime elsewhere. The passage is worded as follows: Since … states are not accustomed to permit other states to cross their borders with an armed force for … exacting punishment, and since such a course is inexpedient, it follows that the state in which he who has been found guilty dwells ought to do one of two things. When appealed to it should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal. (Grotius 1925b, 527)

24  Rainer Keil It is in this context that Grotius addressed his view of asylum in Section V. The commonly quoted English translation by Francis W. Kelsey renders the most central part of this wording: The view just stated is not inconsistent with the much discussed rights of suppliants and cases of asylum. These are in fact for the benefit of those who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men. (Grotius 1925b, 530) Grotius placed Chapter XXI on the sharing of punishments and the previous Chapter XX on punishments in Book II of his treatise, which, as Chapter I clarifies, treats the causes of war, that is, the reasons justifying war (Grotius 1925b, 169). All of this seems to support the view that emphasises the interstate aspects of asylum. Additionally, it seems that Grotius only considered the interests of the state of origin and the state of residence, where he limited the range of the duty to extradite to ‘crimes that affect the public weal [quæ statum publicum tangunt] or that manifest extraordinary wickedness. It has become customary to ignore lesser crimes’ (Grotius 1925b, 533; Lat.: idem 1913, 371). One could get the same impression where he allowed governments to grant asylum in exceptional cases to ‘robbers and pirates’ if that might lead to peace and rehabilitation (Grotius 1925b, 533). De Wilde expressed a presently prevailing view about asylum in Grotius’s work as follows: ‘It is important to note that Grotius …, in De iure belli, refers to the right of states to admit asylum-seekers, not the right of asylum-seekers to be admitted’ (de Wilde 2018, 492). The view that weakens asylum and almost nullifies anything that might come close to a legal position of individuals appears even stronger if one reads German translations of the first sentence of the passage on asylum. Where the Latin original states, ‘[n]eque obſtant illa adeo prædicata ſupplicum jura & aſylorum exempla’ (Grotius 1913, 369), the most common German translations render: ‘Dem stehen auch die sogenannten Rechte der Schutzflehenden und die Privilegien der Asyle nicht entgegen’ (Grotius 1950, 370; idem 1869, 116). Further translated into English, this would mean something like this: ‘This is not inconsistent with the so-called rights of suppliants and privileges of asylums’ (my attempt to translate from German). This wording diminishes rights to so-called rights. In the French translation by Pradier-Fodéré, known as particularly trustworthy (Alland, in Grotius 2012, 1), the prædicata ſupplicum jura are rendered as ‘[l]es droits tant vantés des suppliants’ (Grotius 2012, 516). This means something akin to ‘the so highly praised rights of suppliants’ (my attempt to translate from French). Similarly, Tuck interpreted it as ‘the so much revered rights of suppliants or refugees’ (Grotius 2005, 1067). If one reads the extensive quotations of antique and biblical sources on asylum that follow in Grotius’s text and considers the respectful manner in which he honours their meaning in his interpretation, the

Human rights to asylum and non-refoulement  25 rather disrespectful ‘so-called’ does not seem adequate. Rather the ‘highly praised’, ‘much revered’, or Kelsey’s ‘much discussed rights of suppliants’ seem to agree with this. Moreover, Grotius, by briefly describing who should benefit from asylum protection against extradition, also clearly pointed to the justification of such protection. Rights to protection ‘illis proſunt qui immerito odio laborant’ (Grotius 1913, 369)—are for those who suffer from undeserved enmity. Just like the reception of expulsi, they do not protect from genuinely criminal prosecution. They are not limited to those who are persecuted unjustly—as an older translation of this passage into French and the usually quoted German translations suggest (Grotius 1724, 643; 1869, 116; 1950, 370). Rather, they are supposed to benefit more generally all of ‘those who suffer from undeserved enmity’ (Grotius 1925b, 530; similar in French in Grotius 2012, 516), including persons persecuted without legitimate reasons. This changes the perspective. Indeed, Grotius treated asylum within the inter-state legal context of extradition: as an exception thereof and as an exception that did not contradict a general duty to extradite or punish the foreign convicted criminal. However, this exception itself had a justification external to this relation. This justification had to do with the question of whether a person was confronted with an evil intentionally caused by other human beings (odium, enmity) and whether this situation was, as opposed to criminal prosecution, immeritus (unmerited or undeserved). Thus, where Grotius justified asylum, the suppliants became the central point of consideration. Both whether their suffering was qualified as suffering from enmity and whether their previous imputable behaviour or non-imputable fate caused this enmity were supposed to be decisive to determining qualification for an asylum that may protect them. The ſupplicum jura were indeed rights of [the] suppliants that had to be intrinsically justified. That they had been prædicata, perhaps praised, and had certainly been mentioned and discussed before, does not indicate that they were considered so-called rights; rather, it shows that the value of this protection had also previously been perceived or suspected by others. This deduction also fits with a further textual finding. Before proceeding ‘to prepare his system of subjective rights’ (Kadelbach 2017, 142), Grotius had defined jus (legal right) near the beginning of his treatise. He said that jus is always connected with justice; ‘jus hic nihil aliud quam quod juſtum eſt ſignificat’ (Grotius 1913, 2), meaning ‘nothing else than what is just’ (Grotius 1925a, 34). Additionally and more specifically, he defined jus as ‘[q]ualitas moralis perſonæ’ (Grotius 1913, 2), namely as ‘moral quality of a person, making it possible to have or do something lawfully’ (Grotius 1925a, 34). Such rights mean ‘entitlements vis-à-vis some other person, with respect to some identifiable transaction or relationship’ (Neff 2012, xxvii). It would be rather surprising to learn that Grotius later used the term jus carelessly, ignoring his own definition, and without attaching to that fact some meaning related to those to whom this wording is attributed. It is more likely that, for the most part, ‘Grotius’s conception of rights is the narrow kind’ (Neff

26  Rainer Keil 2012, xxvii). To say the least, Grotius’s ſupplicum jura (suppliants’ rights), perhaps against still prevailing tendencies of his time, bore the rational germ of a right in the sense of Georg Jellinek’s subjektives Recht (Jellinek 2011, 54–55) or of the use of droit subjectif in French (Haggenmacher 1997, 73, 112; Mautner 2013, 120), that is, a legal entitlement or claim.

1.3 Admission of expulsi and commercial or colonial endeavours The individual has also been weakened by others—presumably for historical reasons—in their examination of Grotius’s system of reasoning by placing it in the greater context of argumentation in support of commercial or colonial activities. This perspective, one might think, leads to a view of admission of expulsi as merely an emanation or moral ornament of argumentation that essentially serves aggressive commercial or colonial interests, which does not suggest an essential and genuine interest in the legal position of persons driven away from their former homes. Many authors have shown how closely linked Grotius’s thinking, both in general and, more specifically, about migration, is to the commercial and colonial endeavours of his period (Cairns 2008; Cavallar 2008, 192–98; Wilson 2008; Tuck 2011, 106–7). Before the publication of De jure belli ac pacis, Grotius had engaged in defending his cousin Jakob van Heemskerck’s capture of the Portuguese vessel Sta. Catarina, which occurred in the East Indies in 1602 (Tuck 2011, 79), and the legitimacy of the sale of the very valuable prize (Armitage, in: Grotius 2004, xii–xiii). He did so in his Mare Liberum of 1609 by claiming the right to freedom of the trade and navigation of the sea (Grotius 2004, 51) against the Portuguese blockade. Grotius’s claim that the right to wage war was not limited to states here served the purpose of justifying the capture by Captain van Heemskerck and similar acts by private trading companies such as the emerging United East India Company (Tuck 2011, 85). Later, after the Dutch created settlement in the East Indies in 1619 and Manhattan in the 1620s (New Amsterdam) and their expansion into New Netherland, they began founding their own colonies in the Guianas and New Holland in what is now Brazil (Tuck 2011, 104). Whereas Vitoria had denied the right to wage war against non-Christian peoples for the sake of punishing them for violations against natural law, such as acts of cannibalism, incest, or sodomy (Vitoria 2010, 273)—because protection against tyranny was supposed to be the only just rationale (Vitoria 2010, 287–88)—Grotius widened the justifications of war. In Book II, Chapter XL, of De Jure Belli ac Pacis, he claimed that legitimate governments had a right to punish not only on account of injuries committed against themselves or their subjects but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. (Grotius 1925b, 504)

Human rights to asylum and non-refoulement  27 Richard Tuck emphasised the following: The idea that foreign rulers can punish tyrants, cannibals, pirates, those who kill settlers, and those who are inhuman to their parents neatly legitimated … European action against native peoples around the world … The central reason … was, I think, that the Dutch … had begun to annex territory. (Tuck 2011, 103) If we look at statements concerning migration, it appears one could place them in this context. Grotius, in Book II, Chapter II, again reasoned that the sea could not become the subject of a particular property (Grotius 1925b, 190). He went on to state that lands and rivers are open for passage for those who have legitimate reasons (Grotius 1925b, 196–200) and that ‘if, within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it’ (Grotius 1925b, 2020). By claiming that ‘uncultivated land ought not to be considered as occupied’ (Grotius 1925b, 202), ‘Grotius presents an embryonic form of the agricultural argument, popularized by Locke and Vattel later on’ (Cavallar 2008, 197) and strongly attacked by Denis Diderot and Immanuel Kant (Zurbuchen 2015, 195; Kant 1969b, 353, in English: Kant 1998, 122) for its aggressive implications. Tuck interprets all of this as follows: There is a general natural right to possess any waste land, but one must defer to the local political authorities, assuming they are willing to let one settle. If they are not, of course, then … the local authorities will have violated a principle of the law of nature and may be punished by war waged against them. (Tuck 2011, 106) Therefore, the key point for Grotius was that jurisdictional rights could not be … a justification for stopping free passage or the occupation of waste: since both these activities are entirely legitimate, no local authorities could have rights over people in their territory which would extend to preventing them … This view of colonization … fitted rather neatly into the actual Dutch practices during the 1620s. (Tuck 2011, 107) It is within this context that in Book II, Chapter II, Grotius formulated the passage about the admission of expelled foreigners to permanent residence. A closer look somewhat mitigates this view. In 1609, Grotius had not only contested the justness of the Spaniards’ and Portuguese reason for waging war against the Native Americans since they had shown openness to trade (Zurbuchen 2015, 182; Grotius 2004, 18), resulting in the rejection of

28  Rainer Keil Spanish colonial policies as illegal (Tießler-Marenda 2002, 204). Still, in De jure belli ac pacis, after affirming the right to wage war as punishment for violations of natural law, Grotius warned of the dangers associated with the underlying argumentation. In Book II, Chapter XX, Section XLI, Grotius recognised the possibility of that stance being used as a pretext serving to conceal greed as a motivation to take someone else’s property and the dangers of confusing natural law with one’s own national customs (Grotius 1925b, 507), and in Section XLIII, Grotius mentioned epistemic difficulties (Grotius 1925b, 507). He summarised: ‘[W]ars which are undertaken to inflict punishment are under suspicion of being unjust, unless the crimes are very atrocious and very evident or there is some other coincident reason’ (Grotius 1925b, 508). Grotius’s reasoning was, after all, not a theory that simply legitimised the use of imperial force (Mahlmann 2015, 207). In spite of this, Vattel later criticised Grotius for the potential of fanatic abuse that such limitations of a right to wage punitive wars were unable to prevent (Zurbuchen 2015, 189). As we can see thus far, Grotius’s reasoning on issues of migration seems to fit with an only slightly mitigated argumentation in support of aggressively pursued commercial and colonial interests. Does his argumentation thus lose all its value to us who live centuries later and have good reason to look critically at the violence of colonialism? I think it is possible to show that it does not. A first hint of the truth of this can be explored by considering these questions: Was it, perhaps apart from adding an ornament distracting from the general intentions, even helpful to discuss expulsi in his treatise if the chapter only served to legitimise commercial and colonial interests? While it is true that the abuse of the general reasoning for migration, as presented in this section, for aggressive trade or colonial wars was at hand, was this abusive potential necessarily connected with a specific duty to the expulsi, who were in dire need? Was the duty to allow expelled foreigners to settle and the underlying reasoning at all connected with commercial or expansionist implications? If so, is it not legitimate to have a look at, as de Wilde (2018, 481) formulated, ‘the extent to which Grotius’s theory could, in other contexts, serve as an argument for aiding, rather than dispossessing, foreigners’? Is this not exactly what ‘Third World eyes’ (Juss 2004, 305) or the eyes of the developing world emphasise at present? Free migration does not seem to serve anything such as colonialism. Rather than colonising other countries with settlements, ‘the countries of the Northern Hemisphere … have been at the forefront of developing restrictionist policies’ (Juss 2004, 302) in recent years. Political, economic, and climatic changes pose new threats to the particularly vulnerable and thus new human rights concerns, especially if persons in danger cannot move, suggesting a perspective that, for some contexts, sees ‘free movement as a component of human rights’ (Juss 2004, 302).

1.4  Expulsi in the Remonstrantie on the Regulations Regarding Jews What we saw (Section 3) leaves us with doubts whether we can understand Grotius’s thoughts on the reception of expulsi and on the protection of

Human rights to asylum and non-refoulement  29 persons facing undeserved enmity exclusively based on the historical context of its origin in commerce and colonialism. It might therefore be helpful to look beyond the legitimising function of Grotius’s argumentation in this specific historical context. To do so, we must examine whether to include further interests he might have considered and take his reasoning seriously to inform our deliberation without any naïveté concerning real or possible implications in other contexts. We will then see that the reduction of Grotius’s reasoning used to legitimise commercial and colonial interests does not do justice to his complex work. In broadening the scope of our examination of Grotius’s work, we find his earlier involvement in the determination of the legal status of Jews in the Netherlands. In 1615, Grotius had been ‘commissioned by the States of Holland and West-Friesland to draft legal regulations for Sephardi Jews who had been expelled from Spain and Portugal and taken refuge in the Dutch provinces’ (de Wilde 2018, 474). Grotius did so in his draft regulations Remonstrance concerning the order to be imposed upon the Jews in the lands of Holland and West-Vriesland (name translated into English by de Wilde 2017, 392). Grotius had to answer the question of ‘whether the Jews ought to be admitted to this country’ (Grotius 2019, 199). Although it is true that this question was posed primarily as a matter of the ‘interests of the mercantile elite’ in overseas trade and the settlement of Portuguese merchants (Kromhout 2019, 56), that premise does not exhaustively explain his reasoning. Grotius explicitly distanced himself from policies of settling oriented towards ‘private profit and commerce’ (Grotius 2019, 199). Grotius’s draft was probably directed against a competitive ‘“race to the bottom” regarding Jewish settlement conditions’ that has been asserted to have existed by de Wilde (2017, 404), and thus also against the competition of charters several cities gave themselves, such as those of Alkmaar in 1604, Haarlem in 1605, and Rotterdam in 1610, each looking at its own particular economic prosperity (de Wilde 2017, 400–4; Kromhout 2019, 50–53). Instead, Grotius approached the question as an investigation of ‘the general interest’ (Grotius 2019, 199)—the interests of all of the states of Holland and West Friesland and those of Jewish persons, not merely private commercial pursuits. To fulfil this objective in his text, after citing many supposedly bad experiences of Christians with Jews and many anti-Jewish prejudices supposedly speaking against admission and reception (Grotius 2019, 200–1), Grotius discussed reasons for supporting admission, which he considered stronger than those against it, describing the factual background of the question on admission as follows: [I]t is mentioned in some sources, that due to the avarice of the princes …, Jews have lost their lives or possessions due to the fanaticism of the populace without any form of justice, and that the princes afterwards found ways of concealing this. (Grotius 2019, 203)

30  Rainer Keil What did this statement mean? In their joint Alhambra-Decree of Expulsion of 31 March 1492, Isabella I of Castile and Ferdinand II of Aragon had ordered that all Jews either leave the kingdoms until the end of July of that year or ‘incur the penalty of death and confiscation of all their possessions’ (Isabella of Castile and Ferdinand II of Aragon 1995, 26–27). In 1496, King Manuel I of Portugal similarly expelled Jews (Soyer 2008, 35). Those who were baptised and stayed had to face extremely cruel and often fatal consequences of the Inquisition against former Jews who had converted to Roman Catholic Christianity and who were suspected of secretly practising the Jewish religion (Goldstein 2006, 104–7). After the establishment of the Portuguese Inquisition in 1536, the formation of the Union of Utrecht in 1579, which recognised the freedom of conscience, and the Spanish conquest of Antwerp in 1585, people of Portuguese origin began to settle in Holland and West Friesland (de Wilde 2017, 397–98). As for the normative question of whether admission should be granted, Grotius responded, as usual, by arguing both the theological perspectives and those of natural law. He assumed a natural kinship, which, according to his reading of Roman law, was legally relevant: ‘Nature has established a kind of kinship between all people, according to the lawyers’ (Grotius 2019, 202). From this natural kinship, which is common to all people, springs hospitality, which is recommended not only by the Scripture, but also by the pagan authors, and involves receiving strangers and treating them well. The nations that have turned away strangers are everywhere denounced as barbarians and unnatural people. (Grotius 2019, 202) De Wilde recently emphasised the following as the underlying concept of Grotius’s 1625 claim that one ought to admit expelled foreigners and allow them to settle. Grotius suggests that the Portuguese Jews have been expelled from their communities without a prior crime, and in violation of natural law. Therefore, the States of Holland and West-Vriesland have a duty to admit the Jews to their lands. Grotius thus recognizes the natural duty to offer hospitality to strangers as legal foundation of the right to asylum, which applies to refugees, who have been collectively expelled from their communities for religious reasons. (De Wilde 2017, 413) De Wilde compared Grotius’s reasoning to the passage in Section 3, Article 1 § 2 of Vitoria’s De Indis, wherein the Spanish author considers the denial of passage to supposedly harmless and innocent Spanish merchants by Native Americans as unlawful and as an act of unjustified war. Vitoria thus saw in it a just title for Spain’s forceful subjection of the Native Americans (Vitoria 2010, 278). Although anyone looking up both passages will see

Human rights to asylum and non-refoulement  31 that this parallel is indeed striking, there are crucial differences. One critical difference is that, according to Grotius, statutory law of local authorities can annul those positions of natural law that concern merely ‘permissible acts’ (Grotius 1925b, 205). Hence, it is impossible, or at least doubtful, that one could truly justify a colonial war based on the reasoning of Grotius (TießlerMarenda 2002, 247). Of greater importance is the decisive difference between the situation of the Spanish merchant in America and the expelled Jew in Holland: Jews, without individual guilt, lost their home for good. They were ‘homeless’ (Meijer 1955, 104) and ought to be able to live somewhere: ‘It is obvious that God wishes them to live somewhere. Why not here, then, as well as anywhere else, seeing that the same argument applies elsewhere which might also be put forward here?’ (Grotius 2019, 203).De Wilde is correct in his declaration of this as an innovative discovery of Grotius: By projecting the law of hospitality into different contexts, Grotius gave it a new meaning, exploring its potential for being reinterpreted in unexpected ways. Thus, unlike Vitoria, Grotius came to recognise it as legal grounds for offering a refuge to foreigners who had been expelled from their communities for religious reasons. (de Wilde 2018, 480)

1.5  Expulsi in On the Law of War and Peace In his later work On the Law of War and Peace, Grotius did not provide a specific reasoning concerning expelled foreigners, apart from quoting authorities of antiquity and Christianity as a base upon which he built his clear position. Yet, it seems reasonable that some foundational considerations of other parts of the book are illuminated particularly clearly here and reflected through their consequences for expulsi. Grotius saw the very root of the formation of civil society as more than only the human ‘desire for society, that is, for social life … peaceful and organized according to the measure of his intelligence’ (Grotius 1925a, 11) that is so often mentioned. At least as important to him was ‘the experience of the weakness of isolated households’ (Grotius 1925a, 149) and individuals (Grotius 1925a, 15). Extreme necessity and the ‘appreciation of human frailty’ (Grotius 1925a, 149) legitimised, modified, and constrained the human-made volitional laws (in contrast to natural law) and, thus, the justifiable use of sovereign power, as made clear in Book I Chapter IV Section VII. It is this human frailty that we find again, where, in Book II, Chapter II, Grotius explained the ‘benign reservation’ (Grotius 1925b, 193) to private property. If we ask ourselves where the limits of the validity of human law are, we have to remember that its origin is ‘the will of those who associate’ (Grotius 1925a, 149) and ask ourselves how far this will to associate and pass authority to those who govern could have gone (Grotius 1925a, 149). It cannot comprise that which we cannot renounce for existing.

32  Rainer Keil Hence it follows, first, that in direst need the primitive right of user revives, as if community of ownership had remained, since in respect to all human laws—the law of ownership included—supreme necessity seems to have been excepted. (Grotius 1925b, 193) Foreign human beings expelled from their homes—expecting the death penalty if caught after the deadline for leaving—and seeking refuge were in this kind of situation. Their existence depended upon the reception and admission to a permanent residence. The ratio legis of duties to expulsi was protection from dangers of human weakness within a system of rights. After this more differentiated picture of the reasoning underlying Grotius’s position, we see these three characteristics shaping the contours—positive prerequisites, negative prerequisites, and consequences of the legal status— of the protection of expelled persons in Grotius’s De Jure Belli Ac Pacis. I A positive prerequisite for protection is that the person in question belongs to the expelled individuals. The notion of expulsi covers persons persecuted for religious reasons if we follow de Wilde (2018, 474) in that Grotius based his understanding on earlier considerations in his Remonstrantie. Persons being told to leave the country if they intended to practise their religion and otherwise expected existential dangers (in the example, death penalty) shaped the notion of expulsi. Additionally, it should be noted that, in § 30 of the Prolegomena, Grotius called himself ‘undeservedly forced out from my native land’ (Grotius 1925a, 20–21). This refers to Grotius’s arrest in 1618 for sedition, his conviction for treason, his sentence to life imprisonment in 1619, and his flight to his exile in Paris in 1621. His arrest was a consequence of a political power struggle (Brugh 2016, 3) caused by a religious conflict between Arminian Protestants and orthodox Calvinists that led to a coup d’état (Onuma 2020). The theological opinions of Prince Maurice ‘were no doubt secondary’ to his opinions concerning political structures and power (Reeves 1925, 53), suggesting that, to Grotius, highly political reasons for persecution could be a reason for qualifying it as an unjust act forcing him to leave (i.e. expulsion) and base the qualification for admission to a residence. Furthermore, Tießler-Marenda argued that expulsi were persons or groups of persons ‘who, as a consequence of war or similar force, were involuntarily driven away from their home’ (Tießler-Marenda 2002, 205, my translation). Within Grotius’s system of thought, this interpretation could be justified with the underlying reason for the duty to admission: ‘direst need’ as ‘benign reservation’ to the formation of private property (Grotius 1925b, 193) and territorial jurisdiction on the side of the obliged and the urgent necessity on the side of the concerned persons (TießlerMarenda 2002, 193–94).

Human rights to asylum and non-refoulement  33 II There are some negative prerequisites, conditions whose fulfilment excludes the duty to admission. As we saw, it was against amicitia, international friendship, to admit foreigners who were under a legal obligation of service. To these belonged those ‘seeking to escape a justly deserved penalty’ (Grotius 1925c, 820). In the case of banned persons, the act of banishment cut the legal bonds between them and their former government (Grotius 1925b, 254); therefore, by receiving banned persons, the government did not act in an unfriendly manner (Grotius 1925c, 820). Where there was no individual banishment, as in cases of expulsi, there could be similar grounds interrupting the legal bonds to one’s government (Tießler-Marenda 2002, 211). Again, with de Wilde, we might read On the Law of War and Peace based on discoveries made in the Remonstrantie. It seems legitimate to assume that it was the lack of substantial individual grounds investigated in a procedure ‘without any form of justice’ (Grotius 2013, 2019) that lay at the basis of enmity against Jews on the Iberian Island. The persecution in Aragon, Castile, and Portugal, through its injustice, cut the legal bonds of these kingdoms with those who fled. The lack of sufficient protection and existential threats of war or similar force, in their arbitrariness, like fate, suggest a similar view on people who had to leave for such reasons. III If they fulfilled the prerequisites, several elements comprised the legal status of the expelled persons. Before entry, there was an obligation to allow passage. Lands, rivers, and any part of the sea were supposed to be open to passage for people forced to leave their country (Grotius 1925b, 196–97). Furthermore, ‘a permanent residence ought not to be denied’; expulsi had to abide by the law of the land (Grotius 1925b, 203–4). Conversely, ‘[n]ot even in circumstances of so great need … can foreigners, who have once been admitted to a country, be expelled’ (Grotius 1925b, 203). If a local statute did not provide otherwise, expulsi enjoyed the ‘liberty to seek and contract marriages’ with possible partners from among the reception society (Grotius 1925b, 204), the right to buy and sell things (203), and such rights as not to be excluded from the legal status that foreigners generally enjoyed in the country (Grotius 1925b, 204–5).

1.6 Political persecution, the political character of asylum, and the rights to an asylum procedure and asylum As described above, what Grotius called asylum and rights of suppliants were an exception to the assumed general rule of a state’s duty to either punish or extradite foreign convicted criminals. Tießler-Marenda (2002, 234–35) claims only minor violations of law and only non-political issues could, in Grotius’s system, lead to the protection of asylum. Tießler-Marenda (2002, 234–35) especially refers to Book II Chapter XXI § V, Section 5, where Grotius stated:

34  Rainer Keil In the present and in recent generations, and in the majority of European countries, this right … of demanding for punishment those who have fled the frontier, has been exercised only with respect to crimes that affect the public weal or that manifest extraordinary wickedness. (Grotius 1925b, 533) Tießler-Marenda claims that ‘in cases of such crimes, extradition or punishment is always to be carried out, even if the duty to extradite is limited’ (Tießler-Marenda 2002, 235, my translation). Grotius saw the duty to either punish or extradite (Grotius 1925b, 527), particularly in two groups of cases. The first was ‘the case of crimes which in some way affect human society’ (Grotius 1925b, 526). In the second case, the duty existed in his view ‘in the case of crimes by which another state or its ruler is in a special sense injured, and on account of which that ruler or state, for the sake of dignity or security, has the right to exact punishment’ (Grotius 1925b, 526). Tießler-Marenda thus claimed that ‘exactly all those acts, for which in today’s understanding, political asylum would be granted, are always reason for extradition’ in Grotius’s system (Tießler-Marenda 2002, 235, my translation). This position would fit the prevailing belief during the early modern period, taken from Roman law, that, as Kimminich put it, der politische Verbrecher, the political felon or criminal, was supposed to be excluded from the blessings of the right of asylum (Kimminich 1978, 41–42). It also seems to suggest that Grotius’s system of law always excluded persecution on political grounds from being a legitimate reason for asylum. It seems that this made it appear absurd to imagine Grotius as a major contributor to a human rights discourse on the law of and right to asylum. However, a closer look shows that it is rather questionable whether such a conclusion would be consistent with other views of Grotius. Doubts arise if we account for the possibility that, without additional considerations, the interpretation discussed here would have led to an obligation of the French king to extradite Grotius himself to his home country. In Section 5, we saw that a court had sentenced Grotius to life imprisonment for treason. Treason was certainly a crime that, had Grotius committed it, would have affected the statum publicum, the condition of a civitas—a citizenry as a publicly and legally ordered system: a state. Furthermore, the concept of treason or crimen maiestatis seems to come close to exactly those crimes Grotius excluded from asylum because they injured another civitas, state’s citizenry, or its rector, ruler (Grotius 1913, 368), in a special sense having to do with issues of dignity or security. The Roman crimen maiestatis originally included acts directed against the constitutional order (Avenarius 2010, 1140) and later, as crimen laesae maiestatis, referred to the person and family of the ruler, too (Avenarius 2010, 1144). It seems rather unlikely that Grotius argued for a duty to extradite him. The key to resolving the problem of avoiding this within his system of thought seems to be that Grotius considered the verdict against Oldenbarnevelt and himself thoroughly unjust. He expressed this quite clearly

Human rights to asylum and non-refoulement  35 in an unpublished draft introduction to his Disquisitio, Pelagiana sint ea dogmata quae nunc sub eo nomine traducuntur of 1621/1622. In their content analysis, Edwin Rabbie and Henk Nellen provide a brief summary of how Grotius himself described and evaluated the events that had happened to Oldenbarnevelt, Hogerbeets, himself, and other former magistrates in the course of a coup d’état and the following trial between the summer of 1618 and the spring of 1619: First … the old magistrates had to be removed from office; some of them were arrested. … New magistrates were appointed by the prince. … The prisoners’ trials were unjust and illegal. … The prisoners were convicted on false charges of treason. … They had no fair chance to defend themselves. … They were accused of lese-majesty, but their judges did not even dare to sign the verdict. (Grotius 1987, 64) In his book On the Law of War and Peace, Grotius commented on the judgement against him, its enforcement, and his flight from it by considering himself indigne, shamefully or ‘undeservedly forced out from my native land’ (Grotius 1925a, 20–21; Lat. idem 1913, Prolegomena, § 30). He thus suggested identifying his case as one of those qui immerito odio laborant (Grotius 1913, 369), ‘who suffer from undeserved enmity’ (Grotius 1925b, 530), the prerequisite for asylum as protection from extradition. This might indicate that, although a kind of political persecution, Grotius considered it a reason for asylum if authorities of the state of origin applied natural law or domestic criminal law inadequately in the eyes of those who decide the asylum case in the state of refuge. Unjust enmity, a prerequisite of asylum protection, could include forms of political persecution. This leads us to the question, whether the political character of the decision about asylum can be harmonised with asylum as a matter of law. The fact that authorities of the possible state of refuge had to decide made granting asylum a ‘strikingly political’ issue (Price 2009, 37) of international relations. One could think this contradicts Grotius’s legal approach and his words, according to which, if ‘the crime of which the suppliants are accused is not forbidden by the law of nature or of nations, the case must be judged according to the municipal law of their own country’ (Grotius 1925b, 534). However, there is no such contradiction; either the last quoted sentence collapses the possibility of asylum altogether, rendering Grotius’s chapter on asylum vain and meaningless, or the decisive hermeneutic point is that organs of the state of possible asylum have the legal authority and duty to independently interpret the municipal law of the country of origin. This could mean one of two things. First, it implies that the authorities of the state of refuge have to determine whether the facts of the allegedly committed wrong are true (Price 2009, 36). Second and more important, it could additionally mean that they have to decide on controversial normative issues of criminal justice, such as whether the foreign state is not allowed to punish in the concrete case and has

36  Rainer Keil ‘exceeded the bounds of rightful authority’ (Price 2009, 37). If someone has committed such a political crime as high treason or lese-majesty, asylum cannot be granted; however, since the judgement in the country of origin could be unjust, it is within the responsibility of the country of refuge to determine if the asylum seeker did something that justly leads to such a conviction. There is an implication that such excess was possible within the system of Grotius’s work. Grotius did not work out these implications in the context of asylum, but he gave us examples of unlawful criminalisation in other contexts. Among these are the punishments for internal acts (Grotius 1925b, 487), for unavoidable external acts (Grotius 1925b, 488), and for acts by which human society is not injured (Grotius 1925b, 489); also among them are punishments against peoples who refused to embrace the Christian religion (Grotius 1925b, 516), against individuals who teach or profess Christianity (Grotius 1925b, 517), or against those ‘who are in doubt or error’ concerning some traits of Christian teachings (Grotius 1925b, 518). Price noted the ‘family resemblance’ of such cases of unjust rule with the situations in which forceful sanctions ‘could be employed against governments that treated their citizens cruelly’ (Price 2009, 37). One could add that Grotius was aware of such considerations as the possibility of ‘wrong-doing on the part of those possessing superior authority’ (Grotius 1925a, 149). He recognised the right to resist a king who undertakes to alienate his kingdom (Grotius 1925a, 157) and the loss of the legally binding force of kingship by means of a king’s enmity against his people (Grotius 1925a, 157–58). As van Nifterik points out, the ‘limits of power are partly drawn by natural law …, partly by the limits and scope of the specific societas, and partly by the contract underlying the transfer of the right to govern from the societas to the ruler’ (van Nifterik 2018, 85). Excesses of power and legal consequences exist in Grotius’s system. After all, the aspect of a political character of the decision about asylum does not contradict its legal nature. It only means, whenever ‘one judges, one judges as a member of a community’ (Arendt 2003, 72).

1.7 Elements of a comprehensive concept of asylum in Grotius’s work It is legitimate to propose a reading of Grotius’s text that includes a comprehensive asylum concept. The strict separation of the treatment of expulsi and those seeking protection from extradition, authors of recent secondary literature postulate (de Wilde 2018, 475; Tießler-Marenda 2002, 205), does not have a sound basis in Grotius’s work. True enough, Grotius treated the two of them in different parts of his work and did not develop a comprehensive concept of asylum. He discussed the problems at the place where they were relevant for his work on the law of war and peace. However, Grotius formulated the prerequisites and legal consequences of the duties protecting expulsi and suppliants very similarly. The assumption of a common underlying concept does not appear as an illegitimate projection of the modern reader but rather suggests itself to anyone who approaches Grotius’s work hermeneutically.

Human rights to asylum and non-refoulement  37 When examining the prerequisites for protection, we see (Section 2) that, for the prevention of extradition, one had to fulfil two requirements: first, recent or expected suffering from enmity; second, evidence that this situation was undeserved and was not a consequence of a just claim to punishment. Those who had the authority to decide had to apply the law of nature, the law of nations, or the municipal law of the country of origin (Grotius 1925b, 534) to judge and determine whether they should grant asylum because the experienced or expected enmity was undeserved. Bring (2006, 140) remarked that it was surprising that Grotius considered international crimes at all and points out that his discussion of them as reasons for extradition is a modern and progressive trait of his otherwise often conservative teachings. This premise was adopted for the international prosecution of international crimes as defined in Articles 5–9 of the Rome Statute of the International Criminal Court of 17 July 1998 (2187 UNTS 3). It also laid the groundwork for Article 1 F of the Geneva Convention on the Status of Refugees of 28 July 1951 (189 UNTS 150) and for excepting perpetrators of crimes against peace, war crimes, or crimes against humanity from refugee protection. Similarly, we saw (Section 5) that for the reception as expulsus, what the person in question needed to prove was two things. First, there had to be an act of force as cause of leaving the territory of origin and, second, he or she did not have to fulfil a just and legal obligation at home, as, for instance, serving punishment after a court has justified conviction of a crime. Since the necessary act of force could be persecution—including unjust criminal prosecution, as we saw for Grotius’s evaluation of his own case (see above in Section 5)—the situation relevant for cases exempt from extradition was included within the concept developed for the reception of expulsi. As far as the legal consequences, that is the range of protection and status of suppliants and expulsi, are concerned, we can state the following. For the time before the arrival at the aim of the flight, Grotius’s asylum concept stipulated safe pathways for travelling. Grotius’s formulation in Book II Section II § XIII covers both individuals seeking to avoid exposure to undeserved enmity including persecution, hoping for protection from extradition, and those who, for other reasons, are forced to leave their home country: Similarly also lands, rivers, and any part of the sea that has become subject to the ownership of a people, ought to be open to those who, for legitimate reasons, have need to cross over them; as, for instance, if a people has been forced to leave its own territories. (Grotius 1925b, 196–97) Grotius placed this and everything relevant after arriving within the concept of rights. It is the term jus and its feature as the right of a person that Grotius used as the basis of the legal position of protecting those who seek asylum from extradition, as ſupplicum jura, where he could have chosen a rather

38  Rainer Keil objective formulation (jus asyli, or similar) or one placing the ruler as a subject of the right. The fact that Grotius already distinguished between perfect and imperfect moral qualities and only named a perfect one, ‘a legal right properly or strictly so called’ (Grotius 1925a, 35), suggests a rather strong meaning of this right. With such concepts, Grotius laid the groundwork for an investigation he himself did not carry out. Among those who followed later was de Vattel with his intriguing discussion of the aspects and consequences of the right to admission (Keil 2021). De Vattel conceived it as a perfect right of human beings, per se, but also describes it as an imperfect right against a certain country in Book I paragraphs 230, 231 of his The Law of Nations of 1758 (de Vattel 2008, 136). Furthermore, in Book II, Paragraph 125, de Vattel pointed out the possibility that it might grow into a perfect right even against a certain country (de Vattel 2008, 207). Kuosmanen (2013) recently worked out the importance of perfecting imperfect duties to institutionalise a universal right to asylum. For expulsi, we do not find the word jus combined with the expelled persons as subjects. We find a legal duty of the potential receiving state, an obligation not to deny a request for receptum, the legal position of admission, if some personal prerequisites are fulfilled. This duty, arising just on the occasion of a qualified request, closely corresponds to what constitutes a right; structurally, it does function as a right. Grotius’s work stated that it was the duty of authorities of the state of asylum in question to protect suppliants and carry out an asylum procedure (Grotius 1925b, 533–34). Grotius, as far as I have seen, did not explain any similar procedure for the decision on the settlement of expulsi. However, because, for the question of the extradition of other settlers such as expulsi, Grotius, in Book III, Chapter XX § XLI explicitly refers to his previous discussion on asylum (Grotius 1925c, 820), we have reason to suppose that whenever the question of extradition should arise, authorities had to carry out the procedure. Otherwise, permitting expulsi to settle was, it appears, allowed within the relation to other states and duty in relation to the persons forced to leave their home country. After a positive decision, a just law and the rights of the suppliants prohibited extradition. De Wilde stated a view according to which asylum implied an only ‘temporary refuge until a milder punishment or due process has been negotiated’ (de Wilde 2018, 475). Supposedly, this is a difference between asylum as provisory protection from extradition and the status of expulsi, as authorities allow individuals given that status to settle permanently. I gladly concede that historically asylums were often provisory arrangements and that Grotius referred to previous examples or cases of asylum. Nevertheless, in Grotius’s work, I do not find this consequence can be drawn as a natural conclusion. Furthermore, it seems that doing so would not make sense within his system of thought. If the claim of inflicting punishment was valid as long as the perpetrators were alive (Grotius 1925b, 536), protection from a wrongly claimed criminal prosecution—an undeserved enmity—might have to be granted until further notice and possibly without an end to its

Human rights to asylum and non-refoulement  39 validity. This is how I would interpret Grotius’s silence on this matter of duration. We can further characterise the status of expulsi by their submission to the government and to the laws of the land that are necessary to prevent strife (Grotius 1925b, 202). Among the many rights of settlers was one that is particularly important. Grotius formulated a rule for general non-discrimination. A common right by supposition relates to the acts which any people permits without distinction to foreigners; for if under such circumstances, a single people is excluded, a wrong is done to it. Thus[,] if foreigners are anywhere permitted to hunt, fish, snare birds, or gather pearls, to inherit by will, to sell property, and even to contract marriages … such rights cannot be denied to one people alone … (Grotius 1925b, 205) In current refugee law, we find this concept mirrored in provisions such as Articles 13, 15, 17, 18, 19, 21, 22, paragraph 2, and 26 of the Geneva Convention on the Status of Refugees of 28 July 1951 (189 UNTS 150). Grotius did not write much about the status of suppliants granted asylum in the narrow sense of the word he used. That there was no need to mention the problem makes sense as soon as we work with the assumption that they usually were just a sub-group of the larger group of expelled persons whom the government had granted receptum: persons granted asylum within the meaning of the definition of the Institut de Droit International (see above Section 2). Therefore, the assumption of a comprehensive underlying concept of asylum seems fruitful. It seems convincing to call this concept and its elements a conceptual mould of a right to asylum.

1.8 Hugo Grotius and precursors of human rights It does not appear clear yet how legitimate it would be to call this germ of a right to asylum also one of a human right to asylum. Jacob Meijer associated Grotius’s draft regulations for the reception of expelled Jews with ‘natural human rights’ (Meijer 1955, 104). To him, they were the reason society should offer a place to immigrant Jews (Meijer 1955, 104). García-Mora, in his work on International Law and Asylum as a Human Right, claimed that Grotius had expressed ‘the intimate connection between the asylum and the rights of man’ (García-Mora 1956, 27). For Peter Landau, Grotius’s work included the natural right of the refugee to Aufnahme, reception, or admission (Landau 1999, 318). In 2017, Jochen Bung claimed that for Grotius it was selbstverständlich, self-evident and almost trivial, that there was such a thing as ‘a natural right, a human right to migration’ (Bung 2017, 144, my translation), a right to leave one’s own country ‘supplemented and reinforced by a right to remain in a foreign country’ (Chetail 2016, 908). Would the assertion at least be justified in

40  Rainer Keil Grotius’s normative system, as in that system there is such a thing as a germ of—the foundational reasoning for—a human right to asylum or a right to permanent residence for persons who left their former home country under coercion? What is still missing for such a claim to be sound is that it is consistent with how Grotius’s work relates to the idea of human rights in general. A first, superficial, and merely historical look at the matter might seem to suggest that such claims are ahistorical, anachronistic, and an inadequate projection of the reader of our time not backed by Grotius’s actual writings (Lauterpacht 1946, 43–46). James Griffin emphasised that the use of the term ‘human rights’ began at the end of the eighteenth century (for example, in the French Declaration of the Rights of Man and of the Citizen (1789)—‘les droits de l’homme’), but it gained wide currency only in the middle of the twentieth century. (Griffin 2010, 9) It is thus not surprising that Grotius did not ‘explicitly distinguish a category of human rights from those of states or citizens or princes’ (Vincent 2003, 242). Referring to the Remonstrance, de Wilde recently claimed, ‘Meijer’s idea that Grotius’ draft testifies to the emerging discourse of inviolable ‘natural’ human rights is misleading, since Grotius does not refer to inviolable natural rights at all’ (de Wilde 2017, 395). Some conclusions Grotius drew from his system seem to support the impression created by such historical considerations. Not only did Grotius not use the concept of a ‘human right’; even worse, he described such legal possibilities as that of servitus, slavery or serfdom (van Nifterik 2001/2002), as the fate of a prisoner of war (Grotius 1925c, 690) or the consequence of either voluntary subjection (Grotius 1925b, 255) or of having committed certain crimes (Grotius 1925b, 259). We now consider all of those notions to be an evident violation of a core human right from which states must not even derogate in emergencies, as laid down, for instance, in Article 4, Paragraph 2 of the International Covenant on Civil and Political Rights of 16 December 1966 (999 UNTS 171 and 1057 UNTS 407). Does Jean-Jacques Rousseau’s claim not appear convincing, that Grotius’s insupportable position towards slavery or serfdom was a consequence of methodological procedures, according to which Grotius rather argued by quoting assumed authorities (Rousseau 2017, 5) or facts about legal practice (Rousseau 2017, 2) than with reason and the nature of things (Rousseau 2017, 5)? Additionally, Grotius appears to have adopted ‘an extremely negative stance towards the right of resistance’ (Tanaka 1993, 143). He discussed it in a language that was ‘hesitant, complex, and full of qualifications’ (Remec 1960, 219) and made it, in all its complexity, appear rather weak (Walther 2005, 63). Was Rousseau not right when, in Book I, Chapter 5 of his The Social Contract, he counted Grotius among ‘the supporters of despotism’ (Rousseau 2017, 6)? Did this judgement not fit Immanuel Kant’s more general classification of

Human rights to asylum and non-refoulement  41 Grotius among the leidige Tröster (Kant 1969a, 355), the ‘miserable comforters’, in the Book of Job (Job 16:2)? Was Grotius not one of their kind, and did he not speak ‘vain words’ (Job 16:3) as the friends of Job supposedly had done to him, not helping him at all? Did Grotius not act as they had done when he reasoned with best intentions and on the solid basis of tradition and reflection (Barth 1966, 98–101) but in vain, trying to limit war by binding it to justificatory reasons but, in reality, delivering pretexts for violence instead of institutional structures to limit force—international as domestic? A more thorough look at the matter will make us concede the strong but relative right of such claims and add aspects that show Grotius remains relevant for our discussion of human rights, asylum, and migration in spite of them. As far as Grotius’s method was concerned, the following must be stated: To check whether his concepts could be harmonised with previous thought and practice might have been a precaution in dangerous times. It might also have been a way ‘of proving the reality of the relations between states’ (Kadelbach 2017, 149). Grotius’s method might also have been an expression of his awareness of the fact that in normative contexts there is only one way to test whether our thought is merely personal, private, irrelevant, and perhaps mad—or vice versa backed by something like a valid ‘universal reason’ (Aure 2015, 81–82). It is this question: Is it a position that could appeal to others and be in agreement with some kind of a sensus communis (Arendt 2003, 71)? Older sources might provide some hints for answering this question. Grotius, in § 40 of his Prolegomena, states: ‘[W]hen many at different times, and in different places, affirm the same thing as certain, that ought to be referred to a universal cause’ (Grotius 1925a, 23). Thus, Grotius ‘was still in line with the scholastic tradition’ (Vermeulen 1983, 378). As far as the authoritative sources Grotius quoted were supposed to render the assumed demands and structure of natural law immune from criticism (Vermeulen 1983, 377), this appears to be no longer convincing, if it ever was. Grotius himself knew: ‘Not that confidence is to be reposed in them without discrimination’ (Grotius 1925a, 23), and showed he knew this in how critically he discussed Carneades in § 16 to § 18 of his Prolegomena (Grotius 1925a, 14–16). Old sources can prove nothing; they might even lead us to something that does not convince us at all (as Rousseau convincingly showed concerning slavery), but they generally allow us to make something like a provisory and rebuttable presumption of being right. They certainly could never ease the need for sound and critical reasoning as to whether the concepts of previous thinkers still convince us in the face of recent experiences and reflections. In this sense, Grotius’s thought was not as daring, creative, thorough, and convincing as that of more recent works of other authors. As far as the disturbing example of slavery is concerned, of course, not yet Grotius, but later authors such as Gottfried Wilhelm Leibniz (in his posthumously published work) clarified that no such thing as property consisting of human beings was acceptable, nor was there any rightful relation of dominion without protection by a stronger right against abuse (Leibniz 1893, 67–68; Armgardt 2020, 155–58). Rousseau, against Grotius, fiercely

42  Rainer Keil attacked slavery with his concept of rights (Rousseau 2017, 5). Other philosophes, such as Voltaire (Hunting 1978, 410), and Christian Quakers (Hunting 1978, 410), expressed similar views. Still, for all of this, it was helpful that Grotius had prepared their way. As van Nifterik (2001/2002, 235) points out, Grotius clearly distanced himself from Aristotle’s Politics (Aristotle 1932, 1254a) when he postulated, ‘by nature no one is a slave’ (Grotius 1925b, 551). ‘[A]part from a human act … no human beings are slaves … In this sense it is correct to accept what was said by the jurists, that slavery is contrary to nature’ (Grotius 1925c, 690). The seed, the foundational reasoning, or the germ, a basic structure requiring to be unfolded, of a human right protecting against slavery was already visible, though, in a reprehensible manner denied in its relevance, it did not have any crucial consequences. Seen as a ‘theory of rights rather than … theory of international society’ (Kadelbach 2017, 152), Grotius’s work is more generally ‘fraught … with potentialities’ (Haggenmacher 2014, 1100). Bring found in it an ‘implicit human rights track’ (Bring 2006, 137), something prone to be unfolded, made explicit, concretised, and secured. Rather than concrete human rights protected against alienation or violation and threats of superior powers, Grotius offered un moule conceptionel (Haggenmacher 1985, 126), die Gußform (Roth and Vogt 2012, 23), a conceptual mould of human rights. The ratio legis and some of the features drawn from it, rather than all details of the elaborated system, allows us to see one of the roots of modern human rights law (Haggenmacher 2014, 1100). This is not only true for the history of ideas, where Grotius helped inspire the English, Danish-Norwegian, French, German, Scottish, and Swedish Enlightenment (Aure 2015, 95). More interestingly, some of Grotius’s thoughts, for good reason, have become elements embedded in the conceptual foundations of human rights. James Nickel listed the following elements as traits that are commonly associated with the concept of human rights: (1) Human rights are rights. … Most if not all human rights are claim rights that impose duties or responsibilities on their addressees or dutybearers. (2) Human rights are plural. (3) Human rights are universal. … (4) Human rights have high priority. (Nickel 2019) These features play an important role in Grotius’s thinking, although they are not always combined. For Grotius, as we have seen, jus, (objective) law or (subjective) legal right, was associated with being just and with being a ‘moral quality of a person’ (Grotius 1925a, 35). Grotius based his theory of natural law on rights (Altwicker and Cheneval 2015, 139). Elements of the concept of the subjective quality of rights were already implicit in antique Greek law (Mahlmann 2021, 374) and Roman law. Studies of Spanish neo-Thomists (Aure 2015, 76; Mautner 2013, 116) and the more precise and explicit discovery of substantive rights (Auer 2008, 589–90) inspired Grotius. Grotius himself put

Human rights to asylum and non-refoulement  43 the concept of a subjectively understood right as a ‘concept of ius at the core of his natural rights theory’ (Aure 2015, 76) by placing the definition of jus (Grotius 1925a, 35) in Chapter I at the beginning of the treatise. Rights are ‘claim rights’ in Nickel’s terminology. Here, we have a central feature of human rights in Grotius’s system of law. Rights, for Grotius, can be those of states, rulers, or human beings—often, they are universal rights of individuals as human beings. Grotius centrally places the rights of human individuals. As Lauterpacht put it, ‘[t]he individual is the ultimate unit of all law, international and municipal’ (Lauterpacht 1946, 27). Other authors of secondary literature (Aure 2015, 75; Remec 1960, 70–71, 203) justly emphasised the following essential feature of Grotius’s work: For Grotius, Civitas, the legal condition or shape of the citizenry as the ‘state’ is ‘a complete association of free men, joined together for the enjoyment of rights [juris] and for their common interest’ (Grotius 1925a, 44, Lat.: Grotius 1913, 6). As in later formulations of human rights, free humans stand at the centre of the system of its construction. Vermeulen formulated the following: This natural law is grounded in the social and rational nature of man … and therefore has the individual as its origin and its ultimate goal. Consistently applied, this means that in the law of nations the individual human being is an independent legal subject. … Grotius did not draw this conclusion, which would have led him to a modern theory of human rights. (Vermeulen 1983, 381) Additionally, these rights are plural and universal. When he discussed private property and partial territorial rights as volitional rights, Grotius provided ‘a benign reservation of the primitive right’ (Grotius 1925b, 193). He conceived such reservations, relevant for expelled persons, as remnants of original rights, common to all human beings, thus as universal rights to participate in the use of goods. Grotius unfolded them as several concrete rights (Grotius 1925b, 186). Finally, these rights were not trivial but are, in fact, relevant ‘in direst need’ (Grotius 1925b, 193) and of such high priority that persons in great need could overrule or at least modify duties of volitional law such as to respect rights of property. All of this was consistent, as Grotius, in § 16 of the Prolegomena, supposed that the binding force of volitional law based on mutual consent ‘derives its force from the law of nature’ (Grotius 1925a, 15), namely, as he stated in §§ 8 and 15 (Grotius 1925a, 12, 14–15), from the binding force of the principle of pacta sunt servanda. Grotius thus placed natural law systematically above the law made by humans. Similarly, Grotius discussed in detail exceptions to the law of non-resistance for the ‘case of extreme and imminent peril’ or ‘extreme necessity’ (Grotius 1925a, 148– 49). He ‘accords even to single individuals the right of resistance against the ruler in cases of extreme necessity’ (Remec 1960, 219). The structure of these reservations, as the rationale for an exception protecting groups of

44  Rainer Keil individuals from otherwise consistent consequences of law based on agreement, is similar to the concept of inalienable rights (Blom 2014). Grotius, in Book III, Chapters VII § 4 (Grotius 1925c, 691), reveals an understanding of the concept of inalienable rights (van Nifterik 2018, 80) but does not yet apply the concept to political civil rights or human rights, as we have since then. Thus, although he left us a system of law which, concerning some crucial details, he did not elaborate in a manner that is considered convincing almost four hundred years after its publication, we nevertheless have important foundations and some features of human rights in Grotius’s work. The right to asylum of suppliants and the duty to admit expulsi are among them.

1.9 Inspirations taken from Grotius for current debates What do the texts from Grotius have to offer readers in the 21st century? Looking at both what Grotius worked out and what he did not yet see might inspire the kind of reflection that Reinhardt (2019, 194), in her work on Kant, adequately called productive disharmony (my translation) between his perspectives and more contemporary perspectives. As a distant partner in the discussion about elementary problems of law, Grotius sometimes helps us see more clearly certain issues with current views or regulations. For example, Peter and Renata Singer (1988, 121) formulated utilitarian attacks on rights-based approaches to the ethics of refugee policy, which they see as fruitless attempts to add weight to an author’s ethical intuitions. In his later writing, Peter Singer also pointed out that it may be more effective to help refugees in poorer countries than to receive them. He associated injustice with non-refoulement that privileges those who can travel, not those most urgently in need, and demanded to revise the Convention and Protocol Relating to the Status of Refugees (Singer 2017, 251). However, following his advice would destroy the little legal certainty and reliability of expectations refugees have, unilaterally strengthen national sovereigns’ rights to decide on matters of migration, shift the authority for protection from courts to political institutions and undermine political incentives to even deal with refugee problems. Grotius debated a duty to help in cases of innoxia utilitas, usefulness without harmful effect, similar to what is presently discussed as mutual aid (Walzer 1983, 49; Gibney 2004, 232) or general duty to help in dire need (Hoesch 2016, 17). This argument suggests there is an ethical duty to create policies that help prevent causes of flight and meet humanitarian needs not sufficiently concrete for formulating a legal duty. Grotius also provided reasons supporting modern rights-based approaches (Bast, von Harbou and Wessels 2022, 16–19; Thym 2020, 594–95) by claiming the existence of original rights of migrants fleeing existential danger that still appear strong and relevant against any unilateralism such as that promoted by Singer. The normative legitimacy of sovereign state power depends on adequately considering the rights of migrants. The consensus about splitting the world into political entities presupposes that no individual would be in a situation without rights.

Human rights to asylum and non-refoulement  45 In addition to supporting the defence of institutions, Grotius’s arguments inspire us to demand what is missing. As discussed, general international law still does not provide for a right to seek and be granted asylum. The codification of the right of asylum failed in the International Law Commission in 1977 (Goodwin-Gill 2012, 7). Reading Grotius’s elaborated text from almost 400 years ago and then turning to the present legal situation makes strikingly apparent the lack of adequate guarantees of a right to asylum beyond the dimensions already stipulated in the Convention and the Protocol Relating to the Status of Refugees and regional human rights instruments. Recently, Paul Tiedemann has pointed at the necessity to protect anyone who has reached the territory from injuries to basic human rights goods (Tiedemann 2021, 10), as has been emphasised by many authors in the past (e.g. Shacknove 1985, 284; Carens 2015, 201; Keil 2017, 95; Kirste 2018, 140; Reinhardt 2019, 224–25; Ladwig 2020, 227). Tiedemann continues to claim that refugee law, as human rights law, should not protect against discrimination. He claims that—even in cases of persecution for reasons of an assumed race, religion, nationality, membership of a particular social group or political opinion—protecting refugees from custody or criminal sentences to imprisonment would not be consequent if the receiving state provides for such measures and punishments as well (Tiedemann 2021, 11). Grotius claimed an intimate relationship between what he called jus (right, law) and justitia (justice). His view can elucidate the fact that the aspects of justice related to a painful evil can be part of what determines its meaning, acceptability, and size. For example, a lack of justice might be decisive for transforming a serious evil, such as detention, into an unacceptable injury, which supports the claim that states ought to protect refugees from arbitrary treatment, which, as a form of persecution, severely violates human rights, even if the threat or injury does not concern life, physical or mental health, or integrity. Beside subsidiary protection from serious harm (Article 15 Directive 2011/95/EU) protecting refugees within the meaning of the Convention and Protocol on the Status of Refugees still has significance. Reading Grotius shows that even hundreds of years ago, the necessity of paths that ensure safe, orderly, and regular migration seemed evident and worthy of detailed elaboration. However, although its urgency has been recognised (United Nations General Assembly 2016, 2), no satisfactory regulation exists to cope with this problem at present. Large numbers of refugees, especially in developing countries, have not held any settled status for more than a decade (Parekh 2020, 110), and their lack of status causes immense difficulties. It is striking how clearly Grotius pointed out the necessity of providing refugees status with rights and duties. For the general context of the topic of this book, it is remarkable that this empowers both refugees and receiving states. Grotius emphasised the protection of asylum seekers during the recognition procedure (Grotius 1925b, 533). What seemed obvious in 1625 is still far from trivial, as evident in the deficiencies in the implementation of existing standards, such as the current conditions detrimental to physical and mental health in hotspot Reception

46  Rainer Keil and Identification Centres on the Aegean Islands (International Rescue Committee 2020) and the serious problems with pushbacks (Council of Europe, Committee of Ministers, 2020). Grotius laid the groundwork for Article 1 F of the Convention on the Status of Refugees and for the prosecution of crimes against humanity and other international crimes (Section 7). Tiedemann’s (2021, 10) point—every person must be protected against violations of basic human rights—makes it appear as even more just to not extradite perpetrators of crimes against humanity if such extradition would lead to torture, but to instead punish these perpetrators according to the rule of law wherever they are.

Conclusion The chapter presents several major results that contradict some claims in recent literature. In opposition to those claims, reading Grotius provides a concept of asylum law with the germ of individual rights at its centre (Section 2). Grotius’s argumentation does not depend on the reasons for justifying colonial endeavours (Section 3). In several writings, Grotius reasoned for the duty to protect expelled persons (Sections 4 and 5). He also asserted that asylum can protect against unjust political persecution (Section 6). Grotius formulated the elements of a comprehensive concept of asylum, including prevention of harm from extradition in cases of undeserved enmity and protection from existential threats by permitting settlement and legal status (Section 7). He laid the groundwork for a more contemporary human rights theory (Section 8). To the modern reader, the underlying reasoning supports an association between these assertions and Grotius’s fragmentary precursors of human rights theory, moving towards a fundamental right to nonrefoulement and asylum. This reasoning inspires us to examine critically the lack of a fundamental right to asylum in general international law and some arguments presented in recent political and philosophical debates (Section 9).

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52  Rainer Keil Reeves, Jesse S. 1925. ‘The Life and Work of Hugo Grotius.’ Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969) 19, 48–58. www.jstor.org/stable/25656685 (retrieved 14 October 2021). Reinhardt, Karoline. 2019. Migration und Weltbürgerrecht. Zur Aktualität eines Theoriestücks der politischen Philosophie Kants. Freiburg im Breisgau und München: Verlag Karl Alber. Remec, Peter Pavel. 1960. The Position of the Individual in International Law According to Grotius and Vattel. The Hague: Martinus Nijhoff. Roth, Klaus and Vogt, Tilman. 2012. ‘Hugo Grotius.‘ In: Menschenrechte. Ein interdisziplinäres Handbuch. Herausgegeben von Arnd Pollmann und Georg Lohmann (editors). Stuttgart and Weimar: J. B. Metzler, 21–23. Rousseau, Jean Jacques. 2017. The Social Contract. English version edited by Jonathan Bennett. www.earlymoderntexts.com/assets/pdfs/rousseau1762.pdf (retrieved: 14 October 2021). Shacknove, Andrew E. 1985. ‘Who Is a Refugee?‘ Ethics 95(2), 274–284. Singer, Peter. 2017. ‘Escaping the Refugee Crisis.’ In: Peter Singer, Ethics In The Real World. 82 Brief Essays on Things That Matter. 9th printing and first paperback printing. Princeton, New Jersey, and Woodstock, United Kingdom: Princeton University Press, 249–252. Singer, Peter and Singer, Renata. 1988. ‘The Ethics of Refugee Policy.’ In: Open Borders? Closed Societies? The Ethical and Political Issues. Mark Gibney (editor). New York: Greenwood Press, 111–130. Soyer, François. 2008. ‘King Manuel I and the Expulsion of the Castilian Conversos and Muslims from Portugal in 1497: New Perspectives‘. In: Cadernos de Estudos Sefarditas, no. 8, www.catedra-alberto-benveniste.org/_fich/15/Francois_Soyer_ (1).pdf (retrieved 14 October 2021), 33–62. Tanaka, Tadashi. 1993. ‘State and Governing Power.‘ In: A Normative Approach to War. Peace, War, and Justice in Hugo Grotius. Yasuaki Onuma (editor). Oxford: Clarendon Press, 122–146. Thym, Daniel. 2020. ‘The End of Human Rights Dynamism? Judgments of the ECtHR on “Hot Returns” and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy.’ International Journal of Refugee Law 32(4), December, 569–596. https://doi.org/10.1093/ijrl/eeab004 (retrieved 23 November 2021). Tiedemann, Paul. 2021. ‘Are There Moral Duties toward Refugees? Considerations in Legal Ethics.’ Laws 10: 4. https://doi.org/10.3390/laws10010004. Tießler-Marenda, Elke. 2002. Einwanderung und Asyl bei Hugo Grotius. Schriften zur Europäischen Rechts- und Verfassungsgeschichte. Reiner Schulze, Elmar Wadle and Reinhard Zimmermann (editors), Band 42, Berlin: Duncker und Humblot. Tuck, Richard. 2011. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford Scholarship Online. DOI: 10.1093/acprof:oso/9780199248148.001.0001. United Nations General Assembly. 2016. New York Declaration for Refugees and Migrants. Resolution A/RES/71/1 of 19 September, www.un.org/en/development/ desa/population/migration/generalassembly/docs/globalcompact/A_RES_71_1. pdf. van Nifterik, Gustaaf. 2001/2002. ‘Hugo Grotius on “Slavery.”’ Grotiana (New Series) 22/23, 233–244. van Nifterik, Gustaaf. 2018. ‘A Reply to Grotius’s Critics. On Constitutional Law.’ Grotiana 39, 77–95.

Human rights to asylum and non-refoulement  53 Vermeulen, Bernardus Petrus. 1983. ‘Grotius’ Methodology and System of International Law.’ Netherlands International Law Review 30(3), 374–382. DOI: https://doi.org/10.1017/S0165070X00012006. Vincent, Raymond John. 2003. ‘Grotius, Human Rights, and Intervention.’ In: Hugo Grotius and International Relations. Hedley Bull, Benedict Kingsbury and Adam Roberts (editors). Oxford: Oxford Scholarship Online. DOI: 10.1093/0198277717.001.0001. Vitoria, Francisco. 2010. Political Writings. Anthony Pagden and Jeremy Lawrance (editors). 12th printing. Cambridge: Cambridge University Press. Walther, Manfred. 2005. ‘Das Widerstandsrecht bei Grotius.’ In: Staat bei Grotius. Norbert Konegen and Peter Nitschke (editors). Baden-Baden: Nomos, 49–65. Walzer, Michael. 1983. Spheres of Justice. A Defense of Pluralism and Equality. New York: Basic Books. Wilson, Eric. 2008. The Savage Republic: De Indis of Hugo Grotius, Republicanism, and Dutch Hegemony within the Early Modern World-System (c. 1600–1619). Leiden and Boston: Martinus Nijhoff Publishers. Zurbuchen, Simone. 2015. ‘Eigenes und Fremdes im Völkerrecht der Frühen Neuzeit: Rechtfertigung und Kritik der Unterwerfung der Völker der Neuen Welt.’ In: Völkerrechtsphilosophie der Frühaufklärung. Herausgegeben von Tilmann Altwicker, Francis Cheneval und Oliver Diggelmann (editors). Tübingen: Mohr Siebeck, 177–197.

2 Self-determination and immigration control* A critique Kevin Ip

Introduction Self-determination is a moral claim of a people to rule themselves. It is recognised as a fundamental right and a basic principle of governance in contemporary international society. Article 1 of the United Nations (UN) Charter (United Nations 1945), for example, states that one purpose of the UN is ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. Article 1 of the International Covenant on Civil and Political Rights (United Nations 1966) also specifies that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Under the existing international migration regime, a sovereign state has the right to unilaterally close its borders to foreigners and to restrict immigration. This chapter analyses the leading contemporary theories defending the right of immigration control as an integral part of self-determination. These theories connect self-determination and immigration control in different ways: for example, (1) the cultural account: self-determination gives cultural or national communities the capacity to preserve their distinctive identity; (2) the associational account: freedom of association is an integral component of self-determination; and (3) the democratic account: the right to self-determination flows from the legitimate power of the people to govern themselves. After showing that these three defences of the state’s right to restrict immigration are problematic, this chapter explores a relational understanding of collective self-determination proposed by Iris Young (2007). She argued that self-determination should be understood as a form of non-domination. However, as this article will show, if one accepts this as a more plausible interpretation of political self-determination, then the commitment to the value of non-domination means that the state’s right to unilaterally close its borders to foreigners will have to be significantly *  Earlier drafts of this chapter were presented at Doshisha University and Kobe University. I would like to thank my fellow participants at these conferences, specifically Tetsu Sakurai and Mauro Zamboni, for their insightful comments and suggestions. I am also grateful for the financial support I received from the Japan Society for the Promotion of Science and the Research Grants Council of Hong Kong (HKBU22611219).

DOI: 10.4324/9781003102717-4

Self-determination and immigration control  55 constrained. The question here is whether an international system that grants states an almost absolute and unilateral right to restrict immigration constitutes a form of arbitrary power over prospective migrants. The value of political self-determination appears to be particularly important to liberal democrats who believe that people should enjoy collective autonomy with respect to their public policies and political futures. Immigration can have significant impacts on the well-being of the existing members. It seems intuitively plausible to claim that these very people should occupy a privileged position in deciding who can join their political association. As states, especially liberal ones, may not admit immigrants for an indefinite period of time without extending equal membership to them, immigration will change the composition of the citizenry and have significant impacts on the political future of their home state. Finally, the argument from self-determination seeks to defend a state’s right to unilaterally close its borders to foreigners, while leaving open the question whether it is morally desirable for borders to be more open. It can also be shown that even though open borders will bring about massive improvements in global welfare, states should still be allowed to control their own borders. However, the proponents of self-determination arguments may defend only a presumptive right of political communities to exclude foreigners and maintain that people in affluent societies owe robust duties of distributive justice to foreigners as opening borders is not the only way to fulfil such duties.

2.1 Self-determination and the right to exclude prospective migrants This section discusses three distinct variants of the self-determination argument against open borders: the first appeals to the value of collective autonomy; the second is concerned with the proper functioning of democratic institutions; and the third appeals to the territorial rights of a political community. 2.1.1 The cultural-nationalist account The cultural-nationalist account, defended by Michael Walzer and David Miller, identifies the agents of collective self-determination with culturally distinct, historically stable communities that exercise the authority to control immigration. These communities have the right to control admission and exclusion because it is necessary for preserving the distinctive character of their communal life. Michael Walzer (1983, 31) argued that when we think of distributive justice, we think about ‘independent cities or countries capable of arranging their own patterns of division and exchange, justly or unjustly’ and thus ‘the most important distributive question’ is how memberships are distributed. Walzer’s answer to this question is simple—existing members should make decisions on the admission or exclusion of foreigners, subject only to a few

56  Kevin Ip constraints, such as accepting refugees. For Walzer (1983, 61), the community must have this right because: Admission and exclusion are at the core of communal independent. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing association of men and women with some special commitment to one another some special sense of their common life.1 This right is grounded in the value of ‘the distinctiveness of cultures and groups’, which would not be possible without some ‘closure’ (Walzer 1983, 39). It follows that citizens of a sovereign state may permissibly open its borders only to ‘particular group of outsiders, recognized as national or ethnic “relatives’” (Walzer 1983, 41). David Miller developed a defence of the state’s right to restrict immigration based on the value of national self-determination. Miller (1995, 27) defined a nation as a community that is (1) constituted by shared belief and mutual commitment, (2) extended in history, (3) active in character, (4) connected to a particular territory, and (5) marked off from other communities by its distinctive public culture. For Miller, the nation is the political community that the state represents. National self-determination is valuable to the individual members of a given political community as it enables them to participate in a shared political project with their fellow co-members to determine their shared political future. In Miller’s account, national culture plays a crucial role in the political self-determination of a people. A state is politically self-determining only if its actions can be attributed to a set of aims and values shared by its members, so that such members can be held responsible for these decisions (Miller 2007, 111–14). The problem of unconstrained immigration, for Miller, is that it tends to affect the functioning of a state’s democratic institutions because it is likely to lead to increased cultural divisions among the members, which will eventually reduce both interpersonal trust among members and in political institutions. This lack of trust will impair democratic deliberation, which requires confidence in the goodwill of other members. Two consequences may follow. First, it is less likely that public goods will be provided. Second, it is harder to gain support for economic redistribution in favour of the poor (Miller 2016, 64–65).2 Immigration will change the composition of the citizen body. As liberal states may not admit immigrants for an indefinite period of time without extending equal membership to them, immigration will change the composition of the members and influence the political future of the community. For Miller, it is not just a matter of immigrants having a say in the state’s democratic institutions but also that their potential impact on the values and shared aims of the community is at stake. Self-determination assumes that ‘there exists a group—“self”—that is sufficiently cohesive’ so that ‘one could attribute to it a range of aims and values that the members recognise as their part of their collective identity’ (Miller 2016, 69).

Self-determination and immigration control  57 Thus, Miller’s cultural-nationalist account cannot be applied to multicultural or multinational communities. We should not exaggerate the degree of cultural homogeneity in some countries. Many contemporary liberal democracies like Canada, the US, and Switzerland, to name a few, are plural and multicultural societies. It is unclear, from the cultural-nationalist perspective, whether these states have the right to restrict immigration. There is also a normative concern around whether the state should be allowed to use immigration policies as an instrument for cultural protection or promotion. It is morally objectionable for the dominant group to make immigration preferentially reflect its own culture or values as that would amount to treating the state as specially belonging to the preferred group (Stilz 2019, 142–43). Culturally (in reality, ethnically) preferential immigration policies are demeaning to the minority groups residing in these countries (Blake 2012, 748–62). In response, Miller proposed a distinction between ‘public’ and ‘private’ cultures. He maintained that these societies share a ‘public’ culture comprising a set of shared beliefs about the values that the wider society should embody and pursue, and thus, although different ‘private’ cultures coexist in these societies, the functioning of their democratic institutions still have to rely on the presence of a shared public culture (Miller 2016, 67). However, many potential immigrants can share the public culture of the receiving society especially when it involves a commitment to the fundamental constitutional principles or prevailing political values. If political self-determination requires the right to exclude outsiders because immigration can bring about cultural divisions, why should states have the right to exclude those potential immigrants who share its public culture? Miller thus faced a dilemma: he had to either define culture in more concrete terms, which would mean that his argument would fly in the face of real-world examples of multicultural democracies; or define culture in more abstract terms but his argument would not apply to many potential immigrants. The cultural-nationalist theorists are mistaken in thinking that a shared cultural identity is the only factor underlying interpersonal or institutional trust in a self-determining political community. The reputation of one’s trustworthiness, for example, is perhaps more important than common culture (Abizadeh 2002, 501). A sense of belonging to a particular polity can be grounded on the manifest quality of its political institutions, rather than on the shared cultural background of the members. Thus, a member can identify with most of society’s institutions and practices, and feel at home in them, without thinking that the other members must share her cultural background (Mason 2000, 127–32). The empirical claim that immigration will undermine support for redistributive policies is disputable. A recent study of 17 affluent democracies, including the US, Canada, and the UK, found no evidence that immigration undermines public support for social policy, irrespective of whether immigration is measured in terms of the percentage of foreign-born residents, net migration, or the ten-year change in the percentage of foreign-born residents. The study analyses three measures of immigration and six welfare attitudes between 1996 and 2006 in 17

58  Kevin Ip affluent democracies. The authors concluded that factors other than immigration are far more important for public support for redistributive policies (Brady and Finnigan 2014, 17–42). Finally, if we move away from a shared cultural identity and focus more on the acceptance of fundamental political values of the host society (or the ‘public’ culture), the cultural-nationalist account implies that a state should reject those potential immigrants who reject the core political values of the host society (see, for example, Orgad 2015). Sometimes potential immigrants can have a stronger commitment to core liberal democratic values than some of the existing members. For instance, individuals living in autocratic regimes may ‘vote with their feet’ and seek to immigrate into liberal democratic countries in response to political repression in their home countries (Somin 2020). The cultural-nationalist account implies that the liberal democratic countries should favour these migrants rather than their cultural or ethnic ‘relatives’. 2.1.2 The associational account Wellman’s defence of the legitimate state’s right to restrict immigration also appeals to the value of collective self-determination. Unlike the cultural-nationalist account, Wellman’s (2008, 101–41) arguments are not confined to distinctive cultural groups, but can be applied to all political communities. Wellman (2008, 109–10) started with the idea that freedom of association is highly valued in the contexts of marriage and religion, and this freedom includes the right to refuse association and, in many causes, the right to disassociate. He then contended that (Wellman 2008, 110–11): In light of our views on marriage and religious self-determination, the case for a state’s right to control immigration might seem straightforward: just as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow-citizens has a right to determine whom (if anyone) it would like to invite into its political community. In explaining the value of the freedom of association, Wellman did not ground his argument in the potential consequences of unconstrained immigration for the host society. Rather, he maintained that (2008, 114): Autonomous individuals and legitimate states both have rights to autonomy. This means that they occupy morally privileged positions of dominion over their self-regarding affairs … Freedom of association is not something that requires an elaborate justification, then, since it is simply one component of the self-determination which is owed to all autonomous individuals and legitimate states. For Wellman (2008, 115), the state’s right to control immigration is ultimately grounded in its right to self-determination as ‘an important part of

Self-determination and immigration control  59 group self-determination is having control over what the “self” is’. Any attempt to interfere with their political self-determination constitutes a failure to show respect for the collective autonomy of those members—respect owed to a group of citizens by virtue of their capacity and willingness to protect and respect human rights—and ultimately disrespect for individuals as members of the state (Wellman 2011, 24–25). Wellman reached (2008, 109) the stark conclusion that every legitimate state has the right to close its doors to all potential immigrants, even refugees desperately seeking asylum from incompetent or corrupt political regimes that are either unable or unwilling to protect their citizens’ basic moral rights. Nonetheless, marriage and religious association typically involve more intimate personal relationships that have profound impacts on individual autonomy, and these relationships differ from state membership in many ways. To explain why people care deeply and rightly about who they associate with in the political realm (even that does not imply intimate personal relationships), Wellman offered two reasons in his article. First, a change in membership will influence future decisions made by the state as ‘a country’s immigration policy affects who will share in controlling the country’s future’ (Wellman 2008, 115). Second, people have a special duty of distributive justice to their fellow compatriots and they may thus want to limit the number of people they share a morally significant political relationship with (Wellman 2008, 115).3 Wellman’s account faces a number of challenges. First, if his argument is merely about the freedom of association, there will be a question on why the freedom of association of a political community should always be prioritised over the freedom of association of its individual members. For instance, an individual member who wishes to engage in an intimate relationship with someone outside her state would have her freedom of association restricted by its immigration policies. It is unclear why the potential influence on future decisions is sufficient to justify a unilateral right to immigration control. For instance, individual autonomy entitles a person to determine her individual destiny, but this does not follow that everything that will affect a person will be protected by autonomy rights. Consider the following scenario: Andy has the habit of going to a nearby park to enjoy fresh air and work on his new novel. This habit of writing is important to Andy’s life project of becoming a successful novelist. It does not follow that Andy is entitled to prevent other visitors from coming to the park. Similarly, political self-determination does not entitle a state to have control over anything that can affect its destiny (van der Vossen 2015, 274–75). Changes in the composition and size of the population will have significant impacts on the provision of public goods and shape the available options for many public policies. However, if this gives a state the unilateral right to control who can enter its territory, then it also gives the state the right to control who can exit its territory. Emigration can have similar influences on the political future of a political community. For example, the emigration of relatively young and skilled workers will certainly have some impact on the future economic development of the country of

60  Kevin Ip origin. When immigration causes a significant and rapid shift in the political culture or when it is clear that the immigrants are motivated by the desire to subvert the original institutions of the host society, consideration for the preservation of self-determination can justify the limits on immigration flow. However, this does not support Wellman’s ‘stark conclusion’ regarding the state’s right to restrict immigration. Wellman also explained the significance of the freedom of association in the political realm by stating that it allows people to avoid unwanted obligations of distributive justice. ‘[J]ust as golf club members can disagree about the costs and benefits of adding new members’, he argued, ‘some citizens might want to open the doors to new immigrants (e.g. in order to expand the labour force), while others would much rather forgo these advantages than incur special obligations to a greater number of people’ (Wellman 2008, 115). It is worth asking whether this justification for the freedom of association in immigration will still have moral force when the state has not done its fair share in addressing global distributive injustice. This chapter cannot adequately defend a particular theory of global justice, but obligations of distributive justice can be obtained beyond borders. Most affluent societies have not met these obligations fully. These unmet obligations of global justice undermine the state’s right to exclude by appealing to the extra costs of admitting potential migrants. As Wellman acknowledged, while some states may decide to discharge their duties of distributive justice by opening their borders to the foreign poor, ‘those legitimate states that prefer to guard their membership more jealously are equally free to do so as long as they transfer the required resources abroad’ (2011, 68–69). States may not permissibly exclude poor migrants when they have not done their fair share toward alleviating global injustice because, first, in doing so, they take advantage of an unjust situation, and second, the victims of injustice have no moral reason to comply with these states’ decisions (for a more detailed discussion, see Ip 2020, 128–45). 2.1.3 The democratic account The third and final version of the self-determination argument is the democratic account, which identifies collective self-determination with democratic self-rule. This account has recently been defended by Margaret Moore and Sarah Song. Moore argued that members of a political community engage with each other in political projects that generate a set of valuable goods—such as social justice, freedom from arbitrary rule, and agency goods of shaping the future with particular others. By doing so, people form relations and attachments to a particular place and their aims and activities often rely on background assumptions about the physical space they live in (Moore 2015, 38–64, 197). These conditions give rise to a people’s claim to jurisdictional authority over a specific territory. Therefore, the right to control immigration—as part of a people’s territorial rights—is essential for any meaningful exercise of political

Self-determination and immigration control  61 self-determination. Following Walzer and Wellman, Moore (2015, 197) contended that ‘self-determination includes a right to determine what ‘the self’ is’, which means control over ‘the composition of the polity’. Nonetheless, it is not clear how this jurisdictional authority over a specific territory, deemed essential for collective self-determination, can be extended to include the right to exclude outsiders from entering. People’s attachments to a certain territory can perhaps justify their entitlement to having continuous access to the place and the right against forceful displacement, but it is far from clear that such attachments can entitle them to use coercion to exclude outsiders from the territory (Ypi 2013, 247–48). It is true that a group of individuals have engaged in a shared political project and have made successive decisions that transformed the conditions of their territory, which is a meaningful exercise of political self-determination. However, this does not necessarily follow that they are entitled to forcibly prevent others from entering that territory. This is a problem especially for Moore (2015, 191–92) as she tried to distance her arguments from the ‘property account’ of territory, which sees state territory as a collection of individual property holding. Song put forward another defence of the state’s right to restrict immigration by appealing to the value of democratic self-determination. She argued that immigration affects the conditions of democracy because ‘trust is more likely among a group of people who come together repeatedly within a stable infrastructure of institutions and who share a sense of trust rooted in a shared political culture’ (Song 2019, 67).4 She also argued that the right to control immigration derives from the authority of democratic decision-making. ‘It is up to members of the democratic community to debate, contest, and pressure their representatives on the particulars of the immigration policies they would like to see enacted’ (Song 2019, 69). She claimed that her argument did not depend solely on the presumed effects of immigration and offered the following hypothetical example: Imagine that a large group of Americans move to Cuba with the intent of settling there permanently and without going through any process by which Cubans could reflect and decide on whether to allow their presence in the country. Let’s further stipulate that the Americans do not move there with the intention of bypassing the collective ability of Cubans to shape and evaluate their character and future course and that their presence does not radically alter the character and values of Cuban society. (Song 2019, 73) Song maintained that the right to collective self-determination of the Cubans was undermined as American immigrants bypassed the Cuban’s collective decision-making process. However, it is rather unclear whether the democratic account can be applied to non-democratic regimes such as Cuba. If the right to immigrations control as a component of the right to self-determination ‘flows from the legitimate power of peoples to govern themselves’ (Song

62  Kevin Ip 2019, 73),5 then it should not be extended to non-democratic or illegitimate states—as their members do not participate on equal terms to determine their immigration policies. Even for legitimate states, the interests of the existing members must be weighed against those of non-members who seek to enter the territory. For instance, migrants escaping poverty and persecution in their home country may have a more urgent claim to cross borders than other economic migrants.

2.2 Self-determination as non-interference In international law, the most widely accepted notion of self-determination for states is negative sovereignty, which is freedom from external interference.6 This model of self-determination has been the central principle of classical international law and the legal foundation on which the international society of formally free and equal states rests (Jackson 1990, 26–28). This notion of self-determination identifies freedom with non-interference. Accordingly, a people or a state is self-determining only when it has the authority to exercise control over what is within its jurisdiction and no external agent can interfere or override with what the self-determining agent does. This notion entails no inherent obligations with respect to outsiders, except the reciprocal duty of non-interference (Young 2007, 45). The defenders of self-determination maintain that immigration policy falls within the jurisdiction of the state, which should be free from external interference as the deepest meaning of self-determination is to determine who the ‘self’ is. For instance, Wellman (2008, 114) argued that legitimate states ‘occupy morally privileged positions of dominion over their self-regarding affairs’ which include ‘control over membership in one’s state’. Miller (2016, 62) also considered immigration control ‘an essential lever in the hands of the demos’ without which the nation would lose control over its domestic policy options. Finally, Song (2019, 73–74) considered her argument a response to the question of who has the right to control immigration, but not how open or closed borders should be. In their theories, unconstrained immigration, which changes the composition of the population, undermines cultural homogeneity, and bypasses the democratic decision-making process of the host society, is a form of unwanted external interference. Hence, self-determination as non-interference provides a case against open borders and grounds a discretionary right for the people to exclude foreigners from their territory. This model of collective self-determination, however, is not without its problems especially when it is invoked to restrict the free movement of people. In the rest of this section, I identify two major problems with understanding self-determination as non-interference as applied to the context of migration. The first problem is about the legitimacy of border coercion, and the second is about internal migration. In the next section, I explore an alternative model of self-determination that can avoid these problems.

Self-determination and immigration control  63 2.2.1 Border coercion and external legitimacy It is clear that border control and immigration policies of any state are backed by coercion. Therefore, to be democratically legitimate, any regime of border control must allow foreigners to participate in the democratic institutions that determine the exercise of such control (Abizadeh 2008, 37–65). In response to this democratic argument for open borders, defenders of self-determination tend to argue either that border control is not coercive, or that border coercion can be justified to foreigners without giving them any representation in the decision-making process. Neither of these routes, however, is promising. Miller (2010, 111–20) argued that border control is not coercive because it involves only prevention—that is, it involves only forcing a person not to do a specific thing while leaving other options open. This view is implausible given that (1) border control typically implies that potential migrants who seek to enter without proper authorisation are liable to physical force or punishment; and (2) the existing international order gives all states the unilateral right to control their own borders so it is unlikely that sufficient options are left open to these potential immigrants. Wellman presented a different response to this democratic argument for open borders by asserting that in some contexts the unilateral use of coercion is permissible without granting democratic representation to those who are subject to such coercion. For instance, a property owner can permissibly and unilaterally use coercion to prevent intruders from entering his house without his approval. Thus, without denying that border controls are coercive and undemocratic to those who are excluded, Wellman (2011, 97–98) concluded that such coercion is justified. Without stating why I think the self-determination argument is unpersuasive again, I present two brief comments on Wellman’s analogy. The intuitive plausibility of Wellman’s analogy is owed to the violent nature of home intrusion—in his original analogy, the hypothetical intruders also threaten the personal safety of the owner, so the unilateral use of coercion is also grounded in the owner’s right to self-defence. However, this is not true in the case of immigration, as most immigrants seek to live peacefully in their host country. Besides, Wellman’s analogy is plausible only to the extent that the regime of private property in that particular society is itself legitimate. When the distribution of private properties is grossly unjust, the use of coercion to defend private property rights will become morally questionable. Wellman can respond by saying that this still does not entitle non-owners to have a democratic say over the owner’s decision, but we can conclude that unilateral coercion would be less defensible when background injustice undermines the legitimacy of the regime of private property. 2.2.2 The boundary of self-determination may not coincide with state borders Another problem with the non-interference model of self-determination is concerned with the drawing of boundaries between self-determining groups. Expanding the idea of individual autonomy to a political community will

64  Kevin Ip raise important conceptual and political issues around the idea of the ‘self’ that should be self-determining, that is, which collection of individuals should enjoy protection from external interference. Different versions of the self-determination argument have proposed different ways to decide which group or entity is entitled to political self-determination: a group is entitled to self-determination either by virtue of its shared cultural identity, political association, or a common political project. Yet, the proper boundaries of these political communities as agents of collective self-determination are subject to debate. For example, does the right to collective self-determination apply only to those entities that have already formed their own political institutions, or also to those that aspire to form such institutions? Even if we set aside the question of how to define a ‘people’ and their respective boundaries, there will still be a question of how to respond to the conflicts and dissent within a given political community. In many contemporary societies, relatively autonomous groups live among one another and group memberships are often plural, ambiguous, and overlapping (Young 2007, 49–50).7 Defenders of self-determination arguments certainly accept that not only states but also some sub-national groups are entitled to self-determination (Wellman 2014, 153–54). The right to the freedom of movement within the territory of a state is included in the International Covenant on Civil and Political Rights and is widely considered a fundamental human right, but it is at odds with some arguments made by the self-determination theorists. However, if states have the right to restrict international migration because it is central to their collective self-determination, does it mean that sub-national groups that have a right to self-determination should also possess the right to restrict internal migration? (For a similar argument, see Somin 2020, 116–20). But how can one defend the right to restrict international migration, as a central component of collective self-determination, while defending the freedom of internal movement? The first possibility for the proponents of self-determination argument is to point out a disanalogy between the international and domestic contexts. This response will have the following structure: (1) concerns for the freedom of movement are appropriate only when a certain property is present; (2) this property is present within a domestic society, but not in the transnational context; and (3) therefore, people should have the freedom of movement within a domestic society but not across borders (for the definition of a disanalogy argument, see Caney 2008, 487– 518; see also Ip 2016, 8). Yet, it is doubtful that this attempt will succeed (for a more detailed discussion of this issue, see Cole 2011, 160–1; Oberman, 2016, 32–56). For most proponents of self-determination argument as discussed in this chapter (Miller, Moore, Song, and Walzer), the state is a political instrument for the self-determining group. They argue that the agents of collective self-determination are not defined by statehood. Thus, the claimants of the right to self-determination need not be existing states. Alternatively, the proponents of self-determination can argue that restriction on internal mobility need not violate the human rights of the residents. First, some groups within an existing state have a moral right to political

Self-determination and immigration control  65 self-determination and form their own state. If they decide to do so, they would have the right to restrict immigration. Second, after the secession, the residents are likely to be left with a sufficient level of freedom of movement. Wellman (2016, 89–90), for example, used the hypothetical case of a new law prohibiting people from migrating across the Mississippi River as being permissible as Americans living on the east of the Mississippi River have a moral right to secede from the rest of the country and enjoy the right to restrict immigration. For Wellman, the Easterners’ moral right to selfdetermination depends on their ability and willingness to perform the requisite political functions of a state to adequately respect and protect human rights (Altman and Wellman 2009, 13–14). However, this conclusion seems rather problematic. Now, the freedom of movement of the residents on the west of the River has been clearly restricted by the decision of the State and this needs a justification stronger than merely saying that they would still be left with sufficient options, however defined with regards to mobility. There are some cases in which the restriction of internal mobility can be justified. For instance, the indigenous people in America have reason to be concerned about the large-scale immigration of individuals from the dominant group because it can potentially seriously undermine the minority group’s capacity for self-determination. Without control over the flow of migration, Moore (2015, 199–200) argued, minority groups can be increasingly marginalised in the larger society. The group’s right to self-determination would justify some restrictions on internal mobility. In many cases, these indigenous people seek political independence, but they certainly desire, and have a valid claim to, autonomy in regulating their own affairs. However, if one thinks that some sub-national groups can possess the right to selfdetermination and this right implies the right to restrict immigration, then it is hard to resist concluding that even internal migration can be restricted. In the next section, I argue that this problem can be solved once we adopt an alternative model of political self-determination.

2.3 Self-determination, non-domination, and the international migration regime I have argued that the non-interference model of collective self-determination is problematic when applied to the context of migration. However, there is an alternative model of self-determination according to which a group is self-determining when it is not subject to domination by external agents. According to Philip Pettit, someone dominates another to the extent that (1) he has the capacity to interfere (2) on an arbitrary basis (3) in certain choices that the other is in a position to make (1997, 52–53). Each of these points needs elaboration. First, the dominant agent must have some measure of control over what the dominated agent does and thereby worsen the latter’s choice situation. This aspect of domination can coexist with the absence of actual interference. For example, a dominated agent may be crafty enough to avoid interference by behaving in a way that pleases the dominant agent,

66  Kevin Ip but it remains true that the dominant agent keeps an eye on how the dominated agent is disposed to choose and is ready to interfere if the latter does not choose in the way he wants (see Pettit 1997, 63–65; see also Pettit 2008, 111–12). Second, interference is dominating only if it is arbitrary. This means that the interference is subject solely to the discretion or judgment of the agent and without reference to the relevant interests or ideas of those who are subject to it. Third, domination may only be present in certain domains or aspects of life and may not extend to others (Pettit 1997, 56–58). A final point is that relations of dominance can also exist between collective agents. Domination over a group will always constitute domination over the individual people belonging to that group by restricting what these individuals can collectively do (Pettit 1997, 52). Following Pettit’s definition of domination, Iris Young provided a relational interpretation of collective self-determination and argued that self-determination should be understood as non-domination: Peoples, that is ought to be free from domination. Because a people stands in interdependent relations with others, however, a people cannot ignore the claims and interests of those others when their actions potentially affect them. Insofar as outsiders are affected by the activities of a self-determining people, those others have a legitimate claim to have their interests and needs taken into account even though they are outside the government jurisdiction … Insofar as their activities affect one another, peoples are in relationship and ought to negotiate the terms and effects of the relationship … In a densely interdependent world, peoples require political institutions that lay down procedures for coordinating action, resolving conflicts, and negotiating relationships. (Young 2007, 51) More specifically, self-determination as non-domination implies that (1) a people have a prima facie claim against external interference; (2) those who are adversely affected by the activities of a group have the right to make claims against the group; (3) there should be recognised and settled institutions and procedures through which people negotiate the terms of their relationships; and (4) people have the right to participate in designing and implementing intergovernmental institutions aimed at minimising domination (Young 2007, 51). The non-domination model of self-determination, when applied to the context of migration and border control, has two major implications: (1) there are significant constraints on the state’s right to restrict immigration; and (2) an international system that grants states unilateral rights to restrict immigration is potentially dominating. If we are committed to the value of non-domination, then the international migration regime should be designed in a way that both political communities and individual migrants enjoy freedom from domination. From the perspective of self-determination as non-domination, placing constraints on the state’s right to restrict immigration need not compromise

Self-determination and immigration control  67 its right to self-determination (for this point, see Fine 2014, 10–30). The value of non-domination will grant states and any political community a right against settlement or colonisation, which is a form of domination by external agents.8 Nonetheless, this right against settlement does not amount to a discretionary right to restrict immigration. For instance, states have a legitimate interest in preserving their political institutions from being fundamentally changed by a large rapid influx of immigrants (Stilz 2019, 199). But this legitimate interest does not provide any justification for the states’ right to select migrants according to their potential economic contributions, such as selectively opening their borders to high-skilled workers or wealthy investors, which is now a common practice among affluent countries in the Global North. None of the self-determination theorists have argued that the state’s right to immigration control is absolute. They are against ethnic or racial selection, endorse the duty to accept refugees and family reunions, but they consider economic selection morally permissible and within the scope of the state’s self-determination (Moore 2015, 209–10; Miller 2016, 82–86; Song 2019, 170–72).9 More importantly, our world is characterised by profound and pervasive injustice, and this makes it necessary to circumscribe the affluent states’ right to exclude potential migrants by their duty toward global distributive justice. In cases where these affluent states have not done their fair share in alleviating global injustice, limiting their discretion in selecting and excluding migrants is not a violation of their right to self-determination. Four arguments can be presented for this view. First, if an agent has benefited from injustice or wrongdoing, then this agent has no right to deny the access of victim(s) to such benefits. Second, it is morally impermissible for an agent to actively take advantage of an unjust situation, as affluent states use their economic advantage to ‘cherry pick’ immigrants. Third, background injustice inevitably undermines the international border system’s claim to legitimacy, as it is difficult to justify the system to individuals who are unjustly disadvantaged. Finally, the right to resist global injustice can imply a right to act contrary to the immigration restrictions imposed by affluent states.10 Self-determination as non-domination requires that, insofar as the activities of a group adversely affect other or generate conflicts, those affected have a right to make claims on the group and negotiate the terms of their relationship. Self-determination as non-domination requires that people have the right to participate in designing and implementing supranational institutions aimed at minimising domination (Young 2007, 51). Nonetheless, the existing system of international society grants states a unilateral and discretionary right to restrict immigration without any recourse for potential migrants to contest these decisions, which have a profound impact on their well-being. Non-domination requires the interests of migrants to be properly represented in the decision-making process. The global procedural system proposed by Christopher Bertram can meet this requirement. Such a regime would involve an international convention ‘arrived at after discussions that would involve a range of different actors’, such as states, NGOs, and a ‘representative selection of affected persons’. The convention would

68  Kevin Ip include a set of principles with a presumption in favour of free movement and a set of reasons why free movement can be overridden under specific circumstances. Such a convention, once agreed upon, would be administered by an international adjudicatory agency (Bertram 2018, 68–73). This procedural regime does not require open borders but imposes constraints on the state’s right to restrict immigration in a way that is compatible with their collective determination as non-domination. Another point to note is that freedom of international movement actually promotes non-domination at the global level. This is because, when there are extensive opportunities for migration, individuals can use their exit rights more effectively to escape unwanted impositions in their home country and hence significantly reduce the conditions of domination (Somin 2020, 27–30). Here, I do not claim that a right to exit entails the right to entry. As observed by Philip Pettit, assume that your state allows you a right of emigration and does not confine you within its boundaries; if it did, it would certainly dominate you. It is still going to be the case that other states cannot guarantee your entry, given the political necessity for states to maintain their borders and disallow open access. (2012: 161) In short, an effective right to exit does help promote non-domination as it offers individuals a greater range of options to disengage from dominating relationships. Nonetheless, if we take the value of non-domination seriously, we should conclude that the state’s right to control immigration must be qualified by their obligation to respect the prospective migrants’ right to equal freedom as non-domination. For instance, admitting people who are fleeing from oppression by their original state certainly help to promote freedom of non-domination, provided that doing so would not cause ‘internal malfunction or collapse’ (Pettit 2012, 161). Although this does not necessarily require open borders, states are obligated to admit refugees and necessitous migrants. To motivate support for the non-domination approach to the ethics of immigration control, I discuss three cases in which it can better handle the potential conflicts between collective self-determination and the freedom of movement. I hope to show that the non-domination approach can better impact our considered judgments regarding the normative significance of political boundaries in some real-world contexts. The first case is border coercion. From the perspective of non-domination, however, border coercion is not inherently dominating. Selfdetermination as non-domination offers two insights in this case. First, it is not the case that everyone is equally coerced by border controls of other states and is therefore entitled to participate in the democratic processes regarding these decisions. Although the international system of border control certainly interferes with every individual’s freedom of international

Self-determination and immigration control  69 movement, not all people are subject to domination under this system. Therefore, we should distinguish between different individuals’ claims to cross international borders. Those who have an urgent claim to cross international borders but have no power to contest the decision of foreign states are subject to domination. For instance, individuals who have to migrate into another country to escape poverty or oppression but are rejected are certainly vulnerable to domination. This should extend to those who would be likely to migrate if only there is a realistic chance of being accepted. However, those who would otherwise have a decent life in their original country and are not victims of global injustice are not necessarily dominated by the regime of border control (Honohan 2014, 39).11 Consider, for example, a well-off professional living in a prosperous liberal democracy may want to move to another country for career advancement. Her claim to freedom of immigration may be less urgent than that of a person living under an autocratic regime who seeks to escape political repression through migration. A second case to be considered is that of internal migration within a given state. If we are to interpret the concept of self-determination as merely non-interference, it would be hard to explain why restrictions on internal migration are justified in some cases, but not in others. From the perspective of self-determination as non-domination, certain restrictions on internal freedoms of movement are justified to the extent that they reduce conditions for domination to take place, provided that these restrictions are not dominating themselves. For instance, to preserve the autonomy and prevent further marginalisation of some indigenous groups, the groups themselves may have reason to place some limits on the influx of internal migrants into certain areas where they (the indigenous groups) have traditionally resided. Consider the case of the indigenous groups facing large-scale internal migration. These groups could be subject to domination when there is uncontrolled large-scale immigration of the dominant group into their local community. What could justify the restriction on internal migration is not that a self-determining sub-state unit have a right not to associate with certain individuals as they see fit. Instead, what motivates our support for the restriction is perhaps that such internal migration can augment the marginalisation of minority groups that are culturally distinctive. The institutional framework that regulates people’s interactions with each other should be structured to minimise domination. Individuals whose freedom of movement is restricted by the collective will of some of their fellow citizens are owed a justification even if they still have sufficient alternatives. Another case that can shed light on the issue is the phenomenon of ‘gentrification’. In many major cities, the influx of wealthier residents and businesses into some urban districts has driven up the rent rapidly, forcing some long-term residents and local businesses to move out. To prevent marginalisation, which is a form of domination, of the poorer population living in urban areas, the state may justifiably place some restrictions on internal movement, such as rent control (Zimmer 2017, 51–80).

70  Kevin Ip

Conclusion If the arguments advanced in this chapter have been convincing, we have reason to think that collective self-determination does not grant states a unilateral and discretionary right to control immigration. This does not amount to a positive argument in favour open borders (for such arguments, see Carens 1987, 251–73; 2013; Cole 2011, 158–313; Oberman 2016). Grounding the right to self-determination on the value of non-domination, however, implies that a state’s right to exclude foreigners should be significantly constrained and should be weighed against the strength of the claims of potential migrants.

Notes 1 Emphasis in the original. Interestingly, Walzer thought that the community’s discretion over naturalization is entirely constrained. Thus, every migrant, refugee, worker, and resident they have admitted must be offered an opportunity for citizenship. 2 In his earlier work, Miller appeared to think that shared national identity and cultural homogeneity are necessary conditions for democracy to work. See David Miller, On Nationality (Oxford: Oxford University Press, 1995), 92. 3 Another reason that Wellman (2008, 115–16) offered is that citizens care passionately about immigration. 4 The response to this line of reasoning can be found in the previous discussion on Miller’s cultural-nationalist account. 5 Emphasis added. 6 See, for example, Article 2 (4) of the UN Carter. 7 If self-determination should be understood as a form of non-interference, then there is a danger of the dominant group using state power to dominate over or exploit the minorities and claim non-interference. 8 Here, I refer to settler colonialism in which a group of people settle into another inhabited geographical location, with the aim of creating an outpost of the society from which they came. 9 However, Wellman seemed more reluctant to make this concession as he sought to defend a “stark conclusion” that “every legitimate state has the right to close its doors to… even refugees.” See Christopher H. Wellman, “Immigration and Freedom of Association,” Ethics 119 (2008), 109. 10 I argued elsewhere that affluent states lack the right to select migrants for their economic contributions unless they have done their fair share in alleviating global injustice, see Kevin K. W. Ip, “Selecting Immigrants in an Unjust World,” Political Studies 68, 1(2020), 128–45. 11 Or, if these individuals are subject to domination at all, the intensity of such domination would be much lower compared with the domination facing refugees or migrants in need.

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Self-determination and immigration control  71 Altman, Andrew and Christopher H. Wellman. 2009. A Liberal Theory of International Justice. Oxford: Oxford University Press. Bertram, Christopher. 2018. Do States Have the Right to Exclude Immigrants? Cambridge: Polity Press. Blake, Michael. 2012. ‘Immigration, Association, and Antidiscrimination.’ Ethics 122, no. 4 (July): 748–62. Brady, David and Ryan Finnigan. 2014. ‘Does Immigration Undermine Public Support for Social Policy?’ American Sociological Review 79, no. 1 (February): 17–42. Caney, Simon. 2008. ‘Global Distributive Justice and the State.’ Political Studies 56, no. 3 (October): 487–518. Carens, Joseph. 1987. ‘Aliens and Citizens: The Case for Open Borders.’ Review of Politics 49, no. 2 (April): 251–73. Carens, Joseph. 2013. The Ethics of Immigration. Oxford: Oxford University Press. Cole, Phillip. 2011. ‘Part II: Open Borders: An Ethical Defense.’ In Debating the Ethics of Immigration: Is There a Right to Exclude?, edited by Christopher H. Wellman and Phillip Cole, 158–313. Oxford: Oxford University Press. Fine, Sarah. 2014. ‘Non-Domination and the Ethics of Migration.’ Critical Review of International Social and Political Philosophy 17, no. 1 (January): 10–30. Honohan, Iseult. 2014. ‘Domination and Migration: An Alternative Approach to the Legitimacy of Migration Controls.’ Critical Review of International Social and Political Philosophy 17, no. 1: 31–48. Ip, Kevin K. W. 2016. Egalitarianism and Global Justice: From a Relational Perspective. New York: Palgrave MacMillan. Ip, Kevin K. W. 2020. ‘Selecting Immigrants in an Unjust World.’ Political Studies 68, no. 1: 128–45. Jackson, Robert H. 1990. Quasi-States: Sovereignty, International Relations, and the Third World. Cambridge: Cambridge University Press. Mason, Andrew. 2000. Community, Solidarity and Belonging: Levels of Community and Their Normative Significance. Cambridge: Cambridge University Press. Miller, David. 1995. On Nationality. Oxford: Oxford University Press. Miller, David. 2007. National Responsibility and Global Justice. Oxford: Oxford University Press. Miller, David. 2010. ‘Why Immigration Controls Are Not Coercive: A Reply to Arash Abizadeh.’ Political Theory 38, no. 1 (February): 111–20. Miller, David. 2016. Strangers in Our Midst: The Political Philosophy of Immigration. Cambridge, MA: Harvard University Press. Moore, Margret. 2015. A Political Theory of Territory. Oxford: Oxford University Press. Oberman, Kieran. 2016. ‘Immigration as a Human Right.’ In Migration in Political Theory: The Ethics of Movement and Membership, edited by Sarah Fine and Lea Ypi, 32–56. New York: Oxford University Press. Orgad, Liav. 2015. The Cultural Defense of Nations: A Liberal Theory of Majority Rights. New York: Oxford University Press. Pettit, Phillip. 1997. Republicanism: A Theory of Freedom and Government. New York: Oxford University Press. Pettit, Phillip. 2008. ‘Republican Freedom: Three Axioms, Four Theorems.’ In Republicanism and Political Theory, 111–12, edited by Cecile Laborde and John Maynor. Oxford: Blackwell. Pettit, Phillip. 2012. On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge: Cambridge University Press.

72  Kevin Ip Somin, Ilya. 2020. Free to Move: Foot Voting, Migration, and Political Freedom. New York: Oxford University Press. Song, Sarah. 2019. Immigration and Democracy. New York: Oxford University Press. Stilz, Anna. 2019. Territorial Sovereignty: A Philosophical Exploration. New York: Oxford University Press. United Nations. 1945 Charter of the United Nations, www.un.org/en/sections/ un-charter/un-charter-full-text/. United Nations. 1966. International Covenant on Civil and Political Rights (ICCPR), www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. van der Vossen, Bas. 2015. ‘Immigration and Self-Determination.’ Politics, Philosophy and Economics 14, no. 3 (August): 270–90. Walzer, Michael. 1983. Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books. Wellman, Christopher H. 2008. ‘Immigration and Freedom of Association.’ Ethics 119, no. 1 (October): 109–41. Wellman, Christopher H. 2011. ‘Part I: Freedom of Association and the Right to Exclude.’ In Debating the Ethics of Immigration: Is There a Right to Exclude?, edited by Christopher H. Wellman and Phillip Cole, 13–155. Oxford: Oxford University Press. Wellman, Christopher H. 2014. Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty. New York: Oxford University Press. Wellman, Christopher H. 2016. ‘Freedom of Movement and the Rights to Enter and Exit.’ In Migration in Political Theory: The Ethics of Movement and Membership, edited by Sarah Fine and Lea Ypi, 80–104. New York: Oxford University Press. Young, Iris Marion. 2007. ‘Two Concepts of Self-determination.’ In Young, Global Challenges: War, Self-determination, and Responsibility for Justice, edited by Iris Marion, 39–57. Cambridge: Polity Press. Ypi, Lea. 2013. ‘Territorial Rights and Exclusion.’ Philosophy Compass 8, no. 3 (March): 241–53. Zimmer, Tyler. 2017. ‘Gentrification as Injustice: A Relational Egalitarian Approach to Urban Housing.’ Public Affairs Quarterly 31, no. 1 (January): 51–80.

3 International borders, immigration, and nondomination Joshua J. Kassner

Introduction Whether it’s families fleeing war in the Middle East, Central Americans traveling thousands of miles to escape gang violence, or countless others making the difficult choice to seek a better life in places far from their homes, it is hard to overstate the moral and political significance of immigration and the impact that borders have on the lives of millions around the world. For those seeking to migrate, on one side of a border is a life of insecurity and deprivation, and on the other, potential salvation. As such, the need to morally assess international borders is overdetermined. This is not to say that there hasn’t been scholarly work on the matter. In fact, there is an intense debate over the ethics of immigration and the moral nature of borders and border control. The current debate is, however, grounded in a flawed argumentative strategy. In an effort to avoid this mistake, I have adopted an approach that is more holistic in its moral assessment of borders and border control. Specifically, relying on the republican commitment to freedom as nondomination, I argue that international borders contribute to the domination of millions around the world while also recognising that those same borders protect political communities from domination by safeguarding their collective right to political self-determination. This may seem to be an intractable dilemma, but by focusing on freedom as nondomination as opposed to either the right to free movement or the collective right to political self-determination, we have a principled basis for evaluating the legitimacy of international borders. I contend that assessing the legitimacy of a state’s borders and border control policies requires an assessment of both the border control policies of a state and the policies the state pursues to protect distant others from domination. To be specific, I argue that the policies the state pursues and the resources expended to protect distant others from domination must be (at least) proportionate to the discretion exercised by the state in its immigration and border control policies and inversely proportionate to the strictness of the specific policies pursued. In an effort to make the transition from theory to practice, I conclude this chapter by applying this framework to the United States’ (US) relationship with the ‘Northern Triangle’ of Central America. DOI: 10.4324/9781003102717-5

74  Joshua J. Kassner

3.1 Preliminary matters There are several matters that need to be addressed before proceeding. First, to ensure that the significance of the project is appreciated, I will briefly explain the importance of the underlying inquiry, as well as the scholarly and practical significance of the arguments provided and argumentative approach taken here. Additionally, since the central argument is grounded in the proposition that legitimacy depends on respecting the right of individuals to be free from nondomination, to understand the argument one must have a working understanding of freedom as nondomination and the notion of legitimacy relevant to this inquiry. Regarding the ethical importance of this inquiry, millions around the world are seeking to migrate but are prevented from doing so by international borders. Additionally, despite the fact that borders often determine how well a person’s life goes, borders are, from an individual migrant’s perspective, largely arbitrary. These facts alone make international borders worthy of moral evaluation. Additionally, the arguments that follow have significant implications for international political and moral theory. There is a growing interest in the implications republican theory has for our understanding of the normative framework of international relations. This inquiry assesses the implications the republican commitment to freedom as nondomination has for the legitimacy of international borders; and, since the normative framework of international relations is based on territorial sovereignty, discussing the legitimacy of international borders contributes considerably to our understanding of the moral nature of that normative framework. Additionally, as noted, in assessing the moral nature of international borders, I have taken a novel argumentative approach, contending that many on both sides of the current debate have adopted a flawed argumentative strategy. Namely, they rely on ceteris paribus arguments to justify their preferred presumptions. Ceteris paribus arguments, however, merely establish relevance and cannot, without more argument, justify a presumption. Thus, to avoid this mistake, I rely on a more holistic assessment; consequently, even if one disagrees with my conclusions, I hope that they find the approach insightful. As to the inquiry’s practical significance, borders are political artefacts created to serve some practical end. Thus, borders are contingent, and their conventional normativity and the discretion states have over them are within our control. Consequently, since borders have a dramatic impact on individual lives, and since we control borders and their conventional normativity, they are appropriate objects of moral concern, and their use needs to be justified. In the discussion that follows, I offer a principled basis for assessing the legitimacy of existing international borders, which informs our thinking about what reforms, if any, are needed to render such borders and their use (more) legitimate. This inquiry is built around the proposition that the legitimacy of any political principle, practice or institution depends on the respect it shows to

International borders, immigration, and nondomination  75 each individual’s right to be free. There are, however, competing conceptions of freedom as a political and moral value (see Berlin 1969). Consequently, to understand the argument, one must understand the conception of freedom being relied upon. Perhaps the most important distinction is grounded in the proposition that conceptions of freedom can be categorised as either positive or negative (Berlin 1969). The latter assume that freedom’s value is found in being protected against ‘interference [by] other human beings within the area in which [one] could otherwise act’ (Berlin 1969, 169). Positive freedom, on the other hand, is about freedom to be ‘one’s own master’ (Berlin 1969, 178), and is often argued to imply substantive entitlements beyond those implied by negative conceptions of freedom (Berlin 1969, 178). Nonetheless, the conception of freedom with which I am concerned is negative. It is to be protected against certain types of relationships. Even though Berlin equated negative freedom with freedom as non-interference (Berlin 1969, 178), negative freedom can also be understood as nondomination (Pettit 1997; Skinner 2010). On this point, freedom as nondomination shares its intellectual lineage with freedom as non-interference (Sellers 1998). Both conceptions originated in the post-enlightenment liberal project’s commitment to individual liberty (Sellers 1998). The two conceptions have over time, however, evolved along different paths. Consequently, even though both conceptions are negative, further explanation is needed if one it to understand what is distinctive about freedom as nondomination. To begin, let us accept the definitional claim that freedom as non-interference requires that one not be interfered with (Berlin 1969; Lichtenberg 2014) and that freedom as nondomination requires that one not be subject to the arbitrary will of another (Pettit 1997; Skinner 2010). These competing conceptions of political freedom, though both negative, have significantly different practical implications. To clarify the practical difference between these two conceptions of freedom, consider Isaiah Berlin’s example of the benevolent despot: Just as democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom. The despot who leaves his subjects a wide area of liberty may be unjust, or encourage the wildest inequalities, care little for order, or virtue, or knowledge; but provided he does not curb their liberty, or at least curbs it less than many other regimes, he meets with Mill’s specification [of liberty as non-interference]. (Berlin 1969, 176) Though there are likely additional conditions for legitimacy our benevolent despot fails to satisfy, he does satisfy what is required by freedom as non-interference (Berlin 1969, 176). He does not, however, satisfy the demands implied by freedom as nondomination. Under his rule, a citizen’s ‘area of

76  Joshua J. Kassner liberty’ depends on the despot’s will, thus their freedom depends on the arbitrary will of another. Even if he never restricts their liberty, that he has the power to do so makes her subjects less free. There are two additional points about the conception of freedom as nondomination worth mentioning. First, in my considered judgement, defended elsewhere, freedom as nondomination is the best account of freedom as a political and moral value (Kassner 2019). And, second, I am assuming that freedom as nondomination justifies a right to be protected against domination. This is not an uncontroversial position, even within republican theory itself (Skinner 2010). Nonetheless, even if one denies that freedom as nondomination can justify a right, defeating the underlying argument requires a demonstration that freedom as nondomination is irrelevant to our moral assessment of international borders and the ability of individuals to cross them. It is also important to understand what it is that individuals are taken to have a right to be protected from, namely domination. There are many useful ways to think about domination, but for my purposes, I am relying on a Hohfeldian understanding. For those unfamiliar with Hohfeldian typology, a brief statement of its origins and usefulness may be in order. Wesley Newcombe Hohfeld (1920) sought to bring order to the, at times chaotic, discourse surrounding legal rights. In so doing, he provided us with a framework for understanding the constitutive elements of various norms and the relationships that are defined by them. With one of the most significant aspects of Hohfeldian typology being the need to identify the normative benefits or burdens correlative to a norm or right. Relying on Hohfeldian typology has become commonplace in moral, political, and legal philosophy, allowing for productive conversations within and across disciplines. Thus, if we start with the natural language proposition that to be dominated is to be subject to the arbitrary will of another, what this means in Hohfeldian terms is that those who are dominating others possess a power and an immunity, and those subject to such domination possess a correlative liability. To clarify, dominators are able to alter the normative status of those the dominate, and the dominated bear the correlative liability to have their normative status altered by those who dominate them. Further, to capture the fact that domination is about being subject to the arbitrary will of another, the dominator must have discretion over whether and how they wish to exerciser their power. An agent has such discretion when they are protected against interference with the exercise of their discretion. As such, dominators are immune from outside interference when they are acting within the normative breadth of their power. Correlative to this immunity is a no power—an inability on the part of the dominated to control their status when within the normative breadth of the dominator’s power. This Hohfeldian understanding of relationships of domination may, at present, seem abstract, but the practical usefulness of this approach should become apparent later in this discussion.

International borders, immigration, and nondomination  77 As this is an assessment of the legitimacy of international borders and border control, and since the meaning of legitimacy is ambiguous, clarification is needed. Legitimacy, as it is understood here, is a moral notion. It is not about what is permitted under the law (legal), nor is it about what is most effective at achieving some end (prudential), nor is it about our collective social beliefs (sociological). Rather, the notion of legitimacy with which I am concerned is about moral desert, and whether a principle, practice or institution deserves our respect (Peter 2008). The significance of this distinction is most apparent when one considers that it is possible for a principle, practice, or institution to be legally, prudentially and/or sociologically legitimate, but not deserving of our respect. One need only consider an unjust law (legal legitimacy), the abuse of a position of power to achieve one’s ends (prudential legitimacy), or an unjustifiable but extant collective belief in the inferiority of an ethnic minority (sociological legitimacy) to understand the distinction’s significance. Finally, as there is so much ambiguity surrounding the meaning of legitimacy, even—and perhaps especially—among those who employ it as a moral notion, it is likely that many will find the notion adopted here flawed in some way. As such, since it is merely being asserted and not defended, for those who find this notion mistaken, I ask that they consider the argument to be about the moral nature of international borders more broadly understood and not solely as an argument about legitimacy. Adopting this alternative perspective does little to undermine the significance of the argument as the implications it has for how we ought to think about the moral nature of international borders remain largely unaffected.

3.2 The argument: explanation, defence, and application Assessing the legitimacy of international borders begins with the development of a provisional argument that establishes the relevance of freedom as nondomination to this inquiry. The following is a formal statement of the underlying provisional argument: Premise 1:  The legitimacy of social and political principles, practices and institutions depends on the extent to which such institutions respect each individual’s right to be free from domination. Premise 2: International borders (and border control) are political institutions. Conclusion: T  herefore, the legitimacy of international borders (and border control) depends on the extent to which they respect each individual’s right to be free from domination. Regarding the first premise, assuming we are committed to respecting one another as moral equals and as rational and autonomous agents, any political institution that makes the freedom of some dependent on the arbitrary will of others fails to satisfy those commitments, weakening whatever claim to

78  Joshua J. Kassner our respect it might have (Skinner 2010). If true, then we have good reason to accept the first premise. Regarding the second premise, one might object that international borders define the jurisdiction of political institutions but that they are not political institutions themselves. Since the objection depends on it being the case that international borders are not political institutions, whether we ought to be moved by this objection depends on how we understand what it is to be a political institution. Though an oversimplification, political institutions are artefacts of our shared political life, constituted by practices and principles, some formal and some informal, constructed to coordinate our efforts to fulfil political purposes. International borders are constituted by a bundle of conventional rules and principles constructed to serve various political purposes and are regularly claimed to deserve respect. As such, it is appropriate to consider international borders as political institutions. If correct, then both premises of the argument should be accepted, and we are committed to accepting both the conclusion and the proposition that the legitimacy of international borders depends on the extent to which they contribute to, or protect individuals from, domination. In short, whether international borders and their use contributes to domination is relevant to our assessment of their legitimacy. There are, however, several objections worth considering. The first comes from within republican theory itself, grounded in the proposition that to be free from domination an individual must be a member of a free state (Pettit 1997; Skinner 2010). To be free, a state must not answer to political outsiders. Thus, requirements that make the state accountable to non-citizens undermines the state’s freedom, threatening each citizen’s right to be free from domination. One implication of the claim that the legitimacy of international borders depends on the extent to which those borders contribute to systems of domination is that states bear moral burdens owed to non-members, making states less free. If true, the provisional argument conflicts with the republican belief that freedom as nondomination requires that individuals be members of a free state. The republican belief in the relationship between nondomination and a free state is based on the proposition that an individual’s freedom from domination requires that their right to political self-determination be respected. This requires that the members of a political community participate as equals within the community’s political decision-making processes, and that their decisions are not subject to the arbitrary will of non-members (Skinner 2010). Thus, by being citizens of a free state individuals are able to exercise their right to political self-determination, ensuring they are not subject to domination. In short, the state must be free because, if it is not, then the right of individuals to political self-determination is compromised thus compromising their right to be free from domination. But, since it is only when the burdens borne by an agent are arbitrary that they constitute domination, this objection requires that all moral burdens

International borders, immigration, and nondomination  79 borne by a state and owed to outsiders count as arbitrary impositions on the state in question. Consequently, if there are some such burdens that are not arbitrary, then the objection fails. In the present case, whether the demand that states constrain their border control policies to avoid contributing to the domination of distant others is an arbitrary imposition on the freedom of a state, and thus impermissible, depends on whether there are any principled limits to the right to political self-determination. One such principled limit to the right to political self-determination is found in the value of political self-determination itself. Under a republican account, political self-determination is valuable to the extent that it protects against domination. Understanding the instrumental nature of the value of political self-determination illuminates a limit to the right that is central to this discussion. Namely, a political community has a right to political self-determination up to the point at which the exercise of political self-determination causes others to be dominated. As this comes from within republicanism itself, this is a principled, not arbitrary, limitation. Further, since the underlying justification for the right to political self-determination is its value as a means to satisfying the demand that each individual’s right to nondomination be respected, we can also conclude that there is a duty to refrain from contributing to the domination of distant others and this burden is not inconsistent with the right to political self-determination. Another objection from within republican thought is derived from the republican belief that to be free from domination individuals must be equal before the law which requires membership in a state governed by a single legal system (Pettit 1997, 28). If true, then there is a significant problem for any account that seeks to apply republican conceptions of freedom to the international arena, because, despite the cosmopolitan rhetoric—of which I am fond—there are no global citizens. Thus, it is argued, it is only possible to understand republicanism and freedom as nondomination within the context of the territorially defined sovereign state. Like political self-determination, the republican commitment to equality before the law is a contingent implication of the value of freedom as nondomination. It is a contingent fact about the social and political world in which we live that the world is divided into states rather than a global political community and that membership in a state and equality before the law have served to protect individuals from domination. The value and limitations of these commitments depend on the extent to which they serve freedom as nondomination. The practices, principles, and institutions that govern our social and political lives find their legitimacy in their ability to protect the right of individuals to be free from domination. They are not valuable in-and-of-themselves. Freedom as nondomination is normatively prior to, and constrains, the choices we make regarding how we legitimately govern our shared political lives. We no longer live in a world where our lives are insulated from the impact of social and political forces originating from outside of our borders.

80  Joshua J. Kassner Thus, citizenship in and equality before the law of a state are no longer sufficient protection for many. In which case, we have good reason, based on our commitment to freedom as nondomination, to evaluate the extent to which international borders contribute to, or protect against, domination. There are two objections external to republican thought worth considering, both are raised against claims that there are moral burdens that cross international borders. The first is often called ‘the argument from compatriot priority’, and the second is grounded in the proposition that states are the primary (if not the only) agents worthy of moral consideration in the international arena. Both objections admit of strong and moderate versions. The stronger versions are offered as categorical reasons to reject all moral obligations to distant others. The moderate versions allow for such obligations, merely contending that extra weight should be given to the interests of one’s compatriots or to the interest of states (see Carens 2013). Since it is only the strong versions that are problematic for the provisional argument, they are my only concern. Under the argument from compatriot priority, it is claimed that we owe special duties to fellow members of our political community, our compatriots. Under the strong version of this argument, these duties are taken to exhaust the moral space. We should be praised for choosing to help distant others in need, but such acts are supererogatory because one’s obligations extend only so far as one’s compatriots. If true, then a state would be unjustified in taking up any duties owed to non-compatriots, as that would unjustifiably burden its members with duties they do not have. There are several reasons for rejecting this argument (see Kassner 2012). First, that I have special obligations to some does not imply that I cannot have obligations to others. Second, strong compatriot priority has morally absurd implications for relatively uncontroversial norms like the duty not to harm (Pogge 2002, 2005). If true, then states would not have a duty to refrain from harming distant others. Third, and finally, in a world where individuals are ever more globally interconnected, it is odd to think that our (political) compatriots are the only ones with whom we share the sort of relationship capable of generating moral obligations. In the end, we have good reason to reject strong compatriot priority. As noted, the second, statist objection assumes that states are the primary—if not the only—agents worthy of moral concern in the international arena. If true, then like compatriot priority, there are no moral obligations owed by states to distant others. Strong statism fails for reasons similar to those levied against strong compatriot priority. The implications are morally absurd and the importance of states to the normative framework of international relations can be respected without precluding the moral consideration owed to individuals (Kassner 2012). In addition, the assumption about the extent to which the interactions of states define the morally relevant interactions of agents in the international arena doesn’t accord with reality. The range of actors isn’t limited to states or intergovernmental organisations, but

International borders, immigration, and nondomination  81 includes individuals, corporations, and non-governmental organisations among others (Beitz 1979). The limitations of the strong statist view are only more striking when one considers the significance of human rights in international law and relations. Strong statism is unable to accommodate contemporary human rights law and practice, including the evolving Responsibility to Protect doctrine. For these reasons, we should reject strong statism and strong compatriot priority for, at best, moderate views that recognise the special relationship we have with our compatriots and the continued value of the state without sanctifying either. In either case, there is conceptual room for the proposition that states have obligations not to contribute to the domination of distant others.

3.3 Evaluating the legitimacy of international borders From the previous section we can conclude that the legitimacy of international borders depends on the extent to which they protect individuals from domination; and having addressed various objections to that view, we can now assess the extent to which borders contribute to domination. To clarify, this is not a discussion about how borders could be employed in legitimate ways. Rather, this is about assessing the legitimacy of international borders as they exist and operate. There are two distinct but related perspectives from which we can make this assessment, one conceptual and the other applied. The conceptual perspective recognises that the normative framework of international relations is committed to state sovereignty, and that this commitment to state sovereignty implies a commitment to territorially defined political authority and jurisdiction. Consequently, international borders are linked to the rights and powers of sovereign states. Implicit in this understanding of the rights held by sovereign states is a Hohfeldian power that includes the power of states over the normative status of migrants. The state decides who can enter and why, and what their status will be once they enter. Correlative to this power is a liability borne by those seeking to migrate. Their status can be altered by sovereign states—possessors of the relevant power. Lastly, sovereign states have a Hohfeldian immunity against interference with their choices. Correlative to this immunity is the fact that other states have no power to interfere with the policy choices of the state in question nor do individuals have any power to control their status when within the normative breadth of the state’s power over them. Thus, under our current conventional understanding of the rights of states to control their borders, states have nearly unfettered discretion over their borders, including wide discretion over who or what crosses them. This supports the proposition that the current principles and practices governing international borders contribute to the domination of migrants around the world. Like the benevolent despot, it is the fact that a state has such power over its borders and those who wish to cross them that establishes a

82  Joshua J. Kassner relationship of domination, since the status of migrants depends on the arbitrary will of another. Consequently, even before a state has decided how it will wield this power, a prima facie case for domination exists. The case for domination is only made clearer when we consider how states have, in fact, chosen to use this power. As noted, states have the discretion to decide, for reasons they determine to be relevant, how to use their territorially defined normative powers. Understanding the ways in which this discretion is used and the contribution such choices make to the domination of individuals can be understood from two distinct, but related, perspectives. There are the direct impacts of the policies that regulate international borders, and the indirect impacts such policies have in practice. As to the direct impacts, the discretionary power states possess to control migration across their borders is almost always used to limit migration. Additionally, those who are permitted to cross can only do so if they satisfy the conditions for admission set by the receiving state, conditions over which those seeking to migrate had no say. For example, consider the ‘Einstein’ visas in the US, where those with unique and highly sought-after skills are allowed to immigrate. Others, with less unique skills, provided there is a need, can enter a lottery to try to obtain a visa. As another example, across the world, political and economic refugees are treated differently, the former finding their status makes them worthy of protection, with the latter often viewed as opportunists, even though their prospects for a decent life in their native countries may be dim. This is not to say that all states’ policies have the same impact. For example, the European Union’s (EU) Schengen zone is a notable exception; however, even in the case of the EU, it isn’t that territorial boundaries are open, rather, their impact is elevated from the state to the region. It is still the case that individuals who are not citizens of EU countries are limited in their ability to enter, and their legal status remains subject to the broad discretion of the EU and its member states. More to the point, the possibility remains that the boundaries that are now porous could become closed again. With the United Kingdom leaving the EU, this is more than a mere theoretical possibility. Ultimately, the policies that have been enacted have subjected individuals to the arbitrary wills of others. As to the indirect effects of a state’s border control policies, it is useful to frame this in terms of Albert Hirschman’s (1970) seminal work, Exit, Voice and Loyalty. According to Hirschman (1970), members of an organisation can either exit the organisation, speak out in favour of or against the existing state of affairs, or remain loyal to the organisation. For this discussion, this is about more than a mere description of what the possibilities for the members of an organisation are. Understanding how opportunities for exit, voice and/or loyalty relate to one another has important normative implications. Collectively, they represent some of the central elements of political freedom. Ideally, a citizen would have all three fully available. In our non-ideal world, such unrestrained opportunity does not exist; one’s access to exit, voice or (freely chosen) loyalty is nearly always restrained.

International borders, immigration, and nondomination  83 It is important to note that a limitation on one of these capabilities cannot be compensated for by promotion of another. For example, if the state were to restrict an individual’s ability to speak their mind but—at the same time— made it easier for the individual to leave, the state has not struck some sort of normative balance. Rather, any choice by an individual to leave (or stay) or speak (or not) has been conditioned by the fact that the options available were limited. This is not to say that the choice does not satisfy some threshold condition for it to be sufficiently free, but this is less than what political freedom, understood as an ideal, might demand. The most salient element of this trio for this discussion is the possibility of exit. In a world of territorially defined sovereign states, the meaningfulness of one’s ability to exit does not depend solely on a state’s willingness to let its citizens leave. It is also dependent on the willingness of other states to let migrants enter their territory with a status that protects them from domination. As noted, however, the policies that regulate the flow of migrants do not allow for unfettered movement across borders, nor do they often provide new immigrants with a legal status that ensures against domination (Carens 2013). Thus, international borders subject potential migrants to the arbitrary will of others by limiting opportunities for exit. Further, limitations on the ability to exit often trap individuals, preventing them from escaping violence and oppression in the worst cases and limiting their ability to pursue a better life in the best. Regardless, international borders subject individuals to the arbitrary will of others, and those whose choices have been limited by border control policies had no say over those limitations. In the end, a prima facie case has been made that international borders contribute to systems of domination.

3.4 A conflict remains To this point, I have focused on the impact that international borders have on the life prospects of individuals seeking to migrate. Many may find this to be sufficient. In fact, stopping here would be methodologically analogous to the work of many who argue for (more) open borders. From here, they reach—what they think is—an obvious conclusion; namely, since international borders contribute to systems of domination, they are illegitimate and need to be opened. There is, however, a flaw in this argumentative approach. To explain this flaw, it is necessary to provide a brief synopsis of the larger debate. Those involved, like Joseph Carens (2013) and David Miller (2010), have tended to fall into either of two camps. On one side are those who defend some amount of state discretion over borders, often grounding their arguments in principles of self-determination or freedom of association (Miller 2010; Wellman 2008). On the other, are those who argue that commitments to certain values demand that borders be opened, or at the very least, that their current use is unjustified (Carens 2013; Abizadeh 2008). These views are grounded in an approach that begins with a provisional ceteris paribus argument about the relevance of some value or principle, then

84  Joshua J. Kassner concludes that the provisional argument shifts the burden of persuasion to those who might object. In short, the ceteris paribus provisional argument is taken to justify a presumption in favour of one side or the other’s preferred position. To understand the flaw, one must understand the nature of a presumption. Presumptions govern our deliberations by privileging one position over another. Consequently, since a presumption prejudices our deliberations, it must be justified. For example, consider one of the most recognisable presumptions in the US criminal justice system, the presumption of innocence. This presumption is justified because, all-things-considered, it is thought to be better to err on the side of not convicting an innocent person than on the side of ensuring that all of the guilty are convicted. Regardless of whether you agree with this justification, it is not based on a provisional ceteris paribus argument, rather it is based on an assessment of the competing values at stake. Both sides to the current debate over borders and border control offer ceteris paribus arguments to justify presumptions. As noted, such arguments can justify considering a value to be relevant to a moral inquiry, but they fail, without more, to justify a presumption. When there are competing values at stake, all other things are not equal; consequently, justifying a presumption must take those other competing values into account. In the present instance, this would require a rigorous assessment of the competing moral considerations relevant to the relationship between international borders and nondomination, and then are we justified in concluding that our deliberations about borders and their use by states should be governed by a presumption. To illustrate the significance of this methodological point, let’s consider a non-philosophical example. Assume that you have just adopted a dog and you are trying to determine how best to train the dog to ensure that they are a generally obedient and pleasant companion for you. Let’s also simplify the training alternatives. With apologies to all dog trainers who may find my characterisation infelicitous, you can either pursue training grounded in an understanding of the social nature of dogs or training grounded in the need to subdue the dog’s prey drive. The former leads to what is colloquially known as positive reinforcement and the latter to negative reinforcement. Each approach can be defended through a provisional ceteris paribus argument as relevant for you to consider. If we take such provisional arguments to be sufficient to justify a presumption, then if you start with the provisional assessment of training grounded in the social nature of dogs, you will conclude that training grounded in positive reinforcement is the winner. Alternatively, if you start with the provisional assessment of training grounded in the need to subdue the dog’s prey drive, then you will conclude that training grounded in negative reinforcement is the winner. Thus, the former would result in a presumption to employ positive reinforcement, and the latter, negative. As such, under this methodology, there is equal reason to believe that these two mutually exclusive training methods should both be presumed to be correct.

International borders, immigration, and nondomination  85 How you ought to train your dog should not depend on which approach, both relevant to your deliberations, you happen to consider first. We should be sceptical of any argumentative structure that can lead to P and not-P. And on a more practical note, if you think this doesn’t matter, just wait until a loved one needs stitches because of a dog bite or until your dog—covered in mud—jumps on a guest in your home. (I am speaking from experience on both accounts.) Whether you are discussing the legitimacy of borders or considering training for your dog, provisional ceteris paribus arguments can establish the relevance of a consideration for your deliberations; but, without more, they fail to establish presumptions. Thus, concluding that the right to be free from domination implies a world of open borders would—at least at this point—suffer from this methodological mistake. A mistake that I believe Carens and Miller (among others) make. In short, a ceteris paribus argument that establishes a prima facie case of illegitimacy establishes which values are relevant to our understanding of legitimacy, but it does not justify a presumption of illegitimacy, and it certainly does not justify an all-things-considered judgement about the illegitimacy of borders or border control. Though I am unable to provide an all-things-considered judgement about the legitimacy of international borders, I can offer a more holistic assessment of the implications a commitment to the right of individuals to be free from domination has for our understanding of the moral nature of international borders than what is often found in the current debate. To begin, the fact that borders play a significant role in protecting the right of individuals to be free from domination by providing the necessary political space within which individuals can effectively exercise their right to political self-determination is often overlooked by those who defend open borders. As such, merely including it in our initial assessment of the legitimacy of international borders moves the argument beyond the methodological flaw noted above. With this in mind, and though I can’t provide a complete explanation of the conceptual and normative relationships that exist between the right to be free from domination and the right to political self-determination (see Simmons 2001; Wellman 2008), one is not protected from the arbitrary will of others if they are unable to participate in the political decision-making processes that determine what policies will govern their lives (Pettit 1997; Skinner 2010). And, who gets to be a member of one’s political community is a matter of political self-determination (see Wellman 2008). Thus, open borders with, as many argue for, eventual entitlements to full membership (Carens 2013), contribute to the domination of the members of a political community if that policy was not chosen by the members of the political community in question. This isn’t an uncontroversial position, but I believe it is reasonable to think that individuals should have an extensive choice over who they share their political life with, provided that the use of their borders is not unreasonable. On that point, I would contend that discrimination against people(s) based simply on race, gender, ethnicity, religion, or any other number of morally

86  Joshua J. Kassner arbitrary characteristics, or the violation of human rights are unreasonable bases for exclusion, and thus illegitimate. I cannot defend this here, but I hope that others find this to fit with their common-sense moral intuitions. Perhaps the most significant limitation on a political community’s collective right to political self-determination is derived from the right of an individual to be free from domination. The right to political self-determination is valuable to the extent that it serves the overarching commitment to freedom as nondomination; consequently, since borders and the normative powers they imply contribute to the domination of millions around the globe, even if we are not necessarily justified in demanding a borderless world, the status quo must change. One cannot rely on the right to political self-determination to justify a policy, practice or institution that contributes to the domination of others. One might think that this implies, based on an arguably more robust methodology, a conclusion consistent with that of Carens though grounded in the republican commitment to freedom as nondomination rather than freedom of movement, that respecting the right we each have to be free from domination requires that we open borders. This conclusion would, however, fail to recognise that the same logic that limits our collective right to political self-determination also limits the extent to which we can dissolve borders while continuing to respect each individual’s right to be free from domination. Simply opening borders will undermine our collective right to political self-determination and thus undermine our right to be free from domination. Thus, we seem to face a dilemma generated by our commitment to freedom as nondomination itself. Namely, if political communities continue to use their international borders, in the name of political self-determination, to exclude individuals from immigrating, then we are contributing to the domination of distant others. If, on the other hand, we abolish the control political communities have over their territorial borders and create a world of universal membership and open borders, then we would be contributing to the domination of individuals by interfering with their right to political self-determination. How this conflict ought to be resolved is a complicated matter, but the solution depends on recognising that freedom as nondomination contains its own limitation—one’s freedom cannot be the source of domination of another.

3.5 Some suggestions for making international political boundaries legitimate This apparent conflict may seem intractable. It is important to note, however, that the illegitimacy of borders is not inevitable, nor is the only way to render them (at least more) legitimate to erase their normative significance. The link between our present international borders and their contribution to systems of domination is a contingent fact about our world, linked to the choices we make. Their enforcement and the underlying social, economic, and political conditions that such enforcement enables are not parts of the

International borders, immigration, and nondomination  87 natural fabric of the world. We can use borders in different ways and engage in actions that lessen the extent to which borders relegate many to live under conditions of domination. Thus, making international borders legitimate requires that we lessen the extent to which borders contribute to the domination of individuals. This can be accomplished in either of two ways. Borders themselves could be weakened, meaning that individuals would face fewer obstacles to migration as they seek to improve their lives. Alternatively, rather than weaken the borders themselves, we could pursue policies that alter the social, political, and economic conditions that individuals are seeking to escape, thus making the impact that borders have on the lives of distant others less significant. Either way, legitimacy demands that we do something. My thoughts on which path ought to be chosen are informed by two considerations. First, as noted, not every border is the same. How some borders contribute to, or protect individuals from, systems of domination often differ significantly from others. Second, as discussed, there is a tension that needs to be navigated. Namely, requiring that a political community weaken its borders raises the possibility of a conflict between that community’s right to political self-determination and the same community’s moral obligation to refrain from contributing to the domination of distant others. Though I am sympathetic to the idea of a world of more open borders, if not a truly cosmopolitan one of free movement and universal membership, there are good reasons to prioritise a commitment to eradicating the systems of domination that distant others live under. If we take the first consideration into account, that borders impact systems of domination in different ways, it may be more efficient to address the underlying causes of such domination. This is not to say that domination would be eliminated, it is still the case that borders limit the ability of individuals to pursue a life of their own choosing, and thus involve some degree of domination, but it would be reduced. One may find the fact that domination is only limited but not eliminated to be a fatal flaw; however, this needs to be understood in light of the additional consideration that to weaken borders in a world where, at least internally, states are legitimate—a minimally just world—involves the domination of the members of domestic political communities because it interferes with the right of the members of a political community to be politically self-determining. As such, there is no alternative, short of a voluntarily chosen world government and universal global citizenship, that avoids domination entirely. My preference is therefore contingently justified by the belief that it is the best way to minimise domination in our non-ideal world. Additionally, one might object that each state’s borders, and the specific way in which they enforce them, contribute to domination in distinct ways. Consequently, we ought to address the specific ways in which each state’s borders contribute to domination, opening some and leaving others alone. I am sympathetic to this idea, but sceptical, first, because such a patchwork system of reform may prove ineffective. Second, since a major cause of domination is the injustice found in the political communities being fled,

88  Joshua J. Kassner improving the situation in those communities may be desirable for its own sake. Finally, the amount of domination caused by borders might be made worse by weakening the borders themselves. Those left behind may be placed in even greater peril. The improvement of justice—the reduction of domestically caused domination—on the other hand, can only add to the legitimacy of those individual communities and improve the lives of all living there. There seems to be good reason to believe that states ought, all-things-considered, to pursue policies that ensure that every political community is just and does not engage in practices that contribute to the domination of its members. To continue to fail to take this obligation seriously would leave only one path to legitimacy, a world in which each state’s Hofeldian power to control its borders is greatly reduced if not eliminated.

Conclusion: US immigration and border control policy and the Northern Triangle The foregoing discussion focused on exploring the legitimacy of international borders from the perspective of a commitment to freedom as nondomination. I believe that this is important in its own right. Nonetheless, as was noted at the outset, the foregoing discussion has significant implications for an issue of great practical consequence to contemporary law and politics, namely immigration and border control. As such, it seems only fitting to conclude this chapter, not with a restatement of the discussion, but with an assessment of the implications it has for our understanding of the legitimacy of contemporary immigration and border control policies. Our understanding of the legitimacy of borders is complicated by the fact that a political community’s right to political self-determination and the right of distant others to be free from domination can both be grounded in a commitment to freedom as nondomination. This does not leave us with an impasse, rather, as noted in the previous section, the legitimacy of a state’s immigration and border control policies are inexorably linked to the actions the state takes to protect distant others from systems of domination. Thus, determining whether a state’s exercise of its discretion over its borders through its immigration and border control policies is legitimate requires that we assess the state’s border control policies relative to its efforts to protect distant others from domination. To clarify, for a state’s use of its discretion over its borders to be legitimate, the policies the state pursues to protect distant others from domination must be (at least) proportionate to the discretion exercised by the state in its immigration and border control policies and inversely proportionate to the strictness of the specific policies pursued. Further, as nondomination is concerned with protecting individuals from being subject to the arbitrary will of others, the extent to which the state’s policies are constrained by the rule of law versus those that lend themselves to arbitrariness matters. Thus, the stricter the control and the more arbitrary a state’s discretion, the more effort the state in question must make to protect distant others from domination.

International borders, immigration, and nondomination  89 With this framework in hand, it may be useful to assess the legitimacy of the immigration and border control policies of a particular case study. As such, let us turn to US immigration and border control policies juxtaposed with its foreign policy approach to the Northern Triangle (El Salvador, Guatemala and Honduras). Since it is the legitimacy of the immigration and border control policies of the US that are at issue, I will begin with a brief discussion of those policies, but their legitimacy will ultimately depend on the relationship between those policies and the foreign policy the US pursues in its relationship with the Northern Triangle. As noted, to assess the legitimacy of a state’s immigration and border control policies we must understand the strictness of the state’s policies and the arbitrariness with which the state’s discretion over its borders is exercised. The strictness of a state’s border control policies is defined by the porosity of the borders as established by the policies in question. Borders that are, as a matter of official policy, more porous (like the Schengen Zone) are less strict and vis a versa. To be more explicit, the more restrictive a state’s admissions standards and the more difficult it is for someone to move across a state’s border, the stricter the state’s border control policies. Further, strictness is a property of both the rules that define the state’s policies and the extent to which the state dedicates resources to the enforcement of those rules. As to the arbitrariness with which a state exercises its discretion, it is important to distinguish this property of a state’s immigration and border control policies from the strictness of the policy because officials may have the power to make arbitrary choices about how policies are enforced even if the policies themselves are not strict de jure. In at least one sense, the very idea of a world divided up into territorially defined states, each one of which possesses the discretion to exclude others from crossing their borders, is arbitrary. Notwithstanding this, by arbitrary I believe we ought to be concerned with the extent to which the discretion of the relevant officials is bound by the rule of law and/or constrained by formal institutional checks. Turning to our assessment of the immigration and border control policies of the US, the first step is a general account of the relevant policies. As to the strictness of the US policies, the formal policies governing immigration and border control are highly restrictive (Kandel, 2021). This should not be surprising. Since 1952 immigration policy has been grounded in the Immigration and Nationality Act, which is explicitly committed to pursuing the ‘national interest’ of the US. That is not enough, however, to adequately understand how restrictive these policies are. For one thing, there is a preference for the families of those who are already citizens of the US (Kandel, 2018a). And, consistent with the commitment to using immigration to serve the national interest, employment-based immigration prioritises those who have special skills or are needed by US employers (Kandel 2018b). There are also a range of visas that individuals can apply for, but the process is long and burdensome, literally taking years, and that is if an aspiring migrant is lucky enough to have a visa made available to them at all (Kandel 2021, 4–6).

90  Joshua J. Kassner Finally, there are those seeking to migrate to the US as refugees or asylees. The burden they face is quite high. A refugee must be outside of [their] home country (a second country that is not the United States) and [are] unable or unwilling to return because of persecution, or a well-founded fear of persecution on account of five possible criteria: (1) race, (2) religion, (3) nationality, membership in a particular social group, or (5) political opinion. An asylee is a person who meets the definition of a refugee […] but who has been admitted in the United States or is present at a land border or port of entry to the United States. (Kandel 2021, 5) Most important to understanding the strictness of the US policy on asylees and refugees is the fact that it is the candidate refugee/asylee who bears the burden of persuading officials that they deserve to be admitted. This is a farm more burdensome task than it might appear. As such, in light of these facts about US border control policy, it seems reasonable to conclude that the current policy is highly restrictive. It is equally clear that the US is committed to the vigorous enforcement of these rules. I take this to be a relatively uncontroversial claim, but some additional specificity may be warranted. The main elements of the of US enforcement of its immigration and border control policy consist of security at ports of entry, security between ports of entry, detention, and removal (Kandel 2021, 10–15). There is a tremendous effort put into preventing unauthorised individuals from entering the US, capturing them if they have entered, detaining them, and then removing them. As noted by the Congressional Research Service, The United States has substantially increased appropriations for personnel, fencing, infrastructure, and surveillance technology for border enforcement over the last three decades, particularly after 2001. Since receiving authorization from Congress in 1996, DHS has built 653 miles of several types of barriers along the U.S.-Mexico border. CBP also employs land-based, aerial, and marine surveillance technologies. (Kandel 2021, 11–12) Thus, it should be clear that the US has not only adopted a highly restrictive immigration and border control policy, but it has matched that policy with significant resources and enforcement mechanisms. We must now assess the extent to which the US use of its discretion in carrying out policies is arbitrary. As noted, arbitrariness consists of decision-making that is not constrained by the rule of law and not subject to institutional checks on the decisions made. In the case of the US’s use of its discretion, arbitrariness permeates the decision-making process. The President of the United States (President) decides how many refugees will be admitted in any given year (Bruno 2017). The only check on the President’s

International borders, immigration, and nondomination  91 prerogative is a formal requirement that s/he ‘consult’ with Congress (Bruno 2017). In hearings on a person’s petition for a cancellation of removal, ‘an immigration judge grants cancellation of removal at [their] discretion, [and] no fixed standard exists for who merits relief’ (Kandel 2021, 6). Similarly, when it comes to visa applications, ‘[c]onsular officers’ decisions on whether or not to grant foreign nationals a visa are not subject to judicial appeals’ (Kandel 2021, 9). Finally, Customs and Border Patrol officers have significant discretion when it comes to their determination of who is and who is not admissible (Kandel 2021, 11). In the end, not only are the US immigration and border control policies very strict, they are implemented in a way that admits of a high degree of arbitrariness. For such immigration and border control policies to be legitimate, the US must engage in efforts that protect distant others from domination proportionate to the restrictive and arbitrary nature of those immigration and border control policies. What this requires depends on the extent to which those distant others are subject to the threat of domination. To clarify, to satisfy this demand, the US would need to do very little when it comes to most Western European nations, but quite a lot when it comes to authoritarian or failed states. For example, the threat of domination is much weaker in Germany than it is in Kazakhstan; consequently, satisfying the demand that the US pursue a foreign policy that seeks to protect distant others from domination that is proportionate to its immigration and border control policies will be less burdensome in the case of Germany than in the case of Kazakhstan. As to the Northern Triangle, there is little doubt regarding the extent to which the inhabitants of El Salvador, Guatemala, and Honduras are subject to the threat of domination. Whether it is from gang violence, corrupt politicians, police or judges, or many other forms of social and economic deprivation, their populations are subject to the arbitrary will of others (Ernst et al. 2020). What makes the Northern Triangle of particular relevance to our evaluation of US immigration and border control policies is that recently migration flows from Central America have drastically increased as have US efforts to halt them (Ernst et al. 2020, 5). To date, the primary means of reducing the flows of migrants from the Northern Triangle have focused on punitive measures—‘prevention through deterrence’ (Kandel 2021, 11). It would be fair to say, even without further inquiry, that US efforts to protect citizens of the Northern Triangle countries from domination fall woefully short of what is required for the current immigration and border control policies in the US to be legitimate—at least in relation to the Northern Triangle. There has, however, been a recent turn towards a more intentional use of diplomatic, economic, and other foreign policy tools to address the underlying causes of migration (see Ernst et al. 2020). At first glance this may seem like a development heading in the right direction, but the rationale for this change in US foreign policy leaves me sceptical. The underlying justification is that there is a (not unreasonable) belief that the most effective way to stem the flow of migrants is by addressing what is causing so many to want to leave in the first place (see Ernst et al. 2020).

92  Joshua J. Kassner Whether true or not, the justification is tied, not to the effectiveness of US efforts at protecting distant others from domination, but to the reduction in the number of migrants seeking to immigrate to the US. To understand the significance of this distinction, consider the following: What if it turns out that there are more effective ways of mitigating the flow of migrants from the Northern Triangle than protecting distant others from domination? If that were the case, then under the current commitment to the principle that US foreign policy ought to be directed towards mitigating the flow of migrants, the US ought to choose policies that mitigate the flow of migrants over policies that protect distant others from domination. In short, what needs to change is not just the policy itself, but the objective that informs US foreign policy. US foreign policy needs to be directed towards protecting the citizens of the Northern Triangle from domination. Anything less would leave the current immigration and border control policies as illegitimate. I hope that this brief discussion of US immigration and border control policy has helped to shed some light on the practical implications of the account of the legitimacy of international borders I have offered. At present, at least in relation to the Northern Triangle, I would argue that US immigration and border control policies are illegitimate. If nothing else, I hope to have provided those who disagree with me with a worthwhile foil. In a world that seems to be ever more interconnected and interdependent, so much of our shared social and political lives happen across, not within, the territorial boundaries that separate one state from another. We can only benefit from a rigorous discussion about the moral nature and limits of these political artefacts that have such a determinative impact on the lives and life prospects of us all.

Bibliography Abizadeh, Arash. 2008. ‘Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders’. Political Theory 36, no. 1: 37–65. Beitz, Charles. 1979. Political Theory and International Relations. Princeton, NJ: Princeton University Press. Berlin, Isaiah. 1969. Four Essays on Liberty. Oxford, UK: Oxford University Press. Bruno, Andorra. 2017. CRS Report RL31269: Refugee Admissions and Resettlement Policy. https://crsreports.congress.gov/product/details?prodcode=RL31269. Carens, Joseph. 2013. The Ethics of Immigration. Oxford, UK: Oxford University Press. Ernst, Jeff, Kelly Josh, Eric L. Olson, Kristen Sample and Ricardo Zuniga. 2020. US Foreign Aid to the Northern Triangle 2014–2019: Promoting Success by Learning from the Past. Wilson Center Latin American Program Reports on the Americas No. 42. www.wilsoncenter.org/publication/us-foreign-aid-northern-triangle-20142019-promoting-success-learning-past-no-42?msclkid=cb069401cfa811e ca4e16de0261d9734. Hirschman, Albert. 1970. Exit, Voice, and Loyalty. Cambridge, MA: Harvard University Press.

International borders, immigration, and nondomination  93 Hohfeld, Wesley Newcombe. 1920. Fundamental Legal Conceptions as Applied in Legal Reasoning. New Haven, CT: Yale University Press. Kandel, William A. 2018a. CSR Report R43145: US Family-Based Immigration Policy. https://crsreports.congress.gov/product/pdf/R/R43145. Kandel, William A. 2018b. CRS Report R42866: Permanent Legal Immigration to the United States: Policy Overview. https://crsreports.congress.gov/product/ pdf/R/R42866. Kandel, William A. 2021. CSR Report R45020: A Primer on U.S. Immigration Policy. https://crsreports.congress.gov/product/pdf/R/R45020/7. Kassner, Joshua J. 2012. Rwanda and the Moral Obligation of Humanitarian Intervention. Edinburgh: Edinburgh University Press. Kassner, Joshua J. 2019. ‘An Essay in Defense of a Republican Understanding of the Relationship between Law and Liberty’. In The value and purpose of law: essays in honor of M.N.S. Sellers, edited by Joshua J. Kassner and Colin Starger, 57–75. Stuttgart: Franz Steiner Verlag. Lichtenberg, Judith. 2014. Distant Strangers. Cambridge, UK: Cambridge University Press. Miller, David. 2010. ‘Why Immigration Controls Are Not Coercive: A Reply to Arash Abizadeh’. Political Theory 38, no. 1: 111–120. Peter, Fabienne. 2008. Democratic Legitimacy. Oxford, UK: Routledge. Pettit, Philip. 1997. Republicanism. Oxford, UK: Oxford University Press. Pogge, Thomas. 2002. World Poverty and Human Rights. Oxford, UK: Polity Press. Pogge, Thomas. 2005. ‘Real World Justice’. Journal of Ethics 9: 29–53. Sellers, Mortimer N. S. 1998. The Sacred Fire of Liberty: Republicanism, Liberalism and the Law. London: Palgrave Macmillan. Simmons, A. John. 2001. ‘On the Territorial Rights of States’. Philosophical Issues 11: 300–326. Skinner, Quentin. 2010. ‘On the Slogans of Republican Political Theory’. European Journal of Political Theory 9, no. 1: 95–102. Wellman, Christopher Heath. 2008. ‘Immigration and Freedom of Association’. Ethics 119: 109–141.

Part II

State legislation and the statuses of immigrants

4 Law-making to face the migration crisis* Developing legislative policy (analysing the Swedish case) Mauro Zamboni Introduction The recent crises in Africa and the Middle East, along with the resulting increase in migratory fluxes, have put many European welfare states under pressure. Initially, Sweden was one of the most generous European recipient countries for migrants, confirming its image worldwide as a safe harbour for those fleeing warfare and peril. The Scandinavian country has always promoted itself as a safe harbour (whether this is correct in reality is open for discussion). However, domestic and international politics soon compelled Swedish lawmakers to adopt a more restrictive approach to ‘preserve’ the Swedish welfare state (Brochmann and Anniken Hagelund 2012, 1–24; Blix 2017, 115; E. H. 2017). Unquestionably, the recent dramatic increase in migratory fluxes to the Scandinavian country has been perceived by the general population, representatives of major political parties, and some scholars as endangering the very foundation of the Swedish model (Johansson 2016, 5; Heidbrink 2018). Focusing on the Swedish legislative example, this chapter suggests the necessity of choosing the appropriate model of legislative policy when facing crisis periods in migration fluxes.1 By necessity, this chapter does not provide a solution to more fundamental strategic dilemmas, such as whether and how the Swedish welfare model can be maintained in the face of increased migration. Indeed, lawyers are most likely not even equipped with the necessary knowledge (e.g., in terms of economy, organisational studies, or sociology) to accomplish such a task. This chapter has instead a much humbler assignment of the character of ‘damage control’: it aims to suggest what lawyers, particularly legislative lawmakers, can do to minimise harm. In particular, it discusses the legislative channel (or legislative policy model) that is best for addressing the crisis. Using Sweden as an example, this chapter *  Faculty of Law, Stockholm University, Sweden. I would like to thank Louise Dane, Tetsu Sakurai, and Jori Munukka for their extremely valuable inputs. This study was conducted as a part of the Graduate School of Intercultural Studies, Kobe University, Japan, ‘Research on the Public Policies on Migration, Multiculturalization and Welfare for the Regeneration of Communities in European, Asian and Japanese Societies,’ Core-to-Core Program by the Japan Society for the Promotion of Science, to whose entire team goes my deepest gratitude. The online resources in this chapter were last accessed on 13 September 2021.

DOI: 10.4324/9781003102717-7

98  Mauro Zamboni suggests that the right model of legislative policy is one that shifts legislative law-making processes closer to the judicial system. Directing law-making away from the political sphere and public agencies would allow judicial bodies to develop a regulatory regime that could better protect individuals’ basic rights under the guarantees offered by the instruments and courts of the international and European legal communities. In order to do so, the first section will present an ideal typology of three possible models of legislative policy, namely, the administrative, judicial, and statutory legislative models. The second section will then sketch the model for which the Swedish lawmakers have opted, namely the administrative one, in building the legal regime of migration (also during the period of crisis). Finally, the third section will point out how, regardless of its content, the Swedish regulation presents serious problems in its chosen modality. Further, it will demonstrate how the choice for a judicial legislative policy would have been a better option, particularly considering the Swedish legislation’s impact on migration within European and international normative frameworks. Before presenting the analysis, it is worth pointing out why the Swedish legislative approach to migration is somehow symbolic of key issues of modern welfare states. In particular, the following two would be the most natural and interconnected questions: Why is the Swedish example relevant to the rest of the world? Apart from content, what is the importance of the legislation process in the context of migratory fluxes? Beginning with the first question, Sweden can be considered a representative system for evaluating the effects of migration upon a welfare state because this country has traditionally been set apart (with the other Nordic countries) as one of the ‘ideal-typical’ examples of Welfare state (EspingAndersen 1990, 12; Hilson 2008, chap. 1; Béland and Lecours 2008, 208). The recent migration crisis seems to have affected the Swedish model of welfare more than other states in the European region. On one hand, Sweden has traditionally promoted itself as a safe harbour for ‘people in need’ worldwide (from the Baltic populations escaping from the Soviet invasion to the population fleeing former Yugoslavia during the Balkan wars of the 1990s) (Spång 2008, 45; Skodo 2018; OECD 2013, 298). On the other hand, the recent dramatic increase in migratory fluxes to the Scandinavian country has been perceived as endangering the foundation of the Swedish model (Dahlstedt and Neergaard 2019, 278; Swedish Migration Agency 2018; Borevi 2011, 49–50). This perception is increased by the fact that, in Sweden more than in other countries (e.g., the USA), the model of the welfare state is based on the idea of offering equal opportunities in life to the ‘ethnos’ (i.e., the people sharing similar national identity or at least a common core value-system), rather than to the ‘demos’ (i.e., the people fulfilling the same legal requirements such as citizenship or refugee status) (Andersson 2009, 229–45; Borevi 2002, 9–59; Barker 2012, 8–9).2 Swedish society is facing a fundamental dilemma, then, a dilemma similar to that facing many countries in Europe and elsewhere. On the one hand, Sweden might be favourable to supporting an increase in the migration

Law-making to face the migration crisis  99 fluxes, and therefore favourable to changing the essence of the Swedish version of the welfare state (by changing its ‘ethnos’). On the other hand, the Scandinavian country might opt for a restrictive line by refusing migrants who come as a result of international crisis. In the latter case, this decision would also indicate a rejection of one of the basic pillars of Western welfare in general: offering harbour to people in need, whose right exists solely because they are human beings and regardless of ethnicity, religion, or the type of danger they escape (Trygged 2019, 15–30; Banting 2000, 13–33, Crepaz and Damron 2009, 437–63). Regardless of how this fundamental dilemma is ultimately resolved, one fact is certain: in Sweden, it will be accomplished by using traditional regulatory tools and, in particular, by statutory provisions. For historical and structural reasons, Sweden is the country, more than others, where the construction of the welfare model has been accomplished through new regulatory provisions since law-making has simply been considered as ‘the’ tool to shape the national community into a pre-established welfare dress (Larsson et al. 2012, 14). Therefore, it is unsurprising to find the investigation of the effects of migration on the Swedish model of welfare state implies tackling the issue of the pressure placed on the Swedish regulatory agencies by the dramatic increase in migratory fluxes. To face this challenge, Swedish lawmakers have produced a series of statutory provisions which, to some extent, has had the outcome of radically changing the traditional ‘benevolent’ attitudes of Swedish authorities towards immigration, in particularly when that immigration is triggered by non-economic factors (e.g., political persecution).

4.1 Three possible models of legislating To tackle the complex issue of responses to migratory flux, this study’s first task is to briefly sketch three possible (and highly ideal-typical) models of legislative policy that can be used to regulate migration in a specific national community. This ideal-typical typology is based less on the content of the legislative processes than on the division of labour among the three main actors traditionally participating in the regulatory process of a rule-of-law state: legislative, executive, and judicial actors (Redish 1995, 140–1; Linz and Stepan 1996, 14; Koopmans 2003, 247). In other words, the main criterion used for the modelling is not heavily grounded in the substantive qualities of legislative law-making; rather, the modelling criterion builds from its procedural aspects, although each procedural model of legislative policy brings with it certain relevant substantive consequences for the legislative measures it produces (as will be shown below).3 The first model of legislative policy can be defined as ‘statutory’. In this model, the actors in charge of the legislative law-making are the national or local representative assemblies, and the main task of regulation is left to the legislative bodies. For various reasons (history, political opportunity, constitutional provisions, etc.), certain areas have been placed under the full, in-depth control by the elected members of the national community or, in

100  Mauro Zamboni the case of a federal system, of the local community (Huber and Shipan 2002, 79–81; Dowding 2011, 41–2; Dworkin 1986, 217–18). For example, due to legal restrictions in Sweden both at the constitutional level and in terms of the general principles of law, the regulation of Swedish criminal and taxation matters is generally determined according to very detailed statutory provisions. This leaves the other actors (namely public agencies and courts) very little room to manoeuvre when it comes to the creation of regulatory regimes (Sveriges Riksdag 2016b, 27, 38; Sterzel 2017, 75–94; Fast et al. 2013, 357–9). When the statutory model of legislative policy is applied, it results in detailed statutory provisions encompassing all possible scenarios. The application of this model is usually accompanied by provisions or principles that strictly limit the leeway for non-legislative actors. One example involves statutory provisions stipulating that whatever is not explicitly regulated in the statutory provisions is allowed. According to the second ideal-typical model of legislative policy, an archetype that can be defined as ‘administrative’, the legislative actors shift the production of regulatory regimes toward the executive actors of a legal system and, in particular, toward national and local public agencies. Either due to internal factors (e.g., a high level of conflict within the representative assemblies) or for external reasons (e.g., the necessity of a flexible law-making regime due to the very nature of the area to be regulated), the legislative bodies may delegate a consistent law-making power to the administrative apparatus (Majone 1994, 77–101; Iancu 2012, chap. 2–3). Although the public agencies formally hold only the task to ‘implement’ statutory provisions (as in most democracies), they have, in reality, been assigned or have taken upon themselves the fundamental task of ‘operationalising’ the general provisions laid down by the national or local assemblies (Kerwin 1994, 345; Xanthaki 2014, 257–8; Krause and Woods 2014, 371–2). This ‘operationalisation’ by public agencies of general principles set out in legislation is usually activated by the use of directional frameworks in statutory provisions, indicating (often in vague terms) the general principles according to which the public agencies should operate, and the regulatory regime should choose a direction (Xanthaki 2014, 269–75; Huber and Shipan 2002, 3–8). Swedish child law is an example of this model of legislative policy: there the main legislative policy has been in the direction of moving the regulatory burden to specialised public agencies, where child psychologists often play a decisive role in trying to grasp and translate ‘what children want and think’ (Leviner 2011, 26–31). Finally, the third ideal-typical model for legislative policy can be defined as the ‘judicial’ model. Here, the major tasks of law-making are performed by judicial actors, using their reconstruction of a general and (at least from a legal perspective) consistent regulatory regime based on the scattered and fragmented statutory provisions offered by legislators (Barak 2002b, 1206; Steiner 2015, 14; Stone Sweet 2002, 69). As with the other models there can be several reasons in this case why representative assemblies adopt this model of legislative policy. The political actors’ motives can range from being historical (e.g., an unwillingness of the legislative body to produce a uniform

Law-making to face the migration crisis  101 code in certain areas of law or to address politically infected issues) to more institutional reasons (e.g., presence of a strong constitutional review, allowing courts to constantly undermine any attempt to legislate certain areas covered by constitutional provisions) (Ferejohn 2002, 55–7; Guarnieri and Pederzoli 2002, 71–2; Stone 1992, 119–39). Regardless of the underlying motives, the result is that a choice is made to regulate only specific and limited areas of a certain field, making extensive use of a somewhat ‘patchy’ legislation, while legislators extend to the judicial bodies (and, in particular, the highest courts) the possibility of offering a consistent regulatory structure for the entire field through the force of precedents and an active dispute resolution approach (e.g., through extended use of the ex-analogia juris method) (Pizzorusso 1988, 57; MacCormick 2003, chap. VII; Hartley 2003, 133).4 Taking again an example from Sweden, one could name the issue of ‘unjust enrichment’, of which the national assembly has decided to legislate only specific and scattered aspects, while the regulation of the issue at large has been left to the courts (Munukka 2009, 26–34). Before applying this three-model typology to the Swedish regulatory regime of migration, some brief clarifications are necessary. First, this is an ideal-typical typology; therefore, it does not mirror the reality of the phenomenon under investigation (indeed, the models tend to overlap and cross each other). However, modelling can be a valuable analytical tool that is effective for revealing certain fundamental streams or tendencies within the real-world legislative processes as they take place (Weber 1949, 99–100; Jensen 2012, 69–73; Bruun 2016, 208). The second clarification concerns the nature of legislators’ choices in terms of the model. As various socio-legal studies also point out, the choice by the political actors of a regulatory model can be of an ‘intended’ or ‘unintended’ character (Nheu and McDonald 2010, 100; Luhmann 2004, 166). The model of legislative policy is an intended choice when it focuses on the modalities that legislators seek in the legislation (‘how the legislating is thought to work’). The unintended choice of a certain legislative model, however, aims to highlight the actual modalities through which the legislation operates (‘how the legislating actually operates’). This chapter is designed as a contribution to legislative policy rather than to legal sociology (or socio-legal studies) and therefore it focuses on the intended choice of model (Raz 2009, 274–5). Finally, this typology of legislative policy models can clearly have a different nature when considered from a time perspective. By focusing on the various models of legislative policy that have been chosen over time to regulate a certain area, for example, this typology can be used to observe reality from a diachronic perspective. For example, the model of judicial legislative policy sometimes changes to a statutory model, particularly when national assemblies codify the current judicial praxis in a certain area. This threemodel typology of legislative policy can also have a more synchronic nature, in that it shows how the intended model should operate in a specific area during a particular period of time.5 Thus, this study leaves aside the

102  Mauro Zamboni diachronic perspective, which tends to be particularly fruitful in comparative studies, on the basis that it may be too complex for relatively focused chapters. Instead, this study takes a synchronic approach, in particular by focusing exclusively on the intended policy choices Swedish legislators have made in contemporary regulation of migration (Martinico 2015, 197–206).

4.2 Legislation policy on migration crisis: the Swedish experience Although the history of the Swedish migration law in the last 100 years will not be further investigated here in detail due to the option for a more diachronic approach, one can easily notice that, when a migration crisis was at its doors, Sweden has been entranced into a dichotomous attitude, either closing the borders or opening them. For example, one could notice as a dominant trend a policy and legislation traditionally rather welcoming of foreign nationals (both for work and humanitarian reasons), particularly concerning Nordic and European immigrants.6 During the 1970s, however, due to the international economic recession, the Swedish legislation became generally more restrictive, with some relevant exceptions (Borevi 2002, 98–110; Wadensjö 2014, 302; Regeringen 1984, 15, 27–28). Finally, beginning in 2005, new legislative provisions were enacted that have marked a turning back toward a more generous migration policy (Stern 2008, 13; Sveriges Riksdag 2005; Regeringen 2008, 39–43).7 This kind of reaction by a national state is fairly self-evident, considering that borders can only be closed or opened. However, as for many Western European countries, the consideration in deciding to close the doors (e.g., to the European Jews during the Nazi regime) or leave them open (e.g., to the Baltic refugees after World War II) have been mostly determined by purely political, external (i.e., non-national) considerations. In other words, the Swedish legislation on migration from the end of World War II up through today, while regularly swinging from restrictive to openness and back, nevertheless tends to have a point of consistency: questions of foreign policy play a dominant role in determining Sweden’s migration policy (Selm 2003, 143–60; Meyers 2004, 27; Dane 2019, 73–4). This statement of course does not mean that factors of internal policy also do not play a role. In fact, a certain anti-Semitic attitude embedded in the Swedish culture (as it was in many other countries at that time) also contributed to the closure of the borders to the European Jews before World War II (Levine 1998, 104–9). However, as John Torpey also pointed out, during the 1920s, migration law was an area where the circumstances and contexts of the legislative process are exogenous in relation to national lawmakers; that is, they are often produced by factors external to the control of the nation states (Torpey 2018, 3, 153–62). When determining migration law, the Swedish government and parliament tends to make the decision about a legislation’s content mainly based on potential reactions of other states (e.g., other members of the European Union). Additionally, consideration is given to international politics, such as a desire to stress Sweden’s role or self-image

Law-making to face the migration crisis  103 as a ‘welcoming country’ in times of humanitarian crisis (Hill 2013, 51–4; Hassel and Wagner 2016, 75–6; Olofsson 2016, 60). Therefore, one can easily argue that, when it comes to the content of the Swedish migration legislative policy, relatively few considerations are usually given, at least directly, to institutional and structural factors typical of the Swedish national community, such as the internal political climate or reasons of an economic, social, or legal nature (though these are often added as supplementary reasons). An illuminating example illustrates this preponderance of foreign policy considerations upon internal policy. In the summer of 2014, the conservative prime minister (i.e., representative of the more traditionalist Sweden) faced the burgeoning migration crisis. In the middle of the electoral campaign, he encouraged his fellow citizens to open ‘their hearts’ and welcome the refugees from Syria in order to strengthen further the image of a ‘welcoming Sweden’ that is open in times of need (Reinfeldt 2014; Crouch 2014). However, when the crisis hit heavily during the coming months, the Social-Democratic government (with the help of the Green Party) took several fundamental law-making measures to essentially close the borders (Sveriges Riksdag 2015b; Justitiedepartementet 2018; Öberg and Sager 2017, 6–8). This move was conducted not to appeal to the growing electorate of the farright party (Sweden Democrats) but rather to send a clear message to the ‘outside’, namely to the EU partners (and, in particular, Denmark) and to the dramatically increasing number of potential immigrants (Sveriges Riksdag 2016a; Öberg and Sager 2017, 8; Dahlstedt and Norgaard 2019, 1–15). These pendulum-like shifts in the external circumstances have naturally brought with them corresponding changes in the content of migration regulation, that is, what to legislate. However, regardless of such radical changes in the political orientation of the government and parliament as well as in their policies’ contents on migration, when it comes to the legislation process, various legislators have always kept the administrative model as the preferred channel of regulation. This choice means that, when regulating migration, legislators produce a general and by-principles regulation via statutory provisions and, consequently, they move an extended law-making power to the public agencies in order to operationalise such general directions (Stern 2012, 282; Adler and Stendahl 2012, 277; Borevi 2012, 47). In short, while the content of Swedish migration policies is largely determined from the outside, when it comes to the modalities for the implementation of such policies (i.e., legislative policy), one can observe an overall use of the administrative legislative model. In contemporary Sweden, the legislative framework for the regulation of migration is extremely complex, as it is for many other countries, with both general statutes and specific measures, which often interact in a manner that includes some friction. In general, one can point to the existence of one major statute regulating the field, the Foreign Nationals Act from 2005 (Sveriges Riksdag 2005; Regeringen 2005, 82–4). This statute contains provisions regarding the conditions under which foreign nationals may remain and reside in Sweden, including conditions for asylum, visas, and residence permits.

104  Mauro Zamboni Looking at the legislative policy adopted as part of the Foreign Nationals Act, Swedish lawmakers clearly appear to have opted for an administrative model. The Act is shaped as a framework-legislation, where it is up to other law-making actors, namely the public agencies, to ‘operationalise’ it according to the general (and often vague) principles set by the legislative assembly. As several legal scholars and the Swedish Council of Legislation point out, the Act leaves much room for discretionary evaluations by public agency, to the extent that it is very difficult even to determine the ‘intentions of the legislators’. Further, the Act leaves open a wide-open space for the ‘creative’ operationalisation by public officials (Lagrådet 2002, 5). In particular, the Foreign Nationals Act makes use of principles such as ‘particularly distressing circumstances’, ‘special reasons’, or ‘evaluation of suitability’ to be used by public officials in order to determine whether an individual can or cannot remain in Sweden. The Act stands out because it allows for such determination without at the same time offering the agencies specific statutory (or quasi-statutory) criteria to be used in identification as well as in operating within this area of ‘evaluation of reasonableness’ (Sveriges Riksdag 2005, chap. 5, section 18; Lagrådet 2002, 10; Dane 2019, 197). For instance, one of the central parts of migration law, namely the status of refugees, is not clearly defined or detailed in the legislation (Sveriges Riksdag 2005, chap. 4, sections 1 and 2; Statens Offentliga Utredningar 2006b, 78). Therefore, it is left to the administrative agencies and their law-creating practices to determine whether a person possesses this legal status. The preliminary works claim to offer some quasi-statutory indications as to the conditions one has to fulfil in order to be qualify as a refugee (Regeringen 2005, 171–8). However, these indications actually mirror the delegation to the administrative agencies of law-making power that one finds in the statutory provisions; for example, they refer to the necessity of public officials of making use of criteria such as ‘obviousness’ and ‘reasonableness’, i.e., by pushing the source of the regulation deeper into the administrative practices (Regeringen 2010, 16–9; Regeringen 2014, 17–39). One could raise two major critiques of this picture of Swedish migration law by looking at the administrative legislative model. The first objection could be that the statutory provisions have left a wide law-making space not only for public agencies, but also for judicial bodies and their jurisprudence. This critique can be particularly supported by the reform of 2006 (Nilsson 2007, 15–7; Regeringen 2005, 105–7; Lagrådet 2002, 11–2). This reform was sparked in part by the desire to promote ‘legal certainty’ outside of statutory provisions. Thus, the reform presented an indirect critique to the prior law-making by the public agencies (in particular by the now defunct Foreign Nationals Board) (Hedlund et al. 2016, 45–63; Eastmond and Ascher 2011, 1185–200; Stern 2008, 28). As a result, the reform explicitly determines that migration cases, namely those in which a person’s application is rejected by the Swedish Migration Agency, should come under the jurisdiction of ordinary administrative courts, operating both in first (Administrative Court) and second instances (the Stockholm’s Administrative

Law-making to face the migration crisis  105 Court of Appeal) as special migration courts (Migration Court and Migration Court of Appeal, respectively) (Sveriges Riksdag 2005, chap. 16, section 1). However, this moving of disputes about migrations to an ordinary court, in reality, did not change the heavy weight of the public agencies in migration law-making, mainly because of institutional and structural reasons. Regarding institutional reasons, judicial bodies have generally shown a subservient attitude toward Migration Agency decisions (Johannesson 2017, 115; Stern 2008, 101, 117; Hirschfeldt 2009, 221). This deferential approach by the judges can be partially explained by the extreme difficulty of the cases, difficulty that often consists of non-legal evaluations of extremely complex situations (e.g., family relations or consideration of foreign politics, such as the ‘danger level’ of a certain situation abroad). For this reason, judges sitting in ordinary administrative courts tend to rely heavily on the evaluations provided by the public agencies, which are supported by long established internal practices and which express perspectives of actors specifically operating in migration issues (Johannesson 2017, 113–5; Jansson-Keshavarz and Lundberg 2019, 1014– 6).8 Moreover, one should not forget that in Sweden, for historical and constitutional reasons, judicial actors tend to consider themselves to be ‘civil servants’, and they operate accordingly, i.e., as part of the administration of the state rather than a third independent controlling branch (Zamboni 2019, 668–90). As to the structural reasons for downplaying this attempt to shift the regulation of Swedish migration law towards judicial bodies, there are several barriers that make it difficult for migration disputes to actually reach the ordinary administrative courts. Although it is true that the decision of the Swedish Migration Agency can be appealed to the administrative judges sitting in the Migration Court, this ‘right’ appears to be more of a ‘permission’. This is true in particular at the higher court, since it encounters several limitations that are uncommon in other types of cases. For example, the decision of the Migration Court can be appealed to the Migration Court of Appeal, but for this higher court to take up the case, a leave-to-appeal must first be granted. This leave-to-appeal can only be granted if the case is of general importance for the Swedish judicial system or if the first-instance court made serious procedural (but not material) mistakes (Sveriges Riksdag 2005, chap. 16, sections 11 and 12; Regeringen 2005, 506). Moreover, if despite these narrow borders, the case is able to proceed to the Migration Court of Appeal, the latter is considered the supreme instance, and its decisions cannot be appealed (Sveriges Riksdag 2005, chap. 16, section 9, third paragraph; Regeringen 2005, 109). In other words, the judges sitting in the administrative Court of Appeals are considered the highest step for migration cases, and therefore, the asylum seeker cannot see his or her case tested in the Supreme Administrative Court. This limitation is of particular importance because it hinders the migration cases from reaching the level of the judiciary, where the judges traditionally operate more in accordance with (and by structuring) general principles of law rather than by rules produced by the administrative bodies and their practice (Guarnieri and Pederzoli 2002, 82; Toijer 2017, 18; Stone Sweet 2000, 123–4).

106  Mauro Zamboni The second critique potentially raised against this idea of an administrative legislative policy over migration in Sweden concerns the structure of the Foreign Nationals Act. It is claimed that the rules of this act are mandatory, and thus the administrative bodies’ discretion is limited, with almost no discretionary rules (Statens Offentliga Utredningar 2006a, 41; Stern 2012, 284). However, the mandatory rules tend to set mostly general principles that require operationalisation by the public agencies when it comes to refugees. As it is for many systems around the world, the legal status assigned to refugees by the Act tends to be placed outside the so-called ‘regulated immigration’ (as is, for instance, the one for employment) (Regeringen 2005, 160; Johannesson 2017, 81–2; Joormann 2019, 173–88). As the refugees are then considered an ‘exception’ in the regulatory system set by the legislative actors, it seems quite natural that the latter tend to delegate the law-making power to the public agencies to construct in reality the regulatory system of when and how such an exception can be operationalised (Nilsson 2007, 15–7; Stern 2012, 298–9). For example, the general rule states that a permit should be applied by (and granted to) the foreign national before coming into Sweden. In order to deal with extraordinary situations, and in particular the refugees’ situations, several exceptions are formulated for practical and humanitarian reasons (Sveriges Riksdag 2005, chap. 2, section 3 and chap. 4, sections 1–2; European Parliament 2009, art. 4.1; Regeringen, 2005, 167–9). However, all these rules, affecting refugees most often, are exceptional in their nature, that is, they must foresee situations that being out of the ordinary, are difficult to predict and even more challenging to regulate in detail. For this reason, they tend to be formulated in vague terms; for example, they point to vague feelings of ‘well-founded fear of being subjected to serious abuse’ due to ‘deep animosities in the home country’, and this leaves the actual production of applicable rules to the law-making practice of the administrative agencies (Sveriges Riksdag 2005, chap. 4, section 2a, part 1; Lagrådet 2002, 5). Even the reference to the preliminary works does not help to clarify the content of such vague statutory regulations. For instance, these works offer some concrete examples of what may be the ‘particularly distressing circumstances’ that allow the asylum seeker to be granted a residence permit (despite not fulfilling the ordinary conditions). Nevertheless, any leading criterion as to how such ‘particularly distressing circumstances’ should be interpreted is devolved to the public agencies (Sveriges Riksdag 2005, chap. 5, section 6; Regeringen 2005, 189–93; Brost 2012, 57–60).

4.3 The judicial model as preferable legislative policy in migration crises If one looks at the reaction to the recent Syrian migratory crisis, one can easily recognise how, at least from a legal perspective (and in particular a legislative one), the traditional Swedish administrative legislative model has shown signs of essential structural weaknesses. With the latter, one identifies

Law-making to face the migration crisis  107 some aspects of the structure of such a model and its reliance upon law-making by the public agencies. This can present fundamental problems in dealing with ‘non-ordinary’ migration, i.e., migratory fluxes of unexpected magnitude and/or an increase of non-work related and non-family related migration (Doomernik and Jandl 2008, 20–1). 4.3.1 Structural flaws of the administrative model in the migration crisis In particular, the Syrian refugee crisis has brought to the surface three major structural flaws (at least from a legislative perspective) in the Swedish administrative policy adopted for regulating migration. First, the administrative legislative model tends to invite violations of the fundamental rights recognised by individuals among both the international and national legal communities. Both during and after the most acute moments of the refugee crisis, Sweden received several reprimands in different forms from various European and international authorities regarding how its public agencies (including the police) were handling the respect of basic human rights (e.g., the right to a family life) (European Commission against Racism and Intolerance 2018, 23; Council of Europe 2019, 6–8; UNHCR 2018, 28–30). These critiques by such authorities definitely do not label Swedish authorities as ‘structurally mean’ or ‘structurally racist’. However, these negative assessments in judicial form point out a structural flaw in the administration of the Scandinavian country. One specific Swedish constitutional principle stresses the superiority of the Parliament above all other powers, namely it underscores the prevalence of the representative assemblies over both the judicial and the administration (Sveriges Riksdag 2016, chap. 1, art. 1; Pollitt and Bouckaert 2011, 63; Nergelius 1996, 133). Even when operating as law-making actors, Swedish public agencies have traditionally felt strongly bound to the legislative provisions laid down by the political actors, namely the statutes, due to this specific trait of the Swedish constitutional culture (Sveriges Riksdag 2016, chap. 12, art. 1; Nergelius 2011, 15; Reichel 2006, 309–10). Over the decades, this situation has produced two almost paradoxical effects in the way Swedish public agencies operate. First, this constitutional principle has created a legal culture in the administration that worships the law in statutory form, to the extent that it is considered as the essential law, thus dismissing any potential contribution to legal reasoning coming from constitutional principles or principles of international public law (Nergelius 2000, 16). Such weakness is particularly relevant in this area, since both of these non-statute sources are fundamental in regulating the migratory phenomenon with respect to human rights as recognised by national and international legal communities. The second effect of this ‘devotion’ by the public agencies for statutory regulations is a decreasing legitimation of these statutes as an appropriate tool for solving the migration crisis. The continuous critiques of migration-regulating statutes by most legal actors, from law

108  Mauro Zamboni professors to the European and international authorities, combined with the relentless implementation of those statutes by the public agencies, despite the sometimes absurd results, tends to increase the distance among the addressees between the validity (i.e., formal binding character) of statutory provisions and their ‘being in force’ (i.e., actual binding character). This is despite the attempts by politicians to place blame on the administrative agencies and their ‘wrong interpretation’ (Jansson-Keshavarz and Lundberg 2019, 1019; Hedlund et al. 2016, 62; Johannesson 2017, 186). A classic example in this sense is the increasing number of Swedish churches hiding refugees who are at risk of being expelled due to public agencies’ restrictive interpretations of the principles laid down in the statutes (Kleres 2018, 212; Hellqvist and Sandberg 2017, 170–1). Regarding the second structural flaw in the administrative legislative policy endorsed by Sweden to confront the migratory crisis, this weakness resides in the very opposite natures of both migration and administration in a nation-state. Migration is an international phenomenon (Harvey 2003, 6). This quality does not only have to do with the obvious fact that it consists of people moving from one country to another; it is inter-national because the migratory fluxes often move across several countries, stimulating a legal confrontation among different legal systems and cultures (Goodwin-Gill 2013, 656; Li 2017, chap. 2; Hansen 2014, 254). Thus, the transnational character of migration is particularly valid for Sweden since this country is part of the European Union and therefore a carrier of certain obligations to this supranational legal entity and its member states. Moreover, the Scandinavian country is located in Northern Europe and is therefore typically far removed from receiving a direct access from migratory streams, which usually must pass through several other countries to reach it. This transnational quality of the migratory phenomena in modern times contrasts quite directly with the nature of public agencies in modern nation states. When it comes to legal reasoning, public agencies tend to operate on a very ‘nation-based’ platform, at least in Sweden: they tend to proceed their law-making activities based mainly on the national legislation and on the procedural and interpretative canons superseding the activities of the national legal community (von Essen et al. 2007, chap. 5; Wenander 2016, 315; Marcusson 2013, 22–9). This contrast in nature—transnational for migration and national for its administration—produces evident effects in the law-making of Swedish public agencies. First, the latter tends to tackle legal problems connected with the migratory fluxes as long as and only to the extent that they affect the national reality, that is, at a moment when the operational manoeuvre is in reality limited to concerning the migrants already at the door of (if not already inside) Sweden. In this respect, for instance, it is quite significant how actual Swedish lawmakers, that is, public agencies, were caught totally unprepared by the Syrian refugee crisis, despite its insurgence approximately two months before the agencies started to adapt the regulatory system to the new situation (Boije et al. 2017, 63–80; Holmström 2016). Moreover, despite migration being a supranational problem, often the regulatory

Law-making to face the migration crisis  109 solutions offered by the administrative bodies tend to be ineffective because a non-cooperative attitude of the state-players simply freezes the efficacy of each country’s legal responses to the problem (Boswell 2003, 621–2; Wallace Goodman 2014, 231; Faure et al. 2015, 17–8). As to the third structural weakness in the administrative legislative policy endorsed by Sweden to confront the migratory crisis, one can easily observe the rigidity in the response of the regulatory agencies to situations that require extreme flexibility. This rigidity is not of course due to any ‘laziness’ or ‘tardiness’ of the officials working in the Swedish public agencies, but it is derived directly from the institutional inelasticity of the administrative legislative model. This inflexibility makes Sweden incapable in managing the fact that, often in merely matters of days, migratory fluxes can experience extreme variations in numbers (e.g., from 1000 to 50000 per month), in origins (e.g., from only Syrian refugees to refugees from the entire Middle-East), and in motivation (e.g., refugees escaping from wars to refugees escaping from extremely distressing economic conditions) (Statens Offentliga Utredningar 2017, 132, 154, 181, 436; Aizi and Mårtensson 2017, 28; Deverell 2010, 684). When one speaks of the institutional rigidity of the administrative legislative model, he or she typically intends to point out the fact that public agencies tend, by their nature, to be ‘conservative’, i.e., to be path-dependent with respect to established practices (March and Olsen 2006, 7; Suchman and Edelman 1996, 915; Weber 1962, 196–244). In other words, when it comes to the creation of regulatory regimes, Swedish public agencies (and in particular the grassroots ones) tend to adhere as much as possible to previous and established practices. This is true even when confronting phenomena which are totally new in nature and/or scale (Pierre 2010, 191–202; Bergström 2002, 23–5; Immergut and Anderson 2008, 358). This attitude against changes in the targeted situation is an ‘original sin’ that is institutionally embedded in the basic and somehow naive idea of what an administrative agency should be: the latter’s primary goal is to administrate or regulate according to solutions offered by the statutes. Moreover, it should not invent new solutions to solve new issues, as such a task is the mandate of the elected representatives sitting in the national and local assemblies (Bach et al. 2012, 184; Karlsson 2014, 15–8; Rodriguez 2009, 340–1). As a result, the Swedish administrative agencies have been quite inefficient in tackling the new migration crisis since they tended to use law-making solutions created to face an old type of migration and incapable of embracing new phenomena. For example, the Swedish public agencies tend to regulate the increase in migration fluxes, which is often the product of ‘low-intensity’ wars, such as those in Chechnya or Iraq, through a law-making interpretation of vague concepts such as ‘war situation’, which were set in the legislative provisions with the idea of a situation of open conflicts (as in the Balkans during the 1990s) (Klamberg 2012, 289–91; Regeringen 2004). In summary, the administrative legislative policy adopted by Sweden to face the migration crisis seems to have failed due to the institutional lack of

110  Mauro Zamboni legal innovation: the public agencies are incapable of creating new legal categories and new legal solutions to face new problems. This faculty is particularly essential to the law-making actors when facing problems, like migration, that are likely to change dramatically in quantity and quality from one day to the other due to their being ‘exogenous’ in nature, i.e., due to their originating outside the sphere of control of the Swedish state. 4.3.2 Moving towards a judicial legislative model Given the situation of a malfunction of the administrative legislative model, one should start to consider that, due to the representative democratic nature of the Swedish state, the legislators are still the main actors when it comes to deciding which legislative model to adopt or, in other words, deciding which actor should be carrier of the main burden when it comes to law-making. In particular, the national assemblies of the Scandinavian state are presented with two directions of legislative policy for attempting to solve through the law the issues created by the migration crisis. First, they can endorse the statutory legislative policy: this option would mean the creation of a detailed legislation and would leave very limited room for ‘rule-creation’ manoeuvring to the other actors of the law-making arena, such as the public agencies and the judicial bodies. This solution is the one which has been advocated, mostly based on the idea of ensuring a higher level of ‘legal certainty’, by most Swedish political parties, by public agencies, and, last by not least, by most migration legal scholars (Statens Offentliga Utredningar 2004, 15; 2003, 127–9; Stern 2012, 299). However, this leaning towards a statute-dominated model of law-making appears to be pretty risky for the area of migration law. First, it appears that some structural asymmetries exist between the statutory legislative model and the regulation of migration, particularly in times of crisis. The latter is an area where the external circumstances that activate the law-making process (i.e., the triggering and boosting factors outside the control of the national community and institutions) can change in quantity and quality in a matter of a few weeks, as was also the case in the Syrian refugee crisis (Bertossi 2008, 192; Parkes 2017, 32–4; Coleman 2008, 453). To face this environment primarily with a statutory legislative model means to confront such complex and very fluid phenomena with a framework that is designed to be a slow-paced process based on ‘debating’ and ‘brooding’ (Habermas 1998a, 180; Saiegh 2014, 483–4). For example, the content and language of the statutes often reflect the attempts at compromise among the various (and sometimes incompatible) political interests, and these reflect the ponderousness of having the preliminary draft written by a parliamentary committee sent out for ‘opinions’ to various actors of the civil society and the legal world (Tuori 2002, 100–1; Xanthaki 2014, 87; Hedlund et al. 2016, 54–5). Moreover, the statutory legislative model tends to be structurally extremely sensitive to the swinging of the public opinion, having the national assemblies, that is, political actors, as primary actors (Laer 2017, 200–12; Brunner

Law-making to face the migration crisis  111 2012, 69–74). For example, in Sweden, the attitude of the public and consequently of the vast majority of the political parties towards the refugees from Syria shifted from having an open-door attitude to a very restrictive one in the space of a few weeks (Statsrådsberedningen 2015; Regeringen 2015, 1; Gessen 2018). This structural element of the public and political arenas may produce some friction, with one of the traditional features of the Swedish legal regulation per se of the migration: its tendency to be ‘rigid’ since it is constructed around the essential and binding contributions coming from international, super-national, and intra-national treaties. The volatility of the political arena regarding migration issues may also come in conflict with the time framework necessary to evaluate the regulation of migratory phenomena. For example, the positive and/or negative impacts of migration legislation on a certain national community can be counted at the earliest within the time span of two or three generations. As pointed out by a political scientist, [t]he time lag between initial reform costs and the later outcome of reform is generally a problem for actors who are subject to election cycles. This effect is intensified in the case of migration, because conflicts or disaffection related to migration are short-term and locally visible (changes in the neighbourhood), while the benefits remain abstract and appear more generally over the middle and long term (creative potential and economic growth). (Kösemen 2015, 32) Besides these problems of structural asymmetries between the statutory legislative model and the phenomenon of migration, one should also mention at least two more strictly legal problems arising from the very nature of such a regulation model. First, as shown above, when applied in a national context (e.g., in taxation law or in criminal law), the statutory model of legislation brings with it, as an underpinning assumption, the basic legal principle that whatever is not forbidden by law (i.e., within the statutory provisions) is allowed by law. As a consequence, applied to a legislative policy perspective, this principle implies that if a specific area, behaviour, or quality is not explicitly regulated in the legislative text, it is subtracted from the regulatory competence of all the other instances, such as the judicial or administrative apparatus. In other words, the text produced by the legislative bodies set external borders for potential regulation, not allowing other actors to intervene and complete it (Huber and Shipan 2002, 44; Elliott 2001, 241; Garoupa and Mathews 2014, 7–8). Despite the level of specification of possible detailed statutory legislation, one can easily assume that the application of such a principle within the area of migration law, particularly in times of crisis, would open the door to catastrophic humanitarian and economic consequences within the targeted national community. For example, one may blend a detailed and exhaustive statutory list of the grounds for allowing a refugee to enter the country on

112  Mauro Zamboni this principle (what is not prohibited is allowed) as applied to the work of the public agencies. This combination will leave the administration with no space for ‘positive’ law-making manoeuvres (i.e., being an exhaustive list, no allowing other grounds). In particular, this is a danger when confronting an individual case that does not entirely fulfil any of the grounds (and therefore is not regarding a ‘specific type of refugee’) but nevertheless can be deemed as partially fulfilling all of them (and therefore regards as a ‘general refugee’) (Xanthaki 2014, 88). Moreover, migration regulation is an area that is more sensitive to specific conditions and contexts of individual cases. For other areas (e.g., financial markets), detailed legislative statutes can find a certain kind of comfort by operating in environments where human behaviours are dominated by generalised patterns (e.g., investing in risky activities in order to increase profits) and are based on a common framework of reference (e.g., investing the money in order to increase them) (Rubin 1989, 418–23; European Parliament 2012; United States Congress 2010). In contrast, regarding migration, it is difficult to grasp the fundamental reasons behind each and every individual within a migratory flux (Arango 2004, 30–3; Castles 2007, 37; Cummings et al. 2015, 24–8). For instance, as the Syrian refugee crisis as shown, it is often difficult to distinguish (and therefore to regulate in detail) whether individuals are escaping wars, economic poverty, or whether they are moving for affective reasons (i.e., family reunification). In many cases, migrants banged on the doors of Sweden simply for a more than legitimate sense of dissatisfaction with their own personal or professional position, as is the case with several highly educated migrants coming from African countries not at war and in relatively stable political and social situations. In other words, more than in other areas of law, law-making in migration exposes the basic weakness in creating new regulations (in particular in legislative form): to create new rules means applying a general model of behaviours to specific and highly individual cases (Bhabha 2005, 31; Kedar 2006, 115; Sunstein 1995, 972–4). Such ontological discrepancy, where the law is made for the individual good but operates for the general good, becomes even more evident when the monopoly of law-making is left to the national assemblies (i.e., when one adopts the statutory legislative model). Due to their primary institutional tasks and responsibilities for governing an entire country, the political actors sitting in the Parliament, when legislating an area such as migration, tend to completely disregard the micro-conditions of the regulation target (i.e., the individual features of each and every migrant). They instead insert the individual’s destiny into macro-considerations, such as economic policies, foreign policies, and social policies and regulate them accordingly (Czaika and de Haas 2013, 489–90; Dekker and Scholten 2017, 210; Castles and Miller 2009, 28–30). Since the statutory model seems not to be a viable option for regulating migration, the Swedish legislative branch has another option in order to tackle this phenomenon: a policy that has been more or less left unexplored in most European countries (with some notable exceptions) when dealing

Law-making to face the migration crisis  113 with the dramatic increase in migratory fluxes. In particular, it seems that the most suitable model for legislation on migration is the one previously defined as judicial legislative policy. The choice of this model means that the main burden of regulation will be on the shoulders of the judicial bodies (particularly at the highest level, i.e., the Swedish Highest Court and the Highest Administrative Court). The latter will see their law-making power extended by the fact that the national assemblies should mainly operate through ‘patchy legislation’, i.e., by regulating via statutory provisions only in very specific and very limited areas of the problem. For instance, the statutes can only tackle the issue of the kind of personal documentation required in order to be assigned refugee status when coming from countries at war or in a situation of civil war (Thanh-Dam 2012, 79–81; Pannia et al. 2018, 26–31; Zolberg 2008, 185). This increased law-making capacity will allow judicial bodies to create a regulatory framework based on the legal principles discernible in both scattered ordinary legislation and non-national legal sources. In other words, the option in favour of a judicial legislative model will burden the judicial bodies with the task of ‘connecting the dots’ of existing regulations. Thus they will create a comprehensive regulatory regime of migration which is in-line not only with the general principles of the Swedish legal system, but which is also consistent with the international and EU legal obligations and criteria endorsed by the Swedish state throughout different stages of its existence (Carpanelli 2015, 141–2; Pineschi 2015, 278; Lambert 2009, 521). For example, judicial legislative policy will leave the judges to define key concepts such as ‘war’ or ‘civil war conditions’; this law-making interpretation could be accomplished in particular by using international treaties as a platform and taking into account the decisions of the international courts as well as the vast and established legal scholarship on those issues (Storey and Wallace 2001, 355–64; Canefe 2011, 176–8). Several reasons support the choice of such a model of legislative policy, at least when it comes to the regulation of migration in Sweden and in particular during times of crisis. In particular, one can perceive three reasons that somehow find their basis in a structural and institutional symmetry or at least compatibility between the judicial bodies and the migration phenomenon they should regulate with their activist approach to a hypothetical, scattered, and fragmented legislation. First, as pointed out previously, one should consider migration as an international phenomenon, as its triggering sources are located outside the national borders. In this respect, the judges (in particular at the highest levels) appear to be the actors who are more open to non-national approaches to various legal issues (Slaughter 2000, 1103–24; Hathaway 2003, 418; Guiraudon 2000, 1107; Lambert 2009, 522–6). Due to their institutional construction (as to the national assemblies) and culture (as to the administration), the legislative bodies and the public agencies tend to have a parochial approach to migration issues, either because they have to think forward to the next election or because ‘following the previous practices’ is part of

114  Mauro Zamboni their DNA. In Sweden (and of course with some considerable exceptions), one can see a trend over at least the last 20 years, in which the judicial bodies have shown a more internationally conscious attitude or an approach that, when it comes to the point of defining ‘what is the valid law’, pays more attention to the law outside national borders (Statens Offentliga Utredningar 1999, 65–6; Thorblad 2004, 282–3; Stern 2010, 186–203). This attitude has been relatively recent since, for many decades, Swedish judges were considered extremely parochial when it came to confronting legal issues of international character. However, since Sweden joined the European Union (in 1995), one can clearly see how the judicial bodies (mostly at the highest level but not exclusively) have perceived their roles as more internationally oriented : they serve as a key actor guaranteeing (also with an activist approach to law-making) that the national legal regimes are in line and consistent with the obligations derived by international treaties and EU law (Werksäll 2014, 1; Bernitz 2010, 480; Warnling-Nerep 2010, 85–9). As to the second reason in favour of viewing judicial law-making as more compatible in regulating migration, one should consider the nature of migration regulation, particularly in times of crisis. Migration is an extremely flexible phenomenon, since the qualities and dimensions of migratory fluxes can change over a matter of weeks, and therefore it requires a regulatory regime that is capable of adapting its law-making to these sudden changes. Nevertheless, when confronting the problem of migration law-making, there is also a certain requirement of rigidity upon the regulators in times of crisis. While qualities and quantities of refugees may vary, Swedish lawmakers are required to maintain loyalty to certain established legal principles, due to constraints of international public law, European law, and the principle of the rule of law in general (Brännström 2011, 14–9; Reichel 2006, 22–3; Nergelius 2009, 147–58). For example, regardless of whether confronting the fluxes of migrants coming from the Balkan civil wars during the 1990s or those escaping the war in Syria, the regulators are required to have a certain degree of rigidity or consistency when confronting legal issues such as definitions of ‘war-like’ situations, the concept of ‘a family’ or the basic rights that each state must guarantee to human beings regardless of their citizenship (Cormacain 2017, 129–35; Regeringen 2009, 146–7; Commission of the European Communities 2009, 4). In this respect, compared to the other two main law-making actors, the judicial actors offer better institutional compatibility with the requirements of flexibility to the particular features and challenges of each migration while maintaining a tendency of stability in its legal framework of principles. When it comes to facing the migration issues in periods of crisis, the Swedish public agencies tend to be too rigid in the creation of the law (due to their institutional culture of being ‘implementing’ bodies and thus path-dependent). On the contrary, the Swedish political actors sitting in the national assemblies tend to be extremely flexible and compromise the legal principles for reasons of political discourse, i.e., because they are structurally sensitive to the change of moods of the electoral bodies (Nielsen 2016, 72–4). In this respect, the

Law-making to face the migration crisis  115 Swedish judicial body may present a better combination of flexibility and rigidity in creating the law to confront the migration crisis. On the one hand, judges tend to have a certain degree of sensitivity to the changing of the factual circumstances, due to their structural position of being the link between the general regulatory provisions and their realisation on concrete and individual cases of human beings (MacCormick 2005, 79–88). On the other hand, due to their legal education and their being legal actors with the main goal of ‘upholding the law’, the judicial bodies tend to preserve a certain amount of rigidity and consistency within their legal culture, particularly in the implementation of fundamental legal principles and their basic standards of interpretation (MacCormick 2005, 97–100; Cotterrell 1995, 231– 2). As stated by an UNHCR official, when it comes to refugee law, ‘the judiciary is key to ensuring that our legal institutions are robust while being able to adapt to changing circumstances’ (Türk 2017). As to the third reason in favour of judicial law-making, one can observe some of the traits typical of judicial bodies (particularly at the highest levels) in a democratic system such as Sweden. One of the dogmas characterising the structuring of the judges (e.g., in terms of career possibilities or the review of their decisions) has been the guarantee that they operate and decide only according to the law, that is, independent of non-legal considerations such as reasoning based on opportunities of national or international politics (Nergelius and Zimmermann 2012, 185–214; Bell 2009, 234–7). In this respect, the judges, more than the other law-making actors, particularly political actors, will tend to disregard the consideration of a macro-character (e.g., economic policy or foreign policy). Instead, by creating regulatory regimes specifically designed for specific cases, the option in favour of the judicial legislative model will allow for the consistent operation of one of the requirements of law-making on migration as detailed above: the necessity of being sensitive to the specific conditions and contexts of each migratory flux (Nicholson 2018, 176–8; El-Enany 2017, 378; Goldenziel 2014, 491). Moreover, the regulation of migration is an extremely complicated matter, in which its multilevel character creates several legal problems. When law-making on migration, regulators must simultaneously handle national, supranational, and international legal regimes, and the coordination of such a complex legal construction can be performed exclusively with the tools and paradigms offered by the legal discourse, that is, the discourse in which the judiciary is considered the master and ultimate guardian (Costello 2016, 323; Henrekson et al. 2019, 14; Mak 2013, 69–78). As strikingly pointed out by Stone Sweet, ‘[i]n today’s multi-tiered European polity, the sovereignty of the legislature, and the primacy of national executives, are dead. In concert or in rivalry, European legislators govern with judges’ (Stone Sweet 2000, 193). For example, when the Swedish lawmaker needs a definition of what a ‘family’ is in order to use the concept of ‘protection of family life’ as a tool to adapt the current regime to a new increase of migratory flux, he or she can be scarcely helped by sociological studies (as used in the national assemblies)

116  Mauro Zamboni or experts in children studies (as used by the public agencies). Instead, the regulatory actor needs to construct such legal concepts through a legally skilled work of interpretation and a combination of national family law with similar definitions traceable in the various conflicts of legal regimes and international treaties (Statens Offentliga Utredningar 2006b, 245–55; Dane 2019, 212–26; Danelius 2012, 370). Due to this strongly legal multilevel nature of the regulatory regime of migration, when faced with the question of who is the most appropriate to create the law (particularly in times of crisis), it becomes quite natural to place the task with the judges, that is, actors who traditionally present the strongest legal background knowledge, not only as to what the law says but also as to how law can be (re)constructed in the face of new phenomena. 4.3.3 (Un)feasibility and (un)accountability of the judicial legislative model It is clear then why Sweden should move towards a judicial model when legislating migration, that is, a model in which the prominent law-making role is played by the judiciary, particularly at the highest levels, while leaving the Swedish assemblies the task of regulating specific and well-limited areas. However, the option in favour of this type of legislative policy does not mean that such a choice presents no problems, although the extension of such critiques should somehow be resized. In particular, it is useful to point out at least two areas of potential problems that can be raised. The first area of possible critique has to do with the actual feasibility of such an option in favour of shifting the main bulk of the law-making to the judicial bodies. In particular, a legitimate critique could note that some areas of migration law place a legal obligation on the national assemblies to regulate via statutory provisions. Such an obligation can be directly inserted in the international treaties signed by Sweden, in the very directives coming from the EU, or simply because the regulation is going to touch areas obliged to be regulated by statutes according to the Swedish constitutional documents (e.g., when directly affecting certain human rights) (Statens Offentliga Utredningar 2017, 41–58; Regeringen 2005, 93–103; Kneebone 2009, 286–93). While this observation is certainly correct, it does not contradict the outcomes achieved in the previous analysis regarding the advantages of having judicial based law-making in migration cases. Instead, the results reached so far have simply reinforced the necessity of having a judicial legislative model in Sweden that serves as a ‘default’ model for regulating migratory fluxes. This model will then operate in all cases in which the legislator retains the option of choosing which type of regulatory channel should be used. In other words, the judicial model should be applied unless the legal system requires unequivocally another form of law-making. The second group of potential critiques of the use of such a model to regulate migration has to do with its unaccountability. It goes without saying that shifting a major part of the creation of the regulatory regime to the hands of the judges will bring with it the risk of having institutional figures

Law-making to face the migration crisis  117 that are structurally unaccountable to the addressees of their norm-creation decisions. The judicial bodies’ accountability is lacking both in a direct form, since they are not elected, and in a more indirect outlook, since the judicial body is traditionally constructed (e.g., in terms of career) to be impermeable to the possible critiques and controls coming from the political actors elected in the national assemblies (Goldsworthy 2015, 9–17; Sumption 2011, 307– 8; Jowell 2003, 596). To point out such potential flaws in the model is certainly worthy, and it is part of a more general critique of democracy deficiencies that can be raised against any system that allows non-elected figures to make decisions that may affect an entire community. However, one should keep in mind not only that the very choice in favour of this model is always accomplished by national assemblies, as democratically elected officials, who will take the first fundamental step in opting for patchy legislation in the area of migration. Moreover, the national assemblies will always maintain the faculty of intervening, for example, with detailed legislation, in areas where they perceive direct democratic control would be necessary for the regulation of certain ‘core issues’ of migration law-making (Raz 2009, 362; Scharpf 2010, 13). Aside from this general observation, two specific elements should be considered in order to re-size the weight of such ‘unaccountability critique’. First, as contemporary history has shown us, a powerful (and in this sense, law-making) judicial body is necessarily part of a democratic system, at least if considered from a legal perspective (Barak 1998, 22–3; Aydm 2013, 105). As demonstrated since the time of the US Supreme Court decision in Brown vs. Board of Education (1954), activist judges can play a central role in maintaining the basic rights (e.g., equality) that each system must protect, regardless of what the political actors and the underpinning majority of their voters may think (United States Supreme Court 1954, 483; Rosenberg 2008, 42–71; Shetreet 2011, 9). In Europe and after World War II particularly, democracy is more than ‘majority rules’. From a legal perspective, it is a form of ‘majority rules’ but within certain stable and unconditional, and in this sense ‘unaccountable’ normative frameworks (Guarnieri and Pederzoli 2002, 68–76, 158–60; Raz 1986, 255–63; Kenneth et al. 2008, 31–5). Second, in line with this broader idea of democracy, a process of cross-fertilisation among the highest national courts of many democratic systems has diffused a ‘culture of rights’ over recent decades (McCrudden 2000, 506; Tushnet 2008, 5; Glendon 1991, 158). This ‘culture of rights’ term refers to the normative phenomenon that the protection of basic rights, among which one can certainly count for instance the individual right to be reunited with one’s family, should be guaranteed to individuals regardless of nationality and as the basis of the very legitimacy of a democracy itself (Sassen 1996, 95; Slaughter 2007, 180–2; Berg and Geyer 2002, 15–6). In this respect, it is clear how this normative paradigm, shared by the vast majority of various national highest courts, makes them somehow accountable, forcing the judges to justify in their law-making any deviation from (or disregard of) such normative standards, for example, in the case of an activist decision

118  Mauro Zamboni restricting the right to be reunited with the family. In this way, the idea of the potential unpredictability of judicial law-making should be reconsidered. It is possible in theory that each Swedish judicial body would create its ‘own’ migration law, depending for instance on the individual judges sitting in the highest courts at the time. However, in reality both the international legal constraints (in terms of rules and culture of rights) and the ‘conservative’ nature of the judicial system (i.e., its being path-dependent) will diminish heavily the risk of such random and ‘breakfast-based’ judicial law-making (Stone Sweet 2004, 30–40; Raz 1979, 196–201; Rehaag 2012, 49–50). When it comes to the protection of basic rights, there is much more stability in judicial law-making that operates through established legal principles (e.g., the right to live with one’s family) than in a statutory legislative model based on volatile statutory provisions (Barak 2002a, 86–9; Schmidt 2018, 61–8; Anker 2002, 133–54). As Sweden has shown in facing the Syrian refugee crisis, it is surprisingly easy for a new parliamentary majority to change the legal rules on re-unification of the family, even if this modification will imperil individual rights guaranteed in the UN Convention on the Rights of the Child and European Convention on Human Rights (Sveriges Riksdag 2016, art. 7 and 13; European Convention for the Protection of Human Rights and Fundamental Freedoms 1953, art. 8; United Nations Convention on the Rights of the Child 1990, Art. 3, 9, and 10).

Conclusion As this chapter has shown, to legislate on migration is not an easy task, and the Swedish situation is not an exception. The choice of finding the right legislative policy is constantly confronted with the endless dilemma that the migratory phenomena present to a nation-state. On the one hand, the extension and the quality of the migratory flux problem to tackle are almost entirely dependent on exogenous factors, i.e., on circumstances outside the control of the nation state. On the other hand, the phenomenon of migration affects one of the cores and constitutive legal principles of the nation state, namely, its monopoly in deciding who may live within its borders. Essentially, in confronting migration (and in particular in times of crisis), the Swedish legislators struggle between the fact of being part of a globalised world, where national borders as to legal core issues tend to disappear, and Sweden’s natural desire to hold to its identity as a nation state, where the ultimate decisions as to who takes part ought to be a decision of the state itself. The goal of this chapter has certainly not been one of solving such complex issues, a problem in which purely legal considerations (though important) are certainly insufficient for resolution. However, it has aimed to show through Swedish migration law in time of crisis that, although it is always difficult to find the right content for the legislation on migration, some attention must also be paid to the modalities on how to regulate, that is, to

Law-making to face the migration crisis  119 the various models of legislative policy. In particular, the Swedish case has put under the spotlight the fact that, when choosing a certain legislative policy concerning migration, less attention and power should be provided to actors who tend to operate according to ‘inward’ oriented parameters. These are actors who are exclusively attentive to the legal discourse of the recipients of national community (as the public agencies), or actors who act for reasons of political discourse (as the legislative bodies), or for reasons of institutional culture (as the administrative apparatus). The major consideration when choosing a legislative policy regulating migration should instead be paid to the fact that this phenomenon ‘naturally’ brings with it references to the outside world and therefore references to highly variable and exogenous factors. In this respect, it is necessary to opt for a legislative model in which the main law-making role is played by actors who can be compatible with the exogenous nature of the phenomenon. Actors such as judicial bodies are institutionally and structurally more capable, at least in comparison with political and administrative bodies, of confronting these changes in triggering conditions and of implementing them into the national community via new regulatory measures. To conclude, the problems shown in Swedish migration legislation (in particular during times of sudden increase of refugee fluxes) have once again proved the embedded flaw in the legislation of the nation state in the age of globalising and globalised phenomena. Although legislation is used as a primary tool of the nation-state to solve problems of an international nature, the supranational character of such problems is often not the primary criterion utilised in selecting the best way to legislate.

Notes 1 In this chapter, by ‘refugee (or migration) crisis’ is meant the ‘extreme pressure characterised by a large and disproportionate inflow of third country nationals or stateless persons, which places significant demands on its asylum system. The crisis situation should be of such a magnitude as to place extreme pressure even on a well prepared and functioning asylum system’ (European Commission 2015, 7). 2 This distinction between ethnos and demos is fairly common in non-legal studies, e.g., sociology or political sciences (Benhabib 1994, 18–9; Lepsius 1986, 753; Epstein 2016, 13–23). 3 In this respect, though several overlap, the modelling used in this chapter differentiates itself from the classifications traditionally used in legislative studies, e.g., ‘principle-based legislation’ vs detailed legislation (Westerman 2013, 395; European Parliament 2007, point 17; House of Commons 2009, 16–18). 4 By making use of this targeted legislative policy, political actors offer a certain informal power to legal scholarship, which tends to have a stronger influence on judicial actors than on others, by bringing to the surface (or ‘reconstructing’) the underlying legal principles in force in an area (Thomas 2005, 4; van Caenegem 1993, 87–8; Duxbury 2001, 17–22). 5 This distinction between synchronic and diachronic approaches is moulded from the field of linguistic analysis (Ramat et al., 2013, 17–18). 6 As to 2018, almost 20% of residents in Sweden are born abroad (Statistics Sweden 2018; Dane 2019, 93–5).

120  Mauro Zamboni 7 In 2014, of the 28 Member States of the European Union, Sweden accounted for 13% of all asylum claims in the EU, second only to Germany (UNHCR 2015). 8 In this matter especially relevant are the ‘legal positions’ produced by the Head of the Swedish Migration Agency, i.e., nationwide guidelines with a binding character for the decision makers (Stern 2008, 102–15).

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5 Can the law create discrimination? Migration, territorial sovereignty, and the search for equality Valeria Marzocco

Introduction: a conditional right—the two faces of the right to migrate Although ours is often described as the ‘age of migration’ (Castles and Miller 1993), the phenomenon itself is by no means without precedent. Studies in population genetics have shown that our species is undoubtedly the result of successful selection throughout history. However, it is also originally—and above all else—the product of a history of mass migrations that began around 200,000 years ago in a region of East Africa and subsequently spread across the planet (Cavalli Sforza and Bodmer 1999). It is no simplification to say that today, as in the past, what drives humans to migrate has remained substantially unchanged throughout the millennia. The specific reasons may vary throughout history, but the main factor is the search for improved living conditions and the necessity to satisfy material needs, both as individuals and as a community. This premise, which may appear somewhat peripheral to the questions posed by migration as a matter subject to legal classification, is actually an integral part of the debate, which is centred on the right to migrate and its status in law. Within this debate, the issue of classifying the right to migrate emerges in far from unequivocal terms. This is especially so if we consider the problems related to reconstructing it from the viewpoint of a comprehensive subjective claim, from which to derive a shared regulatory regime concerning the exercise of territorial sovereignty by states. If the nature of the faculty to migrate as a human right is anything but clear cut, unlike in the past, this may be partly explained by the framework in which this issue is naturally situated: that of the link, or rather, the tension between migration and territorial sovereignty. This link is deeply rooted in the history of the classification of the right to migrate. Its importance is rooted in the legal standpoint and its dilemmatic establishment as a universalist claim from the moment doctrines of modern natural law constructed their first definitions in this regard. The legal classification of the migrant is similarly tied in with statehood. Their specific status differs from that of the mere ‘foreigner’ in virtue of the very purpose of migration: the migrant (unlike the foreigner ‘who comes today and goes DOI: 10.4324/9781003102717-8

134  Valeria Marzocco tomorrow’) is ‘the person who comes today and stays tomorrow’ (Simmel 1950, 401–408). Defining the right to migrate thus implies acknowledging the demand of migrants vis-à-vis the host political community: to be permitted to establish themselves in that community and, above all, to enjoy some, if not all, the prerogatives of citizenship. It is evident from these premises that the right to migrate simply presupposes, by its very definition and aims, the entire imagery on which the modern state has been built (i.e. borders, territory, citizenship). This reveals a conflict with the equally crucial prerogative of political communities to control and govern their political space. Nevertheless, in light of the above, the nature of this right, which is frequently a specific topic of legal scholarship, cannot be understood without addressing the different aspects through which the relationship between migration and sovereignty is interpreted. Its history as a concept unequivocally demonstrates that the right to migrate is conditional; it is subordinate to the sovereignty of states, which establishes the forms and modalities of its effectiveness. Conversely, the regime that a state can exercise its power over the different forms of migration also differs in relation to the distinct phenomena of immigration and emigration. The centrality of these arguments is set out descriptively in migration law, and its importance allows for two distinct interpretations: either that the faculty to migrate is a human right that can only be a universal right, definable in terms of freedom of movement across borders (Pécoud and de Guchteneire 2007) or conversely that it is not because it is subject to a different regime in which the critical aspects concerning the link between migration and sovereignty relate to the right to immigrate itself. Due to its legal nature, the bidirectional nature of migration has led to inequalities in the enforcement of the right to migrate, a disparity that arises from an assessment made from the perspective of territorial sovereignty. While the right to emigrate is unrestricted, with a few historical exceptions, this is not the case for immigration, as the latter calls into question the concept of sovereignty as the domination of political space and the prerogatives that derive from it. Thus, if there is a fundamental right to migrate, it clearly does not have the same degree of effectiveness in both aspects: it is a full right because states cannot curtail it, as they cannot prevent individuals from freely exercising it. This right is restricted in relation to immigration, given the different effects that crossing borders from one political community to another produces in domestic law. These are the two faces of the right to migrate and the different legal regimes that arise from them. They pose crucial questions precisely because it is legitimate to ask whether migration is a universal human right. The premise for an affirmative answer can only be implicit because it takes a normative stance on the universality of this right, regardless of the terms of its relationship to state communities. However, if the nature of the entitlement to migrate is recognised as a single overarching universal human right, we may ask whether this can guarantee its effectiveness within the framework of

Can the law create discrimination?  135 current immigration law and further, in terms of the aim of inclusion for the enjoyment of the rights that it aspires to. This chapter discusses whether the right to migrate is underpinned by the demand for equality. If this is not so, it will surely be condemned to remain a chimaera—as a concept whose ultimate aim is inclusion and participation in the host political community. Before pursuing this line of thought, it may be helpful to take a closer look at the link between territorial sovereignty and migration. Its traces may be found in the conceptual history of ius migrandi in modern theorisations. In this process, migration and sovereignty may lie at the heart of structural references and reciprocal contradictions, just as they did in the past.

5.1  Ius migrandi: theory and ideology The recognition of the right to emigrate has a solid foundation in contemporary constitutionalism, as testified by the post-war constitutions, international treaties and conventions that led to contemporary constitutionalism (Article 13 Universal Declaration of Human Rights 1948; Article 12.2 International Covenant on Civil and Political Rights 1966; Article 2.2. European Convention for the Protection of Human Rights and Fundamental Freedoms). All these documents confirm a long history, dating back to the Magna Carta of 1215 (Article 42) or further. Its elements tended to reappear in the French Constitution of 1791 and the US Expatriation Act of 1868. Emigration is undoubtedly considered a fundamental right, especially in post-Westphalian regimes; however, this is not true for the right to immigrate, over which states exercise their control. For some scholars, this dichotomy is to be interpreted as an expression of a crucial aspect of territorial sovereignty, namely, the self-government of a political community (Walzer 1983, 40–41; Rawls 1999; Miller 1995, 128–129). This perspective is not supported by political theory alone. We may recall that the system of international protection—outlining the circumstances in which the right to asylum may be granted—establishes no fundamental (or human) right to immigrate (Miller 2016, 11–31). Case law on the European Court of Human Rights seems to lead to the same conclusion: the Court has repeatedly confirmed that border control by states is a consolidated principle among the sources of international law (Omoregie and Others v. Norway, Appl. No. 265/07, Council of Europe: European Court of Human Rights, 31 July 2008; Saadi v Italy, Application No. 37201/06 [2008] ECtHR). Unlike migration, which is seen as a phenomenon intrinsic to the very history of the human species, the recognition of a right to migrate seems to be torn into two regulatory regimes reflecting the varying nature of the claims that individuals and groups may bring. Critical issues of this kind are deeply rooted in the conceptual history of the right to migrate, which developed in parallel with its earliest formulations in modern scholarship. Despite the complexity of the topic, which is set within the framework of significantly heterogeneous theories quite often, ius migrandi is ingrained

136  Valeria Marzocco in Western legal culture, conveying instances and ideologies that must be considered if we are to infer useful elements from them and single out considerations on the problems mentioned here, regarding the legal nature of the right to migrate. The next theme to be addressed will be an outline of considerations on migration. It clarifies that the theory of ius migrandi stems, in one aspect, from the meaning of the right to expatriate (and not by mere coincidence), but the status of the claim to join a political community (which places the right to migrate in a condition of constant and structural equilibrium with the discretionary exercise of the duty of hospitality that states own) is quite another. Modern natural law doctrine thematises this specific expression of the right to migrate through a somewhat ambiguous discussion on ius migrandi, which is derived from a discourse that, while theorising the value of the natural right of the individual, establishes that its exercise is ‘conditioned’ by the prerogatives of sovereignty. This viewpoint was already implicit in late scholastic doctrines. It came to be systematised through the development of contractualist theories that were typical of the natural law scholarship of the later modern age. This was a framework in which a corollary of the legitimisation of state sovereignty, grounded in the pact between citizens and sovereign, was the prerogative to control the territory as the legal and symbolic space. A concrete instance of this would be the later argument that sought to distinguish between individual and group migrations. If the former (discessio singulorum) does not affect the pactum between the sovereign and citizens, without prejudice to exercising any state prerogatives, the latter is in clear opposition, as it is likely to violate their conditions (Grotius 1913). Although balancing individual rights and public interest in relation to ius migrandi is a constant in the natural law tradition, there are also some instances of a more lenient attitude towards group migration. Even so, as in Pufendorf’s case, it would seem unreasonable to deny the latter while granting individual freedom to migrate—‘si enim singulis licet pro arbitrio migrare, cur liceat pluribus, quibus sedem fortunarum eodem tempore transferre commodum est? (if it is lawful for individuals to migrate at their own discretion, why should it be permissible for many, to whom it is advantageous to transfer the seat of fortunes at the same time?)’ This argument, albeit useful to limit its scope, still relates to the risks involved in mass emigration. It is undoubtedly necessary to consider the risks inherent in the departure of groups of citizens from a territory—such as leaving cities bereft of their inhabitants— but this phenomenon was insufficient to loosen the bond with societas civilis inter homines (civil society between human beings), because the corruptio (degeneration) of a society is offset by the generatio (birth) of a new one, when a conception of societal and cosmopolitan civil coexistence that would not be absorbed into a state community prevails (Pufendorf 1688, 919). It was within this contractual framework that later authors devised what might be defined as an initial classification of migrant status. For Barbeyrac,

Can the law create discrimination?  137 there are circumstances where the individual right to migrate may not be denied, such as flight from a tyrannical government, poverty and the impossibility or difficulty of ensuring sustenance for oneself and one’s family through work (Barbeyrac 1724, 307). Even from these initial observations, several interesting issues emerge regarding the relationship between migration and sovereignty. However, we should not underestimate the importance of doctrinal developments on these topics among the late scholastics from the mid-sixteenth century onwards. This was the matrix from which an explicit theorisation of ius migrandi originated. Against this backdrop, the right to migrate was embedded in a legal discourse which—albeit not yet in mature terms—sought to lay the foundations of international law (ius gentium), superimposing it onto an ideal of communication and exchange between people (ius societatis et communicationis). This ideal would be understood as a vehicle for the ‘natural’ sociality of human beings, which comes about through communication with one’s peers to build ties and overcome the divisions dictated by the territory and its borders (de Vitoria 1539). A set of rights, as the expression of a principle of cosmopolitan hospitality that includes ius migrandi, is firmly anchored within this framework as a universal but structurally limited right. It is asymmetrical and a human prerogative. For the scholarship of the time, ius migrandi was a natural right to which every individual was entitled to from birth. It is appropriate here to note that an ideological tension pervades the premises, leading to the recognition of the right to migrate in a specific period of European history that contributes to legitimising—from legal and political viewpoints—the colonial conquest of non-European territories by the states who are most directly engaged in extending their dominions (Dummett 1992). These aspects are explicit in the doctrine of Francisco de Vitoria, who postulates a theory where the significant elements of ambiguity emerge. Ius migrandi participates in the law of nature, which all of humanity must be subject to. It is a prerogative that contributes to the realisation of relations between people according to an ideal of cosmopolitanism based on a shared human identity. For De Vitoria, this connects ius migrandi as a ‘natural right’ to a complex of other freedoms. This also includes the right to free movement (ius peregrinandi), which is understood as the fundamental axiom of the law of nations (ius gentium) (de Vitoria 1539). In this discourse, however, an additional and substantive feature of ius migrandi emerged, one that De Vitoria deemed as possessing all the characteristics of an implicitly non-universal right and as a clear representation of the albeit undeclared affirmation of an asymmetry in the ownership of this prerogative (since its declared universality only regards Europeans, legitimising their right to expatriate). This does not address the legal significance of immigration, as it is not addressed to every recognisable political community. Furthermore, it endorses the principle of

138  Valeria Marzocco the use of force against those who oppose it (vim vi repellere licet), thus formally justifying the imperialistic claims of sovereign states (Williams Jr 1990, 37). The dual nature of ius migrandi—whose universality takes up an ideological stance for what migration should mean, justifying its legitimacy based on a conception whereby the only political community authorised to limit its exercise was the state—continued to be part of the tradition handed down from natural law to liberal schools of thought. For Locke, of course, ius migrandi was firmly anchored in the migration/ sovereignty binomial if we accept that the right to migrate is a function of the freedom to access the resources of the land, from which the title to individual property is formed. The same conception, granting legitimacy to its exercise, remained unchanged: the right to migrate was still the prerogative of all and served to guarantee the occupation of the territory, subtracted from the sovereignty of states. One example Locke provides is the occupation of ‘the wild woods and uncultivated waste of America’ through migration (Locke 1690, 294). Since it was uncultivated and uninhabited, Europeans could only imagine it. For Kant, however, a different order of discourse entered the scene, making explicit what had been a matter of mere ideology in previous theories of ius migrandi, thanks to the clear and decisive juridical connotation that he gave to the relationship between migration and territorial sovereignty. For Kant, the relationship between ius migrandi and state sovereign power is central to a discourse that brings out the viewpoint of sovereignty through the formulation of the ‘universal duty of hospitality’. This is geared towards peaceful and lasting human coexistence and the object of a moral imperative (Kant 1795; Nussbaum 1997, 25–58). As Derrida puts it when commenting on Perpetual Peace (the short treatise where this theme is discussed), the roots of a lasting vision that would have a decisive impact on political and legal thought for years to come may already be found in this late eighteenth-century work (Derrida 1997). Focusing his critique on the notion of ‘world citizenship’, the French philosopher sees Kant’s legacy as looking to the present age in a paradox whereby the universal imperative of hospitality is conceived and manifested as a constraint. It is emptied of its alleged universality through a political definition of its conditions. According to the Third Definitive Article, the ‘law of world citizenship shall be limited to conditions of universal hospitality’ (Kant 1795, 1923, 443). Thus, Kant sees the duty of hospitality as intrinsically bound by a constraint (it is never unconditional) that restricts—for the first time in explicit terms—the perimeters of the right to migrate, whose universality can be expressed as a ‘right of visitation’ (Besuchsrecht) and not a ‘right of residence’ (Gastrecht) (Derrida 1997, 53–56). Despite forming the basis for the concrete ideals of cosmopolitanism, the universal duty of hospitality remains a moral imperative that is unable to override state-imposed limitations. This duty is distinct from the political dimension, despite being subjected to it. It materialises as an ethical imperative with no claim to any form of

Can the law create discrimination?  139 unconditionality. This is an exemplary circumstance, leading, as Derrida suggests, to a state-centric model of hospitality that is contingent on the territorial sovereignty of political subjects (Derrida 1999, 87).

5.2 The freedom of cross-border movement and its paradoxes The doctrine of ius migrandi shows that the freedom to migrate has never been considered free of public interference, either in its natural law formulations or liberal positions. These terms fit into an ideological framework deeply rooted in modern Western history, an instance of tension that runs through legal and political reflections between (political) authorities and (individual) freedom. If the right to migrate, as the historical excursus broadly outlined here has shown, has never been seen as a comprehensive universal right (at any rate, it has not yet been declared to be so in the sources of international and conventional law), we may well ask whether the tie between migration and sovereignty does not fall into a broader debate on the legal nature of universalist claims, whose effectiveness is still a matter for the political power of states. Naturally, the dual aspects of the right to migrate not only raise the problem of different regulatory regimes governing the distinct actions of emigration and immigration but also raise the question of how to categorise this right, whose declared universality cannot extend to any specific case unless we accept that this universality exists on paper only. If we argue that individuals or groups may claim the right to migrate, we must address the problem of its historical and positive connections with territorial sovereignty, even if this provides no easy solutions. One obstacle to this is the existence of different constructions that, starting from the same premise supporting the universality of the right to migrate, address the question of its legal nature in various, albeit largely compatible terms. Eschewing the ‘conditional’ nature of ius migrandi, which prevents any universalist considerations, some scholars hold that the right to migrate would be better protected by recognising a claim that generally upholds the freedom of cross-border movement. Nevertheless, it is hard to deny that the freedom to move across borders creates the same problem that arises with human rights in general, namely their legal value and effectiveness. This critical issue is still a topic for debate. It constitutes a classic theme, as the existence of universal rights had previously been challenged by Jeremy Bentham, who famously defined such legal prerogatives as ‘nonsense upon stilts’ (Bentham 1987, 46–69). He objected to the paradoxical character of rights propagated according to a ‘language of daggers’, using formulas containing ‘be’ rather than ‘ought to be’, thus compromising their justiciability in the opinion of the English jurist and philosopher. Concerning this argument, the direction followed by human rights over the centuries has perhaps shown the limits of Bentham’s prophecy. Indeed, supranational and international court rulings demonstrate that human rights often influence significantly on judges’ decisions, even though they do not bind states, per se.

140  Valeria Marzocco Within this framework, it is difficult to shield the argument supporting the right to migrate as a human right from certain all too easy objections. While acknowledging and striving to overcome the contradiction between migration and sovereignty, the discourse returns to the question of state sovereignty in terms of its effectiveness. Alongside those who argue that migration should be considered a human right (a thesis accompanied unsurprisingly by a proposal to eliminate language that perpetuates the history of its limiting connection with sovereignty, in favour of the right to free cross-border movement over the right to migrate—Carens 1987; Cole 2011; Kukathas 2014) others have used various arguments to agree: imposing an obligation of reception on states and limiting the exercise of their power to control borders. As for this position, the mere formal assertion of the right to migrate, which can only be understood as a universal claim, is insufficient unless it is given full normative value, which implies the need to impose a negative obligation on states not to prevent its exercise (Ferrajoli 2007, 350; Oberman 2016). In the context outlined above, the argument that the prerogative to migrate is a human right—albeit recognising and committed to overcoming the contradiction between migration and sovereignty—can be challenged on two fundamental grounds. On the one hand, the question ultimately comes back to the debate on the sovereignty of states in terms of effectiveness. On the other hand, it introduces (but does not discuss) citizenship and fundamental rights, which must unequivocally guarantee their implicit underlying normative basis, namely the reduction of unequal access to primary goods. Seeking a solution within the framework of this constitutionalism of rights extends the traditional horizon of legal positivism into a global dimension. Conversely, the interpretation prevalent in the history of legal doctrines and in terms of a ‘moral right’ is closer to the simple assertion that the liberty to migrate is a human right. This line of thought has not failed to attract various reasoned criticisms (Seglow 2005; Wellman 2008, 109), but it certainly deserves attention. Considering the freedom to migrate as a ‘moral right’ has the clear advantage of preserving its comprehensive character, overcoming the contradictions illustrated above regarding content, and perpetuating the interpretation with a firm place in theoretical tradition. It is probably sufficient to recall that this right was already authoritatively recognised in the eighteenth century, in homage to the cosmopolitan ideals that are dear to Enlightenment thinkers, as well as the notion that ‘great tenderness is shewn by our laws, not only to foreigners in distress (…) but with regard also to the admission of strangers who come spontaneously’ (Blackstone 1765, 259). Nevertheless, the ‘duties of humanity’ that were meant to limit the rights of states to repel the needy were often connected with droit interne (of a moral nature) and were legally ill-suited to check any contrary decisions by sovereigns or deprived them of effectiveness (de Vattel 1758, 115). Is there a common thread running through the positions outlined here other than the attempt to safeguard a comprehensive and universal definition

Can the law create discrimination?  141 of the right to migrate? In reality, even among those who argue that the right to migrate cannot escape its limiting tie to territorial sovereignty (unchanged) and that it is better defined as the right to free cross-border movement— some even contemplating a ‘conditional opening’ of borders (Kymlicka 2001; Bader 1995)—the regulatory perspective they favour rests on the premise that binds the freedom to cross borders to a guaranteed fair and universal access to primary goods (Kukathas 2014). This freedom is a genuinely universal version of the right to migrate; thus, it is perceived as a right that aims to achieve the goal of full migration, namely emancipation from material inequality among human beings simply because they are citizens of different states (Cole 2011). Opening borders to migrants is, therefore, one objective of global justice. It can be considered as such only if it can guarantee true equality, overcoming the means of exclusion that citizenship represents. While it is not difficult to recognise this normative reasoning in the argument for opening borders (i.e. that inequalities between citizens and noncitizens in the enjoyment of fundamental freedoms are unjust and should be eliminated), it remains to be seen how this objective can be pursued in practice. This stigmatises the concept of citizenship (which would be undermined more so in ideological rather than legal terms) while safeguarding the fundamental rights that stem from it and which, especially if we consider social rights, are theoretically those called upon directly to pursue the objective of equalising disparities for access to essential goods. It is necessary to consider the hypothesis that, despite the compelling arguments, the positions in favour of opening borders to counter the ideologically connoted character of the right to migrate fails, by universalising it, to neutralise the model that initially bound it to the paradigm of state sovereignty.

5.3 The new face of the relationship between migration and sovereignty In light of the link between migration and sovereignty that we explored from historical and theoretical perspectives, one may wonder whether defining the right to migrate is indeed the issue that must be addressed. Such a query is not only justified by the abovementioned criticisms but also invites further questions, especially if one adopts the realistic viewpoint of migration policies that have been adopted in recent years. Representation of the migration crisis that intermittently weighs on Western countries has undoubtedly focused on the prospect of a conflict between the right to migrate and the sovereign power of states to control or limit entry onto their territory, but in a framework that has not remained unchanged. It has been affected by the transformations that the concept of sovereignty has undergone (Sassen 1996), as well as by the quantitative and governmental linguistic order of practices in which it is expressed (Butler 2004), where words such as ‘flows’ ‘quotas’ and ‘reallocation’ (Plender 1988, 320) prevail. The issue of the recognition of rights seems to arise only in the domain of national and supranational jurisdictions.

142  Valeria Marzocco This confirms a paradox. On the one hand, the legal questions posed by migration in terms of international law remain anchored in the theme of recognising human or fundamental rights, as endorsed by the main Conventions and Declarations stemming from the aftermath of World War II. On the other hand, in the case of law produced by states or supranational bodies, regulating migration becomes a question of administrative practices that are apt to manage population flows. Here, the question of the categorisation of subjective conditions gives rise to a constant and sometimes unsuccessful dialectic with the quantitative and securitarian management of the phenomenon (Bigo 2002; Anderson 2013). In this context, the issue ceases to be the recognition of the right of individuals to cross borders freely. The question instead relates to the authority to govern a mass phenomenon of the subjective conditions that have multiplied, according to the varying ability of incomers to integrate, with consideration for the social and economic needs of the host community. If this is only a matter of migrant access conditions, it is difficult not to recognise that documents and passports that used to be instruments that sovereign states utilised to ensure population control are losing ground to other mechanisms in current immigration law because of the internationalisation of migration policies (Aleinikoff 2014; Papadopoulos et al. 2008). Whether these practices suggest reconsideration on the transformation of sovereignty or its irreversible crisis is a question that has long since interested political and legal theorists; migration undoubtedly offers a challenging example. This administrative approach to migration has prevailed in European policies for decades, within a framework that firmly maintains that states have control over their borders. The strategies of tightening the rules on entry to the continent are central to this position, to the point that jurists consider the notion of ‘Fortress Europe’ to have taken hold (Gammeltoft-Hansen et al. 2017; Hathaway 1992; Finotelli and Sciortino 2013), to an alarming degree, not least because these policies are in de facto conflict with established principles of European law, including the prohibition of ‘non-refoulment’ (Papastavridis 2018). Drawn into the context of these approaches, recognition of the right to migrate is subject to the conditions that determine its exercise through ‘legal’ channels of entry that ultimately deny its effectiveness, even—and especially—in cases that implement protection under international law. European Union (EU) Regulation 2018/1806 of the European Parliament and the Council of 14 November 2018 is an essential document enshrining the visa requirement for third-country nationals, based on ‘criteria relating, inter alia, to illegal immigration, public policy and security’ (Article 1). It supplements the provision that criminalises facilitating the immigration of undocumented persons onto European territory, also extending sanctions to private organisations that aid their disembarkation (Directive 2001/51/EC; Directive 2002/90/EC). In light of these issues and despite the formal call to observe humanitarian obligations of reception intended to bind states, entry into Europe is in effect barred to citizens arriving from countries where

Can the law create discrimination?  143 torture and inhuman and degrading treatment are perpetrated. As a result, the greater the restrictions on ‘legal’ channels of entry, the greater the migration flow that is deemed ‘unlawful’ in European law, even though it ought to be protected as a human right (Inda 2006). Even if the Commission has recently moved to mitigate this framework in response to a request from the European Parliament, inviting the Member States to distinguish between ‘humanitarian assistance’ and ‘human trafficking’ (European Commission C (2020) 6470 final, 1), the discretion of states in this sphere remains unchanged because the Commission’s Communications are non-binding. Consequently, above all in the field of asylum and despite the case law of the European Court of Human Rights (M. A. and others v. Lithuania, Application No. 59793/17, Judgement of 11 December 2018; NT & ND v. Spain [GC], appeal nos. 8675/15 and 8697/15, Judgement of 13 February 2020), states continue to exercise their territorial sovereignty through discretionary control over the subjective conditions that authorise ‘legal’ entry into EU territory. Recently, the European Commission again entrusted a document known as the ‘New Pact on Migration and Asylum’ (European Commission, 23 September 2020) with defining the objectives aimed to ‘build a long-term migration policy that can translate European values into practical management’. Its goal is to promote a comprehensive approach to the issues that migration raises for the EU and its Member States, including the ‘management of external borders’ (p 2). The main objective of this pact is to promote secure ‘legal pathways’, allowing individuals who are seeking protection to enter EU territory. This issue has been on the Union’s agenda since at least the early 2000s. It was already envisaged in the 2015 European Agenda on Migration. Nevertheless, resettlement (the practice of reallocating ‘legal’ migrants to one of the member countries) is still specified as the only means of safe access to Europe, as even today it is considered capable of offering protection to the most vulnerable refugees. This would be a step forward if the numerous problematic aspects of this model (e.g. the continued disparity between countries or the need to possess a document) were not in evident conflict with the system of refugee protection established in international law, which reduces the effectiveness of human rights, let alone the right to migrate. In this framework, and despite shifting onto the level of the government’s exercise of political power, the relationship between migration and sovereignty remains essentially intact. Indeed, concerning what has recently become the core EU policies and their unresolved critical issues, it is legitimate to ask whether it is still appropriate for states to exercise broad and discretionary power over the reception of migrants. Migration is ultimately a political issue that lends itself to exploitation on securitarian grounds, upon which leaders have sometimes built their consensus. Perhaps this is the reality that must be confronted to pick up the threads of the discourse that has unfolded thus far on the connection between migration and sovereignty. Furthermore, this is true in light of the impasse that entitlement to migrate

144  Valeria Marzocco falls into as a human right with universal claims. Thus, there is a deadlock that condemns this claim to remain subject to the discretion of states under the impotent gaze of international law, no matter the theoretical construction.

Conclusion: the ‘holiness of the cow’ reconsidered As Seyla Benhabib suggests, there can be no doubt that addressing the link between migration and territorial sovereignty means openness to widening one’s perspective to grasp the ‘series of internal contradictions between universal human rights and territorial sovereignty (…) built into the logic of the most comprehensive international law documents in our world’ (Benhabib 2004, 11). Some scholars claim that this is inseparable from the very genesis of liberal democracies, represented by the metaphor of its ‘nocturnal body’ (Mbembe 2019, 22). Western political systems are born and set up as ‘societies of separation’ between those included in the sacred space of citizenship and those who are excluded from it for any number of reasons. For those who cross the boundaries of the nation-state, the instrument of citizenship may be said to establish ‘a regime of inequality at the planetary scale’ (Mbembe 2019, 19), in which there are ‘wasted lives’ (Bauman 2004) that are condemned to segregation and expulsion. Such hypotheses take root within a narrative of irenical rights-based global constitutionalism, revealing a darker side that is visible in the contradictions within the citizenship system. Refracted into a multiplicity of categories and extending well beyond the traditional distinction between citizens and non-citizens, citizenship would, from this perspective, be seen as a multiplier of hierarchies that are capable of endorsing the increasingly stratified and mobile perimeters of selection. These are geared more towards exclusion rather than inclusion. The various forms of hierarchisation that run through global constitutionalism appear to interpret the meaning of a ‘border’ as no longer communitarian but subjective since it is absorbed into a form of an embodiment, where practices that favour exclusion with shifting accents are produced (Mbembe 2019, 158–159). From this viewpoint, boarders are political concepts able to construct differences and inequalities building on the material needs of the bodies excluded from or included in their perimeter. This, on the one hand, asserts the ideological character that binds the construction of territorial sovereignty through the concept of the border, and stresses the migrant, on the other, as the vital and destabilising subject of liberal legal systems par excellence. Those who cross borders testify to a permanent and implicitly political conflict: a ‘form of resistance’ that can question and contradict ‘the absoluteness of political borders and boundaries, challenging the holiness of the cow that citizenship, as a concept, is’ (Samaddar 1999, 77). This is so by virtue of the political (even before the economic) claims that migration makes. Although they doubtlessly interpret the governmental dynamics that currently impinge on the connection between migration and sovereignty, such

Can the law create discrimination?  145 analyses risk supporting the thesis whereby the protection of human rights and the objectives of global justice that seek to extend to the greatest freedom of access to primary goods must (and can) dispense with citizenship rights. The limits that these positions project onto the complex theoretical and political problems posed by migration are, however, still evident when one considers the solution of certain scholars: within the framework of the same critical approach toward territorial sovereignty, these scholars believe that, in order to ensure the protection of equality, it is preferable a definition that shifts from the right to migrate to the freedom to cross borders. As the experience of European law depicts, freedom of movement, even when expressly sanctioned, cannot evade the discretionary power of states. This is evidenced by the fact that even within the European legal space itself, the rights of residence and access to work and welfare of citizens who come from Eastern countries are subject to disparities (van der Woude 2020). While fighting discriminatory practices is one of the main objectives underpinning the process of harmonising European law, it is the pursuit of equal access to essential goods that appears to be the real issue. This is true not only in the field of migration. It should also be the focus of future reflections, adopting a realistic approach to the issue of rights: one that can withstand the changing practices through which contemporary sovereignty is expressed.

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6 The gap between constitutional rights and human rights The status of ‘foreigners’ in constitutional law and international human rights law Akiko Ejima Introduction: demystifying ‘no immigration’ When the 2015 refugee crisis received global attention, Prime Minister Shinzo Abe emphasised in his UN General Assembly speech that it would be the biggest theme of the year (Abe 2015). However, when a journalist subsequently asked him about the possibility of accepting refugees, he replied, It is an issue that must be tackled in cooperation with the international community. In terms of the population problem, before accepting immigrants, we need to work on women’s activities, the activities of the elderly, and to raise the birth rate, there are still steps that need to be taken. At the same time, Japan would like to fulfil its responsibility in this refugee issue, and Japan would like to contribute to changing the very soil that creates refugees. To understand the questioner’s intention, it is helpful to note how many refugees Japan has accepted so far. The country only accepted 11 refugees in 2014 and 27 in 2015, when other developed countries accepted thousands or even more, and the neighbouring countries of the home countries of refugees accepted millions (Immigration Services Agency of Japan 2020, 72; UNHCR 2021). This extremely reluctant attitude of the Japanese government has been criticised both at home and abroad. Nevertheless, it remains unchanged till today as the country accepted a mere 28 refugees in 2016, 20 in 2017, 42 in 2018, 44 in 2019, and 47 in 2020 (Immigration Services Agency of Japan 2020, 72). The Prime Minister’s answer is in line with the government’s policy: Japan does not accept immigrants and, therefore, does not have or need to have an immigration policy. This policy is also clear from official government documents. For example, the annual white paper (Immigration Services Agency of Japan 2020) or the Basic Plan for Immigration Control and Residency Management (Ministry of Japan, 2019) does not use the terms ‘immigration’ (移民) or ‘immigration policy’ (移民政策). The English translation of the name of this agency, the Immigration Services Agency of Japan (ISA), may even be misleading. The verbatim translation of the agency’s official DOI: 10.4324/9781003102717-9

150  Akiko Ejima Japanese name, ‘Shutsunyukoku Zairyu Kanri-chou’ (出入国在留管理庁), means it controls exit, entrance, and stay in the country. It does not contain the word ‘immigration’.1 Hence, there is already a discrepancy as to how it is used internally (in Japanese) and internationally (in English). The fact that there are immigrants in Japan is not questioned. There is no universally agreed definition of migration or immigration. Immigrants are often understood in Japan as those individuals or groups of individuals who move to another country in hopes of living there permanently.2 This understanding might have been influenced by past experiences before World War II when some Japanese moved to a foreign country to settle as they could not make a living in Japan. If the will to live permanently is to be included in the definition of immigrants, then Japanese law does not have such a category. However, more widely accepted definitions do not require the intention to settle (United Nations Department of Economics and Social Affairs 1998). According to the UN, immigrants are people who have moved from their country of birth to another, temporarily or otherwise (Nagayoshi 2020, 4). If we use this wider definition, what then will the number of immigrants in Japan be? Although there are no official statistics, researchers estimated that they will comprise about 1.2–2.0% of the Japanese population as of 2015 (Nagayoshi 2020, 10; Korekawa 2018, 21). This number is estimated to increase to 6.5% (4.23 million) in 2040 and 6.4% (5.62 million) in 2065 (Korekawa 2018, 21). If the number of children born between a Japanese and a non-Japanese parent is added, the number of immigrants was at 2.6% (about 3.33 million) in 2015; it would increase to 6.5% (7.26 million) in 2040 and 12% (10.76 million) of the population (Korekawa 2018, 21) in 2065. These estimates reveal a different picture of Japanese society at present and in the future. It is necessary to demystify the perception of immigration that is held by the government and the public. What is the consequence of the narrow definition adopted by the Japanese government? Japan is categorised as immigration without integration by the Migrant Integration Policy Index (MIPEX) because its policies deny that it has become a destination country (MIPEX 2020). The MIPEX assessed Japan as the country where immigrants may find ways to settle long-term but they are not fully supported with their rights and equal opportunities to participate in society. This group of countries is halfway toward investing in equal opportunities. Policies may encourage the public to see immigrants as subordinates and not neighbours. (MIPEX 2020) It is time to demystify immigration in Japan and the world in general (Nagayoshi 2020, ii–iii; Chetail 2019, 2). Even before the COVID-19 pandemic, many immigration problems have already been pointed out in Japan, such as low wages, poor working conditions, health, harassment, discrimination, education, human trafficking, exclusion from the Japanese community,

Constitutional rights and human rights  151 detention of over-stayed people in an immigration facility, and deportation without legal protection. Discrimination against Korean residents has also not yet been solved. Hate speech or discriminatory expressions against Korean residents in social media and the public sphere have been reported. The government indeed reformed the existing legislation to cope with the situation, but it was a belated effort and not effective enough to tackle the problems. Moreover, the pandemic has worsened the situation. It is time to examine whether the present system (constitutional and international) can protect the human rights of foreigners and migrants. Section 1 focuses on the drafting process of the present Japanese constitution to explore who were responsible for protecting foreigners’ rights and why. Section 2 examines how far the courts can maintain and promote the rights of foreigners when the Constitution does not contain a clause guaranteeing foreigners’ rights. In particular, the problem of the McLean case will be explored, as it has been criticised for hindering the protection of foreigners’ rights. Section 3 explains the role of international human rights law in two spheres: international oversight and domestic implementation. A proposal to see the constitutional and international systems as a holistic system will be made in order to cope with these problems.

6.1  Constitutional history The present Constitution of Japan is the outcome of World War II (Rosenfeld 2012, 768).3 The unique feature of the drafting process is the US occupation army’s heavy involvement in it. General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP) ordered the government section of the US occupation army to prepare a constitutional draft. The preparation included consulting Japanese civic groups as well as foreign constitutions. Although the present constitution is an amendment to the previous one, i.e. the Constitution of the Empire of Japan (CEP), its core principles deny the fundamental principles of the CEP. The sovereignty has moved from the emperor to the people who were once its subject (Article 1 of the CEP). In addition to civil and political rights, social rights were guaranteed (Chapter III of the Constitution). Art 9, which is often called the pacifism clause, renunciates war and prohibits armed forces. When the SCAP found that the Japanese government was not capable of drafting a constitution that was compatible with the Potsdam Declaration, a condition for the Japanese surrender, MacArthur decided to take over the preparation.4 This was the exact case that required the involvement of ‘others’ like the SCAP to adopt the international or global standard. However, the cost of this involvement is that the outcome was labelled as the ‘imposed’ constitution (see Albert 2019). Equal protection and guarantee of the rights of foreigners living in Japan were some of the special features of the SCAPA draft (Koseki 1997, 114). The first draft prepared by the sub-committee on human rights used the expression ‘natural persons’, and included the protection of foreigners (Takayanagi et al. 1972, 219, 221; Koseki 1997, 87).

152  Akiko Ejima Article: All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational or domestic relations on account of race, creed, sex, social status, caste or national origin. Article: Aliens shall be entitled to the equal protection of the law. When charged with any offense, they are entitled to the assistance of their diplomatic representatives and of interpreters of their own choosing.5 These provisions remained in the final draft of the SCAP, which was submitted to the Japanese government on 13 February 1946 (Takayanagi et al. 1972, 223; Koseki 1997, 87). Article 13: All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste or national origin. Article 16: Aliens shall be entitled to the equal protection of law. However, once the Japanese government received the SCAP draft, they ‘Japanized’ it with the skill of the Legislation Bureau officials (Koseki 1997, 111). Therefore, it was not merely a translation of the SCAP draft. The disappearance of the protection of foreigners’ rights is a good example. The revised draft was eventually submitted to the SCAP on 4 March 1946 (Koseki 1997, 114). Article 13: A  ll the people are equal under the law and there shall be no discrimination in political, political, economic, or social relations because of race, creed, sex, social status, or family origin. Article 14: Aliens shall have the right of equal protection of the law. It is important for the changes to appear subtle and trivial in order to be accepted (or unnoticed) by the SCAP. The changes from ‘all natural persons’ in Article 13 of the SCAP draft to ‘all the people’, and from ‘caste or national origin’ to ‘family origin’ did not seem a big modification because of the existence of Article 14 in the Japanese draft which kept the SCAP draft. However, two important changes were later made. First, Articles 13 and 14 were consolidated. However, as proposed by the Japanese, Article 14 disappeared and a clause on the rights of foreigners was added in Article 13 (Koseki 1997, 120). Article 13: A  ll natural persons are equal under the law and there shall be no discrimination in political, political, economic, or social relations because of race, creed, sex, social status, or family origin. At midnight on 4 March 1946, Tatsuo Sato, a Legislation Bureau official (Japanese side) had reached an agreement with the SCAP on the following clause (Koseki 1997, 129):

Constitutional rights and human rights  153 Article 13: All natural persons, whether Japanese citizens or not, are equal before the law. No discrimination shall be authorized or tolerated in political, economic, or social relations on account of race, creed, sex, social status, cast or national origin. Then Sato negotiated with the SCAP and succeeded in deleting the phrase ‘whether Japanese citizens or not’ and ‘national origin’ to have it worded as follows: ‘All of the people are equal under the law … [and there shall be no discrimination] because of … social status or family origin’ (Sato 1955, 35; Koseki 1997, 129). The reason why the SCAP agreed to change was not clear. With this change any clause or wording which could have protected the rights of foreigners completely disappeared because ‘all of the people’ means the Japanese nationals (see the following second change). The second change was a new Article 10, which was proposed by political parties during the deliberation stage at the Diet (Koseki 1997, 179–180). Article 10: T  he conditions necessary for being a Japanese national shall be determined by law. Again, Article 10 appears to be a harmless technical clause, which was approved by Japanese parliamentarians without any opposition. The SCAP also approved it after considering it as a mere technical clause because they did not know that ‘the people’ and ‘Japanese national’ were expressed using the exact same word in Japanese (日本国民 nihon kokumin). The Nationality Act was enacted to stipulate these conditions.6 It means that the term ‘the people’ used in the Constitution refers to the people who have Japanese nationality granted under the Nationality Act. This insertion is important in answering who has the right to vote and who has the right to enter Japan (presented in Section III). Finally, progressive attempts to protect the constitutional rights of foreigners have been eliminated. The constitution itself does not have any clause to protect their rights. The drafting process clearly reveals the attitudes of the two groups (the Japanese government and the SCAP) involved therein. The Japanese government was keen to delete such protection despite (or because of) the Korean people in inland Japan who had been treated as Japanese subjects before World War II when Japan colonised Korea. This contrasts with contemporary constitutions, such as those of Italy and Germany (Article 10 of the Constitution of the Italian Republic and Article 16a of the Basic Law for the Federal Republic of Germany), which provide for the right of asylum and/or the guarantee the legal status of foreigners. Meanwhile, the SCAP compromised during the negotiations as it was not as enthusiastic about the protection of foreigners as it was about the realisation of popular sovereignty. The following is the present text of the Constitution, which has not been amended since its promulgation. It should be emphasised that in the official Japanese text, ‘the people’ refers to the Japanese people. CHAPTER III. RIGHTS AND DUTIES OF THE PEOPLE

154  Akiko Ejima Article 10: T  he conditions necessary for being a Japanese national shall be determined by law. Article 14: A  ll of the people are equal under the law and there shall be no discrimination in political, economic, or social relations because of race, creed, sex, social status, or family origin.7

6.2  Constitutional status of foreigners: The McLean Case If the text of the Constitution does not prescribe the rights of foreigners living in Japan, the extent of their protection under the Constitution is the matter that should be addressed. The Constitution provided new judicial power to the Japanese courts (Article 81). However, the Supreme Court of Japan (SCJ) is not a constitutional court but an ordinary one, which is deferential to the Diet (see generally, Hasebe 2018). It should be noted that Korean and Taiwanese people lost their Japanese citizenship because of the Peace Treaty (signed in 1951 and entered into force in 1952), which enabled Japan to regain its sovereignty.8 The treaty itself does not explain the change in nationality. On 19 April 1952 the Director of the Civil Affairs Bureau of the Ministry of Justice issued a circular that interpreted Article 2(a)(b) of the Peace Treaty and expressed that Koreans and Taiwanese lost their Japanese nationality.9 The order was made to clarify the guidelines for nationality processing and family registration.10 Afterwards, approximately 560,000 Korean and 20,000 Taiwanese who had been Japanese subjects, could vote and stand for an election, and had military service obligations, were suddenly treated as foreigners who did not have civil rights. If they wanted the Japanese nationality, they needed to go through naturalisation which is psychologically and/ or economically difficult for them because they resented Japan’s previous colonial rule. In the end, they did not have a choice, were deprived of citizenship, and faced discrimination in employment, marriage, and education (Kashiwazaki 2000, 22; Onuma et al. 2005, 101). It is not surprising that they tried to enforce their rights through the court system. The academics have interpreted that the rights of the Japanese people in the Constitution are also applicable to foreigners, except for those whose nature hinders their application, such as the right to vote, social rights, and the right to enter Japan. This is because human rights existed before states and constitutions were established. They consider Article 98 of the Constitution to support their interpretation, as it prescribes that the treaties concluded by Japan and established laws of nations shall be faithfully observed. The internationalisation of human rights which was concretised by the establishment of international human rights treaties also strengthens this interpretation (Ashibe 2019, 92). The SCJ also adopted the doctrine of the nature of rights (kenri seishitu setsu) in the McLean case in 1978.11 However, there is an important difference between case law and academic views. McLean, an American citizen who taught English in Japan, applied for the renewal of his permit to stay there in order to continue his study of Japanese classical music. However, the

Constitutional rights and human rights  155 Minister of Justice denied it because he participated in the demonstrations against the Vietnam War in Japan. The SCJ held that the guarantee of fundamental rights included in Chapter III of the Constitution also extends to foreign nationals staying in Japan, except for those rights that by their nature are understood to apply to Japanese nationals only. Hence, the SCJ’s position is very similar to that of the academic view. However, the important difference is that the SCJ held that the Minister of Justice had a wide discretion to take into account the activities of foreigners while living in Japan when the Minister is deciding to grant permission for the sojourn of foreign nationals there. It held that the ‘guarantee of fundamental rights to foreign nationals by the Constitution should be understood to be granted only within the scope of such a system of the sojourn of foreign nationals’. For the sake of convenience, we will refer to it as the system scope doctrine. The SCJ maintained that even if the activities of a foreign national are constitutional and lawful, the Minister of Justice is by no means hindered from assessing those activities as undesirable in terms of appropriateness for Japan, and from assuming from such activities that this foreign national may act against the interest of Japan, despite the fact that such activities of the foreign national are guaranteed by the Constitution in the above sense.12 This means that foreigners have the freedom of political activity under the Japanese Constitution. They have the freedom to express their views by participating in assemblies as guaranteed under Article 21 of the Constitution.13 However, the Minister can refuse to extend their sojourn if their constitutional and legal activities are against the interest of Japan. If they want to stay in Japan, they should be circumspect in their words and actions. Hence, a different standard applies to foreigners. Therefore, in reality, it is doubtful that freedom of expression is guaranteed for foreigners in Japan under the Constitution. Since then, academia has heavily criticised the system scope doctrine (Obata 2021; Kondo 2021; Izumi 2020). Nevertheless, the SCJ maintained it even after Japan ratified the Refugee Convention in 1981, which required the country to accept refugees and treat them all equally. Many cases were initiated which contested the rights of foreigners but none was successful. The right to vote, social rights, and the right to enter were the most challenged as they apply only to Japanese people because of the nature of their rights (Ashibe 2019, 92–93). The SCJ denied the foreigners’ right to vote in local elections and elections of both houses of the Diet14 and ruled that it was allowed to give priority to its own citizens over foreign residents when providing welfare benefits.15 Invalidating deportation orders in courts is difficult. However, Japan has developed a system to allow foreigners to work in the country without being treated as immigrants. This is because Japan lacks the necessary workforce to support an aging society. One example is the Technical Intern Training Programme (TITP). Strictly speaking, foreigners who enter Japan under the TITP are not classified as workers or immigrants but ‘interns’ who are supposed to learn useful knowledge and skills by training. The period of their stay is limited and they cannot

156  Akiko Ejima bring in their family members. Violations of human rights of interns such as the forcible return of interns, low-paid work, harassment, and discrimination have been reported. This problematic situation is explored in Section 5.

6.3 Constitutional law and international human rights law (1): international oversight of human rights treaty implementation This section focuses on international human rights treaties, specifically how the constitutional system in Japan implements them. It approaches this question from three viewpoints. First, it examines the extent to which Japan engages in international mechanisms that oversee the implementation of human rights treaties. Second, we discuss the role that domestic government actors have played in implementing them pursuant to the country’s constitutional framework. Third, we explore the possibility of a pluralistic, non-hierarchical, and circulatory system for human rights protection by examining specific cases relating to foreigners’ rights. Unlike in other parts of the world, Asia lacks a regional human rights court (Baik 2012; Hsien-Li 2011). As a result, international oversight of human rights implementation in Asia is limited to the UN’s monitoring mechanisms. Such monitoring exists in two ways. The first is the state reporting system, in which each state party regularly (every four to five years) submits a report on its compliance with international human rights standards to UN’s reviewing bodies, namely the UN Human Rights Council and UN treaty bodies. These bodies will issue reports on the state’s human rights records and recommend domestic reforms where necessary. The second mechanism consists of procedures that allow individuals or foreign states to submit complaints, enquiries, or other communications about a human rights violation to the UN treaty bodies. These communications would then trigger a review. These processes, often resembling court proceedings, can be quite meaningful. However, many states choose not to ratify optional treaty protocols that enable individuals to submit communications to the treaty bodies. Moreover, the treaty bodies’ conclusions are not legally binding. Asian countries differ in the extent to which they engage in international human rights treaty monitoring systems. Japan is a good example of a state that has adopted a lukewarm attitude toward international monitoring. It has ratified eight of nine core human rights treaties of the UN: the International Covenant on Civil and Political Rights (CCPR) (1979),16 International Covenant on Economic, Social and Cultural Rights (CESCR) (1979), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (1985), Convention on the Rights of the Child (CRC) (1994), Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1995), Convention against Torture (CAT) (1999), Convention on the Protection of All Persons from Enforced Disappearance (CED) (2009), and Convention on the Rights of Persons with Disabilities (CRPD) (2014). Japan is also subject to the Universal Periodic Review of

Constitutional rights and human rights  157 the UN Human Rights Council. However, it has not ratified any of the treaties’ optional protocols that enable an individual to bring a complaint to the treaty bodies. It has only accepted the enquiry procedure under CAT (Art. 20) and the enquiry procedure under the CED (Art. 33). Concluding observations made by treaty monitoring bodies sometimes receive the attention of the Japanese media, but their impact is limited. The Japanese government has shown an alarming tendency to emphasise that the recommendations of treaty bodies have no legally binding effect.17 It has done so to avoid pursuing legal reforms to comply with human rights treaties. Nonetheless, human rights-based NGOs have been able to pressure the government by submitting shadow reports to UN bodies that challenge its reports. In addition, the Japanese government now often offers NGOs an opportunity to provide their opinion about a government report before it finalises the same for submission to a UN treaty body. It is helpful to compare Japan and other East Asian countries, such as China, South Korea, and Mongolia, in order to assess Japanese attitudes and show diversity in East Asia. China is similar to Japan in terms of ratifying international human rights treaties. It has ratified six core UN human rights treaties, namely: CEDAW (1980), CERD (1981), CAT (1986), CRC (1992), CESCR (2001), and CRPD (2008). China has sought to present itself as a country that protects and promotes human rights. However, it has not ratified any optional protocols for complaints or accepted any enquiry procedures.18 Moreover, China has not only emphasised the non-binding nature of treaty bodies’ concluding observations but it has also been openly critical of the oversight roles performed by treaty bodies and other UN entities (Kinzelbach 2012). Compared with NGOs in Japan and South Korea, civil society actors in China face severe obstacles to asserting pressure on the Chinese government through the UN’s period review processes. In contrast, South Korea has not only ratified seven UN human rights treaties: CERD (1978), CEDAW (1984), CCPR (1990), CESCR (1990), CRC (1991), CAT (1995), and CRPD (2008), but also accepted individual complaints: CCPR-OP-1 (1990), CERD Art. 14 (1997), CEDAW-OP (2006), and CAT Art. 22 (2007). It has also accepted enquiry procedures through CAT Art. 20 (1995) and CEDAW-OP Art. 8-9 (2006). As will be explained, South Korea’s acceptance of individual complaints and enquiry procedures has had a significant impact on domestic actors that implement human rights protections. Mongolia is another East Asian jurisdiction that is similar to South Korea in terms of its position with regard to international monitoring. It has not only ratified seven UN human rights treaties: CERD (1969), CCPR (1974), CESCR (1974), CEDAW (1981), CRC (1990), CAT (2002), CRPD (2009), and CED (2015). Individual complaints have been accepted through CCPR-OP-1 (1991), CEDAW-OP (2002), CRPD-OP (2009), CESCR (2010), and CRC-OP-IC (2015). It has also accepted enquiry procedures through CAT Art.20 (2002), CEDAW-OP Art. 8-9 (2002), CRPD-OP Art. 6-7 (2009), and CRC-OP-IC Art.13 (2015).

158  Akiko Ejima It should be emphasised that no East Asian country or developed country ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.19 The countries that are more likely to accept migrant workers from other countries are not interested in protecting migrant workers and their family members.

6.4 Constitutional law and international human rights law (2): domestic implementation of human rights treaties The domestic implementation of human rights treaties can be carried out or promoted by various domestic public actors, such as legislatures, executive offices, courts, and national human rights institutions. Japan’s legislature, the Diet, has had only a modest impact on the implementation of these treaties. Its most influential moments have been during the ratification of human rights treaties. The government must obtain approval from the Diet (Article 73) for ratification. A good example is the ratification of the CEDAW in 1985. When the Diet approved and ratified the CEDAW, it also passed legislation around the same time to implement it. Specifically, the Diet passed the Act on Securing Equal Opportunity and Treatment between Men and Women in Employment in 1985. It also amended the Nationality Act to make it possible for a child born to a Japanese wife and a foreign husband to obtain Japanese nationality. Formerly only a child born to a foreign wife and a Japanese husband could obtain Japanese nationality. In contrast, when the government ratified CRC, no legislative action was taken to implement it. Learning from this experience, NGOs were more careful not to seek ratification of the CRPD without receiving assurances that the Diet would also adopt substantial legal measures to implement it. As a result, the Diet passed legislation prohibiting discrimination against persons with disabilities when Japan ratified the CRPD in 2014. When Japan considers ratifying a human rights treaty, the executive branch of government has the principal role of examining whether there is any discrepancy between domestic law and the treaty. After ratification, the executive branch is responsible for implementing obligations under the treaty. The implementation of the CEDAW is also a good example here. To facilitate implementation, the government established the Council for Gender Equality and the Gender Equality Bureau at the Cabinet Office in 2001. The Gender Equality Bureau is mandated with the formulation and overall coordination of plans to promote a gender-equal society, including promoting the Basic Plan for Gender Equality and implementing plans for gender-related matters not falling under the jurisdiction of any particular ministry (Gender Equality Bureau Office 2020). However, the executive department’s implementation of CEDAW is not yet satisfactory. Japan ranks 116th among 146 countries in terms of the overall global gender gap index, and 147th in terms of political empowerment (World Economic Forum 2022). The judiciary has also been conservative and passive in its use of international human rights treaties. Lawyers often refer to human rights treaties

Constitutional rights and human rights  159 when there is a treaty provision that would support their argument more clearly than any available domestic law. However, courts have generally been reluctant to accept such citation, except in few instances. Indeed, the SCJ has consistently denied the existence of violations of human rights treaties without much explanation. A good example is a case concerning the right to access the court (Article 32 of the Constitution). The plaintiff was a prisoner who sued a prison warden because of maltreatment by prison officers. He claimed that his right to access the court was denied because the head of the prison curtailed his meeting time with his lawyer, and all his meetings were supervised by a prison officer. The local district court and the high court awarded plaintiff compensation, based in part on the CCPR and persuasive case law of the European Court of Human Rights. However, without any explanation, the SCJ denied that there were violations of the CCPR.20 The SCJ did not refer to international human rights treaties. There are, however, several interesting signs that show that the SCJ may become more comfortable in considering human rights treaties as well as comparative law (see Ejima 2019). In a case where the constitutionality of the Nationality Act was questioned because it denied Japanese nationality to a child born out of wedlock between an unmarried Japanese father and a non-Japanese mother, the SCJ referred to the CCPR and the CRC and legislative trends in other countries.21 In 2013, the SCJ went further by referring to the CCPR and CRC Committees’ recommendations that Japan should amend its Civil Code to eliminate discrimination against children born out of wedlock in terms of inheritance (see Ejima 2015). However, in 2015, when the SCJ evaluated the constitutionality of other clauses in the Civil Code, the majority opinion did not refer to any of the relevant recommendations of the CEDAW Committee.22 It remains to be seen which direction the SCJ will go in the future.23 National human rights institutions (NHRIs) that comply with the Paris Principles are other government actors expected to play a role in the implementation of human rights treaties. Japan has not created an NHRI, even though UN treaty bodies and the UN Human Rights Council repeatedly urge it to do so (HRC 2014, para 7).

6.5 Pluralistic, non-hierarchical and circulatory system for human rights protection This section examines the current interaction between the Japanese government and treaty bodies through state reports and concluding observations of the CCPR on foreigners’ rights. We chose two issues to discuss here. One is the discrimination against Korean residents in Japan, which existed even before World War II, as explained in Section 2. The other is the Technical Intern Training Programme (TITP, ginou jisshu seido 技能実習制度), which has been one of the serious problems concerning migrants, as explained in Section 1.

160  Akiko Ejima 6.5.1  Korean residents in Japan The Human Rights Committee of the CCPR (HRC) has already expressed concern for the continued existence of certain discriminatory practices against Korean permanent residents in 1993 when it examined the third Japanese state report (HRC 1993, para 3). When the HRC examined the fourth report, it again emphasised the discrimination against members of the Korean minority in Japan who are not Japanese citizens, including the non-recognition of Korean schools. It also expressed regret that its recommendations have largely not been implemented (HRC 1998, para 6 and 13). The concern about discriminatory treatment towards Korean schools was repeated in the concluding observation of the fifth report (HRC 2008, para 31). The HRC has expressed ‘concern about the widespread racist discourse against members of minority groups, such as Korean, Chinese, or Burakumin, inciting hatred and discrimination against them, and the insufficient prevention of hate speech in the Criminal and Civil Codes in the sixth concluding observation’ (HRC 2014, para 12). It also expressed concern over the high number of extremist demonstrations and open display in private establishments of discriminatory signs such as those reading ‘Japanese only’ (HRC 2014, para 12). It is interesting to emphasise that the government has been reluctant to legislate an anti-discrimination law in general or an anti-racial discrimination law despite the recommendations by human rights treaty bodies (Ejima 2018, 353). Moreover, constitutional scholars warn against restricting freedom of expression through legislation (Obayashi 2021, 359–361 and Higaki and Nasu 2021, 252). It was not until 2016 that the Hate Speech Elimination Act (HSEA) was enacted.24 Reflecting the cautious attitude of the government and the ruling party, the HSEA was submitted by members of the Diet, not by the Cabinet. Moreover, the HSEA is a kind of soft law or non-regulatory (Higaki and Nasu 2021, 252) because it does not have mechanisms to punish hate speech. The national government shall be responsible for implementing measures for the elimination of unjust discriminatory words and actions against foreigners. It shall also provide advice and other measures necessary to promote the elimination of unjust discriminatory words and actions against foreigners. With regard to measures for the elimination of unfair discriminatory words and actions against foreigners, local governments shall endeavour to take measures in accordance with the circumstances of the relevant region, based on an appropriate division of roles with the national government. Therefore, victims of hate speech cannot receive a direct remedy from the HSEA. Meanwhile, some local governments enacted ordinances that have concrete mechanisms to stop hate speech. Osaka City passed the Osaka City Ordinance concerning Measures against Hate Speech (大阪市ヘイトスピー チへの対処に関する条例) to prohibit hate speech (promulgated on 28 January 2016).25 The ordinance established an independent committee consisting of three law experts (an attorney, a constitutional law scholar, and an

Constitutional rights and human rights  161 international law scholar at present) that can accept an individual complaint by a victim. The committee can investigate the case. If it recognises the existence of hate speech, it has the power to publicise the name of the person who made the hate speech. Kawasaki City also legislated the Kawasaki City Ordinance for a City of Respect for Human Rights without Discrimination (川崎市差別のない人権尊重のまちづくり条例),26 which imposes a fine (up to 500,000 yen) on violators. Moreover, the Tokyo Metropolitan Government adopted the Ordinance aimed at realising the principle of respect for human rights enshrined in the Tokyo Metropolitan Olympic Charter (東京都オリンピック憲章にうたわれる人権尊重の理念の実現を 目指す条例). This includes a provision stipulating the metropolitan government’s endeavour to eliminate unfair discriminatory words and actions according to the HSEA.27 There are immediate effects of the HSEA. On 31 May 2016, Kawasaki City refused to provide permission to use a city park to an organiser who had repeatedly expressed discriminatory offensive remarks toward Korean residents. The Kawasaki District Court also issued a provisional injunction to two organisations to bar them from demonstrating within a radius of 500 metres from the office of the social welfare corporation that supports Korean residents because said organisations had held two previous demonstrations against Korean residents in Japan.28 The City Mayor and Kawasaki District Court referred to the HSEA. Furthermore, on 3 June 2016, the National Police Agency issued a notice to the heads of prefectural police forces regarding the enforcement of the HSEA, taking strict action against hate speeches and related activities.29 Still, some argue for stronger measures, including the penalty, but others appreciate the Japanese soft approach (Higaki and Nasu 2021, 252–253). It is useful to compare how UN bodies evaluate Japanese efforts. The HRC already asked the Japanese government to provide more information concerning the current hate speech cases and expressed its concern that the HSEA cannot directly prohibit hate speech or punish discriminatory actions (HRC 2017, para 6). On the other hand, responding to the list of issues of the HRC, the Japanese government merely provided updates on the current situation. It is time for the HRC and other treaty bodies to evaluate the state of the country through state reporting systems.30 If there is one thing that is clear, it is that the issue of hate speech will be continuously discussed domestically and internationally until they are properly addressed. 6.5.2  The Technical Intern Training Programme The issue on the Technical Intern Training Programme (TITP) first appeared in the fifth concluding observation of the HRC (HRC 2008, para 24), and was repeated in the sixth concluding observation (HRC 2014, para 16). The HRC recommended that the Japanese government ‘replace the present programme with a new scheme that focuses on capacity-building rather than recruiting low-paid labour’. Moreover, the HRC urged the government to ‘increase the number of on-site inspections, establish an independent

162  Akiko Ejima complaint mechanism, and effectively investigate, prosecute, and sanction labour trafficking cases and other labour violations’ (HRC 2014, para 16). Strictly speaking, the recommendation of the HRC is not legally binding. However, the accumulation of recommendations slowly and steadily affects the government and civil society. When victims, related individuals, or NGOs send alternative reports to the HRC, it can forward a list of questions to a country. The government must respond to this question in the periodic report. The HRC then writes its concluding observation, including a request for follow-up, which demands the government to report on selected issues within a year. In the sixth concluding observation, the TITP was selected as one of the four issues and the Japanese government had to submit information concerning the implementation of the HRC’s recommendations in a year (HRC 2014, para 28). Furthermore, the HRC posed detailed questions in a list of issues prior to submission of the seventh periodic report of Japan in 2017. The HRC asked the Japanese government to: (a) provide information on recent measures, including legislative measures, taken to address the violations committed in relation to forcible return of intern trainees and low-paid labour, to expand the prohibition of forced training to training implementing organizations; and to provide for safeguards against reprisals and deportation of trainees who complain of violation of their rights; (b) clarify whether further measures to prevent the recruitment of low-paid intern trainees are being planned; (c) report on measures taken to increase the number of on-site inspections since the adoption of the Committee’s concluding observations in July 2014; (d) indicate what measures have been taken to ensure that the human resources allocated to the Organization for Technical Intern Training and the periodicity of its inspections will enable it to carry out its functions effectively; (e) provide updated information on the number of complaints submitted annually by trainees since the adoption of the concluding observations and on the measures taken to establish a genuinely independent complaint mechanism. (HRC 2017, para 20) These questions are the results of the efforts of NGOs that provide information on the present situation concerning the TITP. Although the Japanese government has provided detailed responses (HRC 2020, para 165–177), it remains to be seen how HRC will evaluate them. In brief, this dialogue between the HRC and the government will never end until the HRC’s concerns are sufficiently addressed. The two examples show that the Constitution of Japan itself has not directly protected the rights of foreigners. The judicial review power has not been useful for foreigners to obtain constitutional remedies. The government has not taken the initiative to spontaneously tackle the problems of hate speech and the living condition of technical interns. It is human rights

Constitutional rights and human rights  163 NGOs and the treaty monitoring bodies that raise concerns. Particularly, the latter has developed a constructive dialogue with the Japanese government. The recommendations in the concluding observation do not have a binding power but the repeated recommendations in the concluding observations strengthen the voice of the victims of the violation of human rights. Moreover, the NGOs are now actively using the state reports procedure by providing an alternative report to the treaty bodies. Their efforts finally changed the passive attitude of the government to enact anti-hate speech law. While many of the problems with technical interns remain unresolved, the existence of the problem has been raised and will not be overlooked as it has been in the past. Therefore, it is now possible to evaluate the current practice of the state reporting procedure as a pluralistic, non-hierarchical, and circulatory process of the state reports (the government). Additionally, concluding observations (the treaty bodies) can be evaluated as a mechanism to protect the human rights of foreigners because none of the actors (the government, treaty bodies and NGOs) has a final say and the issues shall not be forgotten as long as NGOs and treaty bodies continue to raise the question.

Conclusion The Constitution of Japan was a progressive constitution at the time of its drafting. However, it has a serious problem in that important stakeholders such as the former Japanese subjects who lost Japanese citizenship following the Peace Treaty were not represented or protected in it. They had lived under the power and authority of the Japanese government as Japanese subjects and could not escape the burden (such as military service) and/or the predicament of the war. However, they lost their Japanese nationality when Japan regained independence. The constitutional judicial review, which was installed for the first time by the new constitution as a powerful remedial measure against human rights violations, has not been capable of solving the problem. Furthermore, accepting people without an immigration policy leads to the convenient use of people for labour without guaranteeing their human rights. These problems have been exacerbated by the COVID-19 pandemic. It is high time to have a holistic system that combines constitutional and international human rights law, and to re-conceptualise national sovereignty to assert that human rights refer to the rights of everybody, not just the rights of nationals. The present practice of the human rights treaty bodies is useful as an example of the holistic system of human rights.

Notes 1 See official website of the Immigration Services Agency of Japan (www.moj.go.jp/ isa). The agency controls the entry and departure of foreign and Japanese nationals (shutsunyukoku出入国) and manage residency of foreigners (zairyu在留). 2 This is a common definition in Japanese language dictionaries.

164  Akiko Ejima 3 The Constitution of Japan, promulgated on 3 November 1946 and taken into effect on 5 May 1947. 4 Proclamation Defining Terms for Japanese Surrender, Issued, at Potsdam, July 26, 1945. 5 The first draft did not have article numbers. Emphasis is added by the author. 6 Act No. 147 of 1950. 7 ‘Japanese national’ in Article 10 and ‘the people’ in the Title of the Chapter III and Article 14 are represented by the same Japanese word 日本国民 (nihon kokumin) in the official Japanese text. 8 The Treaty No. 5 of 1952. 9 Peace Treaty Article 2 (a) Japan, recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet. (b) Japan renounces all rights, title and claim to Formosa and the Pescadores. 10 The Civil Circular Ko No. 438 issued by the Director of the Civil Affairs Bureau of the Ministry of Justice concerning the Processing of Nationality and Family Registration Affairs of Koreans and Taiwanese upon the Entry into Force of the Peace Treaty 1952年4月19日法務府民事局長通達・民事甲第438号「平和条 約の発効に伴う朝鮮人台湾人等に関する国籍及び戸籍事務の処理について」 11 SCJ, grand bench, Judgment of 4 October 1978, 32 (7) Minshu 1223. 12 SCJ, grand bench, Judgment of 4 October 1978, 32 (7) Minshu 1223, 1233. 13 Article 21 of the Constitution: Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated. 14 SCJ, third bench, Judgment of 28 February 1995, 49(2) Minshu 639. 15 SCJ, grand bench, Judgment of 2 March 1989, 1363 Hanji 68. 16 This number refers to Japan’s year of ratification. 17 On 18 June 2013, in response to a questionnaire submitted by House of Councillors member Tomoko Kami, the Abe Cabinet approved a written response that the recommendations of the Committee Against Torture on the issue of former Japanese comfort women are not legally binding and do not oblige the State party to follow them. House of Councillors, Written Answer by the Cabinet, 18 June 2013, www.sangiin.go.jp/japanese/joho1/kousei/syuisyo/183/toup/ t183118.pdf 18 This approach certainly is not uncommon in East Asia. North Korea has also ratified five UN human rights treaties but has not accepted individual communication or inquiry procedures. It has, however, constantly been under exceptional ad hoc scrutiny of the UN. See, for example, UN Commission on Human Rights, Situation of human rights in the Democratic People’s Republic of Korea, Human Rights Resolution 2005/11. 19 Adopted by General Assembly resolution 45/158 of 18 December 1990. 20 SCJ, first bench, Judgment of 7 September 2000, 199 Shumin 283. 21 SCJ, grand bench, Judgment of 4 June 2008, 62 Minshu 1367. 22 SCJ, grand bench, Judgment of 16 December 2015, 69(8) Minushu 2427 (sixmonth period of prohibition of remarriage imposed only on women) and SCJ, grand bench, Judgment of 16 December 2015, 69(8) Minushu 2586 (the surname system which requires a wife and a husband to adopt the surname of the wife or husband at the time of marriage). 23 In 2021 the SCJ had to deal with the same issue (constitutionality of the surname system). The majority opinion vaguely and negatively referred to the recommendations of the treaty bodies by saying that current changes were not yet decisive enough to change the previous judgment. On the other hand, dissenting opinions thoroughly considered the relevance of international human treaties to argue the unconstitutionality of the Civil Code. SCJ, grand bench, Decision of 23 June 2021, 2501 Hanrei Jiho 3.

Constitutional rights and human rights  165 24 Act No. 68 of 2016. The English translation of the official title of the HSEA is the Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan (本邦外出身者に 対する不当な差別的言動の解消に向けた取組の推進に関する法律). The provisional translation can be seen at the website of the Ministry of Justice. www. moj.go.jp/content/001199550.pdf (visited 17 Jan 2022) 25 The Osaka City Bylaw concerning Measures against Hate Speech. www.city. osaka.lg.jp/shimin/page/0000437100.html 26 The Kawasaki City Ordinance for a City of Respect for Human Rights without Discrimination. www.city.kawasaki.jp/250/page/0000113041.html 27 Due to the COVID-19 pandemic, the Tokyo Olympic and Paralympic Games were held without foreign guests. 28 Yokohama District Court (Kawasaki Branch), Decision of 2 June 2016, 2296 Hanji 14. 29 The National Police Agency, Enforcement of the Law concerning the HSEA (Notice). 3 June 2016. www.npa.go.jp/pdc/notification/keibi/biki/ keibikikaku20160603.pdf (visited 15 Jan 2022). 30 The HRC and other treaty bodies began to sophisticate the whole procedure by sending a list of issues to the States in advance.

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Part III

Human rights and border control

7 From formalist circumvention to substantive fulfilment Taking human and fundamental rights seriously in European migration policy* Frederik von Harbou

Introduction In recent years, debates about human and fundamental rights violations in the context of European migration policy have become omnipresent, including Frontex’s operations in the Mediterranean Sea involving push backs of migrant boats, inhumane conditions in refugee camps—such as the infamous Moria Reception and Identification Centre on the Greek island of Lesbos which burned down in 2020—and the criminalisation of NGO vessels’ crews involved in search and rescue operations. Public debates, however, are also sparked by incidents and structures that are not yet regarded as clear-cut violations of international or European Union (EU) laws but merely display a deep-seated disregard for the essence of human rights on the part of the EU. As legal obligations often rest on formal premises, the criticism in such cases apparently remains ‘political’ rather than ‘legal’: examples include the dubious cooperation agreements and practices with governments and border police forces with transit countries such as Libya and Turkey, or the failure to provide safer alternatives for access to refuge and asylum for migrants (e.g. by issuing humanitarian visas), as thousands drown in the Mediterranean while attempting to cross it. In this chapter, I will argue that, during the last decades, the formalist circumvention of human and fundamental rights obligations has become a key feature of EU migration policy. However, the possibility of such circumvention rests upon an understanding of human rights as ‘rules’ with a narrow scope of application, surrounded by a wide space of discretionary authority. Such a concept is at odds with a more comprehensive view of *  This chapter was written in the context of the 2018–2021 research project REMAP (Human Rights Challenges to European Migration Policy). Many of the arguments presented here were developed together with the co-authors of the REMAP study, Jurgen Bast and Janna Wessels, see Bast/v. Harbou/Wessels, Human Rights Challenges to European Migration Policy. The REMAP Study, 2nd ed., Nomos and Hart, Baden-Baden/ Oxford 2022, available open access at https://doi.org/10.5771/9783748926740.

DOI: 10.4324/9781003102717-11

172  Frederik von Harbou human and fundamental rights both as entitlements of individuals to a certain treatment but also as principles and even as values ‘radiating’ into all branches of law, including the interpretation of any provision of (secondary) EU migration law and establishing positive obligations towards their fulfilment.

7.1 Formalist circumvention as a key feature of European migration policy The formalist circumvention of human and fundamental rights obligations towards migrants is neither a recent phenomenon nor a strategy that is exclusively applied by European states or the EU. The grounds for such an approach can already be found in the most important international treaty in the field, which is the 1951 Geneva Convention Relating to the Status of Refugees. This Convention does not establish a comprehensive legal right to asylum nor does it enforce an obligation on states to actively protect persecuted individuals residing in their homelands. It only requires signatory states to not forcibly return refugees to the country they have fled from once they have entered the territory of the signatory state, the famous principle of non-refoulement (Art. 33 of the 1951 Refugee Convention). As signatory states are thus bound by international law once possible asylum applicants have reached their territory, many of the states have started to expend considerable energy in inventing measures to prevent refugees from accessing their territory or to legally disqualify their claims on formal grounds. Since the end of the Cold War, the implementation of such migration management policies with the purpose of preventing access to asylum can be observed in all ‘Western’ countries from Australia to the European States and the USA. Notable measures used for disincentivising and impeding asylum applications include the introduction or tightening of visa requirements for legally accessing the territory of a given country, together with the introduction of so-called carrier sanctions— under which fines are levied against airlines or other carriers found transporting ‘irregular’ migrants. Other examples are the implementation of ‘safe third country’ and ‘country of first asylum’ concepts, allowing states to refer possible asylum applicants to ‘protection elsewhere’ (Hathaway 2021, 366 et seqq.). On both sides of the Atlantic Ocean, such practices also encompass what are known as ‘push back’ measures: for example, in many cases, boats with irregular migrants on board, bound for the coast of the United States and Italy, were intercepted in international waters by American and Italian naval and coast guard forces respectively, and brought back to their country of departure. While these practices of push-backs were nearly identical, the legal evaluation diverged: in 1993, the US Supreme Court ruled that summarily returning asylum seekers without a hearing to Haiti did not violate the principle of non-refoulement as migrants could not be ‘returned’ in the sense of the 1951 Refugee Convention if they had not yet been ‘within’ the territory of the United States but have been intercepted on the high seas (US

Substantive fulfilment of human rights obligations  173 Supreme Court 1993). In contrast, the European Court of Human Rights (ECtHR), in its 2012 Hirsi-decision, outlawed the Italian practice of pushing back migrants intercepted in international waters to Libya. Such returns would violate the principle of non-refoulement (constituting the prohibition of inhuman or degrading treatment) and the prohibition of collective expulsion as enshrined in Article 3 of the European Convention on Human Rights (ECHR) and Article 4 of Protocol No. 4 to the ECHR. According to the Court, the Convention was applicable to such extraterritorial cases as Italian authorities exercised effective control and authority over asylum seekers on board of their vessels who were thus ‘within their jurisdiction’, as required by Article 1 of ECHR (European Court of Human Rights 2012). While push-backs were thus outlawed in Europe, European governments started to look for alternatives to further prevent migrants from reaching their territories, most notably following a significant rise in refugee numbers since 2015. A development thus set in that was later described as a shift from ‘offshoring’ to ‘outsourcing’ of migration control by the employment of ‘pullbacks’ instead of ‘push-backs’ (Pijenburg 2018, 396). For example, largely informal agreements with countries of transit such as the EU–Turkey ‘statement’ of March 2016 (European Council 2016), as well as massive material and operational support of border patrol and coast guard authorities in other countries of transit such as Libya are meant to prevent migrants from arriving in Europe—if not from departing the countries first. The idea here is to circumvent the applicability of the ECHR by evading formal ‘jurisdiction’ in the sense of actual control over the individual migrant in a given particular case. Regarding cooperation with countries such as Libya, notorious for the inhuman treatment of migrants, convincing legal arguments have already established an international responsibility of the EU or its Member States considering human rights violations by third-country officers, such as Libyan coast guards. This may follow from the application of the International Law Commission’s 2001 Articles on State Responsibility (ASR) and 2011 Articles on the Responsibility of International Organizations (ARIO), both largely reflecting customary international law (Fink 2018; Mungianu 2016). However, as long as such legally sound arguments do not become a decisive part of the framework of an effective human rights system such as the ECHR with the jurisdiction of the ECtHR, formalist circumvention of European human rights obligation by such ‘externalisation’ of migration control may well continue. This lack of accountability is aggravated by what is sometimes described as the process of ‘agencification’ (Verhoest 2018) of EU migration policy. While the mandates of agencies such as EASO (European Asylum Support Office), eu-LISA (EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice) and most notably Frontex (European Border and Coast Guard Agency) have successively been expanded over the last few years, their growing involvement in ‘hybrid’ procedures of decision-making and actions, sometimes involving different EU Member States as well as third countries, further lead to massive blurring of responsibilities. Furthermore, while Frontexs’ internal mechanisms to

174  Frederik von Harbou investigate accusations of human rights violations have proven to be widely futile, access to courts is hindered by considerable legal hurdles (Gkliati and Rosenfeldt 2018; Nicolosi and Fernandez-Rojo 2020, 177). In yet another attempt to prevent effective access to protection on European soil, in 2018 and 2019, a number of European countries bordering the Mediterranean, such as Italy and Malta, closed their ports to the disembarkation of migrants saved at sea by NGO-chartered rescue ships. By the application of such ‘non-disembarkation policies’, rescued migrants on board of NGO ships were often left in limbo for weeks regarding their access to an asylum procedure in the EU (ECRE 2019, 3). In a similar vein, EU Member States tried to prevent humanitarian activists from conducting search and rescue operations by seizing NGO vessels and criminalising their crew members—the latter notably on the basis of the Facilitation Directive (Directive 2002/90/EC), whose wording seems to permit for such an interpretation (Carrera et al. 2018). This already long list of attempts to circumvent the human and fundamental rights of refugees to access protection could be further extended. Making things worse, many refugees living in refugee camps at the European periphery are denied social and economic rights. One does not need much imagination to identify such forms of condoned destitution, as a tool—propagated through images spread in mass media—of deterrence. However, formalist circumvention may have yet reached another stage with the ECtHR’s 2020 decision in the case of N.D. and N.T. vs Spain (European Court of Human Rights 2020). In this Grand Chamber decision, the Court approved the long-standing Spanish practice of so-called ‘hot returns’, or pushing migrants back to Morocco from the border of the Spanish exclave of Melilla. Therefore, the Court had to come up with a new criterion for the assessment of violations of the prohibition of collective expulsions: according to the ECtHR, states may forcibly return migrants who have already entered a state’s territory without providing for an individual procedure, if the state provides ‘genuine and effective access to means of legal entry’ elsewhere. Interestingly, the ECtHR held that, in fact, there are sufficient ways to legally access Spanish territory. Sadly, with such surprising arguments of the Strasbourg Court referring to theoretical alternatives, knowing that these would, in all likelihood, never apply in fact to the claimants, formalist circumvention seems to have transcended the political bag of tricks and has reached the very heart of human rights protection in Europe.

7.2 Rules and principles The aforementioned developments of formalist circumvention rest upon the notion of human and fundamental rights as legal norms with accurately definable premises, similar to the elements of statutory definition. The idea of legal circumvention implies the possibility of clearly differentiating between an ‘inside’ and an ‘outside’ of the scope of application of a given

Substantive fulfilment of human rights obligations  175 norm. The stereotype here may be a provision of tax or of penal law: in both cases, the normative reason for making circumvention possible in the first place is that ‘everything which is not forbidden is allowed’, one of the fundamental principles of liberal societies. This principle, however, is meant to protect the individual from unbound state power and is not meant to be used in the opposite direction by state authorities when dealing with individuals. There is yet another structural reason for why the comparison between individual tax evasion and the circumvention of human rights obligations by EU Member States or the EU itself appears odd. This is because of the fundamental difference between ‘rules’ and ‘principles’, as already described decades ago by Ronald Dworkin and Robert Alexy in their seminal contributions to legal philosophy (Dworkin 1977; Alexy 2002). Rules – such as a tax provision defining a certain VAT rate for the purchase of particular goods – have a fairly identifiable scope of application and are thus thought to ‘apply in an all-or nothing fashion’ (Dworkin 1967, 25). Principles, on the contrary, may best be described as ‘optimisation requirements’, requiring a balance with other principles and positing an ‘ideal ought’ similar to statements of value (Alexy 2002, 42; Alexy 2017). While human and fundamental rights can have the function of rules depending on the specific right (e.g. the prohibition of torture) and context, they are invoked and treated as principles most times. This is particularly true for fundamental rights—whether in a national or supranational legal system—which in virtually all cases have to be balanced with other rights and public interests in a given society. Few would argue that fundamental rights such as freedom of assembly, speech, or ownership should apply absolutely, irrespective of the rights of other persons (e.g. right to privacy or health) and public interests (e.g. public health or safety) they may affect. Instead, what is mostly required when examining a possible violation of human or fundamental rights is a careful balancing of different rights and public interests, which all demand optimisation. This is precisely what the ECtHR does when examining violations of the ECHR as well as the Court of Justice of the European Union (CJEU) when interpreting the Charter of Fundamental Rights of the European Union (CFR). The ECtHR and the CJEU—by applying a test of proportionality before reaching a conclusion in a given case, regarding whether a fundamental right was violated or not—in a similar vein to the Federal Constitutional Court (Bundesverfassungsgericht) in Germany, at least implicitly acknowledge that human and fundamental rights are in general to be treated as principles rather than as rules.1 However, how would one circumvent a principle?

7.3 Fundamental rights as ‘objective order of values’? This is not the entire picture. Understood as principles, human and fundamental rights do not only form the basis of liberties and other entitlements of individuals towards the state or a supranational entity like the EU. Although this role as both negative and positive individual rights continues to be their

176  Frederik von Harbou primary function, they also express the most fundamental values the members of a given legal order do share – or at least promise each other to uphold in the future. With Habermas, values may be defined as ‘intersubjectively shared preferences’ (Habermas 1996, 255). These are ends deemed worth pursuing and are therefore operating on an even more fundamental (aspirational rather than operational) level than principles (Williams 2009). Interestingly, in what may have been its most important decision, the Bundesverfassungsgericht in its 1958 ‘Lüth’ judgement already proposed a view of fundamental rights (of the German Basic Law) as constituting an ‘objective order of values’ (objektive Wertordnung) instead of a mere set of ‘defensive rights of the individual against the state’ (German Federal Constitutional Court 1958). While the term ‘objective’ in conjunction with ‘values’ may seem odd today, due to it evoking strongly metaphysical connotations, this would be a misinterpretation of the judgement. Although the theory of ‘material ethics of value’ by Max Scheler and Nicolai Hartmann (Scheler 1921; Hartmann 1925) were influential in post-war Germany and may have contributed to the readiness of the judges to employ a rhetoric of ‘values’, the actual philosophical premises of the argument were far less contentious. Instead of suggesting any objective reality or hierarchy of values in the tradition of Scheler and Hartmann, the idea of an objective order of values established by the fundamental rights of the Basic Law drew on the tradition of thinking around the concept of Geisteswissenschaften, going back to the work of Wilhelm Dilthey, Eduard Spanger, Theodor Litt, and, ultimately, Georg Wilhelm Friedrich Hegel (Rennert 2014). While all values (as subjective value decisions) originate from individuals, they get an ‘objective’ dimension in so far as they shape concrete historical communities and institutions: this is Hegel’s famous ‘objective spirit’ (objektiver Geist). By living together for a certain period of time in a particular society and state, people form an ‘objectified community of culture and value’ (Rennert 2014). This is also the tradition in which the Weimar era constitutional lawyer Rudolf Smend paved the way for the later decision of the German Federal Constitutional Court. In his seminal 1928 ‘Verfassung und Verfassungsrecht’ (Constitution and Constitutional Law), Smend asserted that the fundamental rights enshrined in the 1919 Weimar Constitution were to be understood at the same time as the ‘concretion of general values in the specific context of a nation’ and meant ‘to set up a system of values, goods or culture’ (Smend 1928, 163). They can thus be regarded both as manifestations of a certain cultural consensus but also in their functional role as important elements for the ‘integration of the people’ (Smend 1928, 163; for an English introduction into the work of Smend cf. Landecker 1950)—or for social cohesion, as one would probably put it today. Correspondingly, the German Federal Constitutional Court employed the term of an ‘objective order of values’ simply to refer to the fact that the fundamental rights in a given constitution reflect certain interpersonally shared beliefs and basic norms agreed upon in a society with a particular legal order.

Substantive fulfilment of human rights obligations  177 While the Federal Constitutional Court in the 1958 Lüth decision did not directly refer to Smend, it is widely acknowledged that it was decisively inspired by his thoughts (Rennert 2014). Another important source of inspiration was an article published by the constitutional lawyer Günter Dürig just two years prior (Dürig 1956; Grimm 2012, 25). In 1956, Dürig argued that the German Basic Law of 1949 turned the previously only moral value of human dignity into a legal concept and tried to unfold its meaning for the German legal order. According to Dürig, the guarantee to protect human dignity, as enshrined in Article 1(1) of the Basic Law implies that the state not only refrains from violating the fundamental rights of citizens by treating them as ‘mere objects’ or—in Kant’s words—as means to certain ends, but actively protects its citizens’ ‘claims to respect’ against threats from other actors including other individuals and foreign states (Dürig 1956). In accordance with this line of thinking, the German Federal Constitutional Court, in Lüth, argued that the fundamental values expressed by the Basic Law have to be respected in ‘all areas of law’: the value decision in favour of fundamental rights, as expressed in the German Constitution, is thought to ‘radiate’ into all parts of the legal system so that even private law provisions have to be interpreted ‘in light’ of constitutional rights.2 Consequently, fundamental rights became ‘guidelines’ for the interpretation of all parts of the German legal system, even more so as the principle of interpretation of statutory law ‘in conformity with the Constitution’ (verfassungskonforme Auslegung) gained importance over time (Vosskuhle 2000). This does not mean that the new understanding of fundamental rights as expressing and constituting an objective order of values was uncontested. To the contrary, it has ever since sparked harsh criticism in legal discourse, most famously by what is known as the ‘Schmitt school’ of German constitutional theory—notoriously opposed to what is known as the ‘Smend school’ (Hwang 2013). In his 1960 essay ‘The Tyranny of Values’, Carl Schmitt3 criticised the interpretation of fundamental rights as ‘values’ as dangerously misleading. According to Schmitt, ‘the logic of values is inherently aggressive’ (Schmitt 2020, 25 et seq., 43). In his view, values are set by purely subjective acts of individuals, based on drives and instinctive, irrational forces. As they are not possessed of a substantive reality beyond their inherent claim to validity, everyone who invokes values is likely to try everything to make them become real and enforce them. Schmitt thinks that this leads to an ‘eternal battle’, a Hobbesian bellum omnium contra omnes as people start conflicts in order to impose their values upon one another. To him, insisting on values ‘keeps enmity awake’ (Schmitt 2020, 39–47). However, it remains unclear whether Schmitt’s criticism is valid, as his understanding of values as merely subjective and irrational settings diverges to a large extent from the Hegelian understanding of values as objectified by history, culture, and institutions— employed by Smend as well as the Federal Constitutional Court. Further criticism was formulated by Schmitt’s disciples, notably by Ernst Forsthoff (Forsthoff 1959, 35) (among other things on methodological

178  Frederik von Harbou problems of interpretation) and, arguably most comprehensively, by ErnstWolfgang Böckenförde (Böckenförde 1974, 1529; 2019, 67; 1990). The latter warned that the reference to values could undermine the rule of law as it empowers constitutional judges to replace accurate legal argumentation with (sometimes short-lived) personal value judgement and the mere interpretation of the law as it stands with the actual creation of new law (Böckenförde 1974, 1529; 1990, 22). According to Böckenförde, the resulting massive shift of power from the Parliament to the Constitutional Court affects the basic structure of a (democratic) state and may not be justified by a vague reference to (assumed) ‘values’, as happened in the Lüth judgement (Böckenförde 2019, 88). One should clearly differentiate between the classical liberal understanding of the Constitution as giving a mere ‘frame’ (Rahmenordnung) for individuals and civil society as well as an understanding of the Constitution as a ‘foundational order’ (Grundordnung), encompassing objective norms ‘radiating’ into all parts of the law, as implied by Lüth. The former understanding as Rahmenordnung essentially limits the function of fundamental rights to negative rights, protecting the individual (e.g. as a member of a minority) from violations by the state. It upholds a rather sharp separation not only of the state and (civil) society but also of public law and other areas of the law, such as private law (Böckenförde 1990, 30 et seq.). Clearly, Böckenförde would have preferred if the Federal Constitutional Court would have opted for such an understanding of the Basic Law. However, at least in his later works, he seems to have acknowledged that the conception of the German Constitution as Grundordnung ever since Lüth could hardly be reversed. This seems to be an accurate observation. While even members of the ‘Smend school’, such as Constitutional lawyer Konrad Hesse (Hesse 1999, 135), seemed increasingly uncomfortable with employing the rhetoric of ‘values’, they deviated to describing ‘objective elements’ or ‘objective dimensions’ of fundamental rights. The validity of the underlying assumptions of such ‘objective’ functions of fundamental rights was less and less questioned as the concept was contoured by a flourishing jurisprudence of the Federal Constitutional Court, deciding that fundamental rights may, for example, form the basis of the state’s duty to intervene to protect its citizens from other individuals or for positive claims against the state to receive certain state benefits (Grimm 2015, 23 et seq.; Dolderer 2000). Whether justified or not in the first place, the objective dimension of fundamental rights became a legal reality in Germany.

7.4 Do the ECHR and the EU-CFR constitute ‘objective orders of values’? Is it now possible to convey the idea of an ‘objective order of values’ to the European level, notably the 1950/53 European Convention on Human Rights and the 2000/09 Charter of Fundamental Rights of the European Union?

Substantive fulfilment of human rights obligations  179 Scholary sources on the matter are scarce and – unsurprisingly – are mostly written in German (Badenhop 2010, 411–20; Ehlers 2015, 48, 263, 536; Hentschel-Bednorz 2012, 273; Holoubek 1997, 139; Wahl 2004). Both the questions—the status of the ECHR on the one hand and of the EU fundamental rights on the other—are usually treated separately, and there are good reasons to do so. Starting with the ECHR, it is hard to deny the special significance of this Convention for the self-understanding of Europe since the second half of the twentieth century. It has not only served as a guiding star for the transformation of post-totalitarian countries into liberal democracies but also gained a unique normative force by virtue of the individual complaint mechanisms in front of the Strasbourg European Court of Human Rights, which arguably is the most effective international human rights court. From this perspective, one may be inclined to consider the human rights enshrined in the ECHR as expressing and/or setting up an ‘objective order of values’ in the sense described above. Could not the substance of the Convention rights—from the prohibition of torture in Article 3 and the right to a fair trial in Article 6, to the freedom of religion and of expression in Articles 9-10 ECHR—be read as a declaration of European values in a nutshell, a ‘European public order’ or ‘Constitution’ (Hentschel-Bednorz 2012, 273)? However, if one considers institutional questions beyond the Strasbourg Court, the differences between the order established by the Basic Law and that by the ECHR become apparent. Far from becoming a comprehensive political entity, the Council of Europe rather appears to be an important forum for cooperation and coordination between (sovereign) European states, agreeing on a clearly fragmentary set of legal norms. This—as well as a certain heterogeneity and unpredictability of the case-law of the European Court of Human Rights—may justify to qualify the order established by the ECHR as merely setting a frame, a Rahmenordnung, particularly for the protection of members of minorities, instead of constituting a Grundordnung or foundational order, as Böckenförde would have said (Holoubek 1997, 139; Badenhop 2010, 411–20). This impression may even be supported if one approaches the topic from the other side and first looks at the outcome of the objective value orderdoctrine of the Federal Constitutional Court, namely the justification of positive duties of a political entity (the German state): for example, to adequately try to protect its citizens (from certain dangers to their physical well-being) or to grant them certain benefits (for example, social security). For institutional reasons, this would go far beyond what you could expect of the European Council, as its architecture today is far from any state-like comprehensive set of institutions. As to the examples just mentioned, it is clear that the Council of Europe neither (directly) possesses police forces to ensure the security of the people residing in the signatory states nor the adequate funds to grant these citizens considerable social security. Thus, from that perspective, the assumption of an ‘objective order of values’ constituted by the ECHR would also be nearly void, as it is difficult to see how it could have any practical consequences (Wahl 2004).

180  Frederik von Harbou Things may look very different, however, regarding the European Union, particularly the EU-CFR. Unlike the Council of Europe, the EU forms a supranational political entity that at least strives to ultimately set up a comprehensive legal order for its citizens—notwithstanding the principle of subsidiarity that also applies, for example, in the relation of a federal state towards regional states. The EU also administrates significantly more funds and possesses a growing administrative body with an array of measures to enforce compliance with the decisions taken at the EU level, such as by the European Commission or the CJEU. Partly mirroring but also extending provisions of the ECHR, the EU-CFR enshrines a progressive (e.g. Article 41 EU-CFR, the right to a good administration) set of fundamental rights with increasing importance as the jurisprudence of the CJEU develops. The interpretation of every piece of secondary EU legislation as well as any action of the EU’s bodies or agents, to be in conformity with European law, must be in accordance with the EU-CFR (Ehlers 2015, 536). Still, the EU pledges conformity with the ECHR, which it also promises to accede one day (cf. Art. 6 (2) and (3) Treaty on European Union (TEU)). References in the treaties to the importance of the EU-CFR (such as Article 6 (1) TEU) and to the ECHR in Article 52 (3) and Article 53 EU-CFR further show their importance for the legal order established by the EU. If there is something like an EU ‘objective order of values’, it clearly consists of the conjunction of the EU-CFR and the ECHR. One could say that the ECHR contributed its substance or spirit, while the EU guaranteed the structure. However, is it legitimate to simply convey the concept taken from a Member States and apply it to the Union level? In fact, the EU has arguably even more explicitly committed itself to fundamental and human rights as ‘values’ than Germany ever did in its Basic Law. Article 2 of TEU very clearly lays down the founding ‘values’ of the European Union, adopting the wording of Article I(2) of the Treaty establishing a Constitution for Europe: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States … Although the exact status of the founding values remains contested until today, a more intensive debate about their relevance has just begun, sparked by the rule of law (and fundamental rights) crisis in Hungary, Poland, and other Member States (von Bogdandy et al. 2021; Williams 2009). Here, it becomes obvious that despite existing measures, there is a ‘critical need for a mechanism to protect EU values’ (European Parliament 2020). While the European Parliament here referred to the rule of law, the same rationale should also apply when other values such as human rights are in danger. As such, one may be disappointed that the Regulation (EU) 2020/2092 of 16 December 2020 on a general regime of conditionality for the

Substantive fulfilment of human rights obligations  181 protection of the Union budget – despite its name – only allows for budget cuts in cases of alleged breaches of the rule of law by Member States, not for instance in cases of systemic violations of refugees’ human or fundamental rights. One reason for this may be that not only the Member States but also the EU itself increasingly endangers the protection and fulfilment of migrants’ rights as the EU becomes an increasingly powerful player in terms of migration. In the past decades, decision-making powers in migration and asylum law have continuously been transferred from the Member State to the EU level. This affects legislative powers (think of the ongoing CEAS reform process which, if successful, shall further harmonise the European asylum system) as well as the administration and execution of legal provisions. A prominent example of the latter is the ongoing and considerable extension of powers of the EU agencies Frontex and EASO. Thus, interestingly, while important powers are shifted from the Member State to the EU level, not applying the concept of an ‘objective order of values’ to the EU would actually result in a reduction in the level of fundamental rights protection (namely regarding the objective dimensions mentioned above). Applying the concept at the EU level is, therefore, comparable to compensating for the loss suffered by consumers due to inflation by raising their salary. One could argue that similar duties as those described in this article as following from the objective order of values-doctrine are referred to when the three kinds of obligations under international law to ‘respect’, ‘protect’, and ‘fulfil’ human rights are invoked. However, while appeals to these obligations have in the past been notoriously vague and rather ineffective, the concept of an ‘objective order of values’ has proven to be fairly powerful, as it is not only applied to but also shapes the concrete and overall functioning legal order in Germany since more than half a century. Admittedly, its potential for the supranational level of the EU has yet to be fully explored.

Conclusions: some consequences for EU migration policy The many ways in which European migration policies attempt to circumvent human rights obligations, as described in the first section of this article, are fundamentally at odds with the more complex understanding of human and fundamental rights we have just tried to unfold. Taking human and fundamental rights seriously would in fact require a complete turnaround of European migration policy. Rather than trying to find the hindmost loopholes to human rights obligations in acts of secondary EU legislation such as the Facilitation Directive in the context of criminalisation of humanitarian activists, EU Member States, and the EU itself would have to engage in a comprehensive and substantive fulfilment of the essence of human rights obligations. It should be noted that this is not merely a political postulation but a legal argument based on the assumption that human and fundamental rights constitute legal principles and are part of an ‘objective order of values’, laid down in primary EU law.

182  Frederik von Harbou However, how would a European migration policy in good faith and conscient of its commitment to human and fundamental rights look like? While a detailed account would go far beyond the scope of the article (cf. instead Bast/von Harbou/Wessels 2022), some consequences seem to be clear: taking human and fundamental rights such as the principle of non-refoulement (inferred from Article 3 ECHR), the prohibition of collective expulsion (Article 4 of Protocol No. 4 to the ECHR), the right to asylum (Article 18 CFR) seriously would necessitate an immediate end of any support for border and coast guards of third countries such as Libya, and would set strict limits on future cases of international cooperation in matters of migration control. Genuine respect for the rights to good administration and to an effective remedy (Article 41 and 47 EU-CFR) would also require fundamental reform of the Frontex structure, establishing effective procedures to hold the agency and the EU itself accountable for alleged human and fundamental rights violations such as the involvement in push-back operations in the Mediterranean Sea. The actual implementation of the Union’s proclaimed commitment to human dignity (Article 1 CFR, Article 2 TEU) would clearly prohibit the toleration (let alone the instrumentalisation) of inhuman conditions in refugee camps on European soil with the result (if not objective) of creating shocking (and thus deterring) images. However, the most important challenge for European migration law and policy is to establish safe and legal pathways for migrants to reach international protection in Europe, making the enormous loss of life in the Mediterranean and on other parts of migration routes largely a thing of the past. An impressive example of how fundamental rights enshrined in the CFR could guide the interpretation of secondary EU law (in the case of the EU Visa Code (Regulation 810/2009) and lead to a legal duty to issue humanitarian visas was presented in 2017 by Paolo Mengozzi, Advocate General at the CJEU, in a case concerning a Syrian family who had applied for visas to seek international protection in Belgium (Mengozzi 2017). While the CJEU did not follow his opinion and dismissed the case on formal grounds (Court of Justice of the European Union 2017), the issue can not only be treated as a question of judicial interpretation but arguably even more as one of European legislation. Based on considerations of human and fundamental rights, the European Parliament has urged the introduction of an EU-wide humanitarian visa scheme (European Parliament 2018; Moreno-Lax 2018, 69). Indeed, the EU needs to refrain from further attempts of circumvention and instead take positive action to actually live up to its own commitments to the protection and fulfilment of human and fundamental rights.

Notes 1 Nota bene, balancing does not take place in the rather rare cases when an absolute right is affected such as Article 3 ECHR (prohibition of torture) or Article 1.1 Grundgesetz (human dignity).

Substantive fulfilment of human rights obligations  183 2 These considerations prepared the ground for the central assertion (or invention) of the ‘Lüth’ decision, namely that fundamental rights may also have horizontal effect (Drittwirkung) and may thus play a certain role in the relationship of two private law subjects, cf. BVerfGE 39, 1—Lüth). 3 On the difficult question of whether and how to cite Carl Schmitt cf. Weiler 2021, I here follow Weiler’s recommendation by pointing out Schmitt’s role as an enthusiastic member of the Nazi Party and ‘Kronjurist’ of the Third Reich (on details cf. e.g.: Kodalle 2019; Mehring 2018; Rüthers 1990). Although the work referenced here was published 15 years after the end of World War II, it should be noted, as Weiler does, that Schmitt apparently never uttered a word of remorse for his Nazi past. I’m grateful to my colleague Stefan Schlegel (Bern) for directing my attention to Weiler’s text.

Bibliography Alexy, Robert. 2002. A Theory of Constitutional Rights. Oxford: Oxford University Press. Alexy, Robert. 2017. ‘Ideales Sollen und Optimierung.’ In Rechtsstaatliches Strafrecht: Festschrift für Ulfrid Neumann zum 70. Geburtstag, edited by O. Isfen, Y.-W. Kim, S. Liu, C. Mylonopoulos, F. Saliger, J. Tavare, K. Yamanaka and Y. Zheng. Heidelberg: C.F. Müller, pp. 17–30. Badenhop, Johannes. 2010. Normtheoretische Grundlagen der Europäischen Menschenrechtskonvention. Baden-Baden: Nomos. Bast, Jürgen, V. Harbou Frederik, and Wessels, Janna. 2022. Human Rights Challenges to European Migration Policy. The REMAP Study. 2nd. ed., BadenBaden and Oxford: Nomos and Hart. Available open access at https://doi. org/10.5771/9783748926740. Böckenförde, Ernst-Wolfgang. 1974. ‘Grundrechtstheorie und Grundrechtsinterpretation.’ Neue Juristische Wochenschrift, 27: 1529–1538. Böckenförde, Ernst-Wolfgang. 1990. ‘Grundrechte als Grundsatznormen. Zur gegenwärtigen Lage der Grundrechtsdogmatik.’ Der Staat 2 (1): 1–31. Böckenförde, Ernst-Wolfgang. 2019. ‘Zur Kritik der Wertbegründung des Rechts.’ In: Recht, Staat, Freiheit, 7th. ed., Berlin: Suhrkamp, pp. 67–91. Carrera, Sergio et al. 2018. Fit for Purpose? The Facilitation Directive and the Criminalisation of Humanitarian Assistance to Irregular Migrants: 2018 Update. w w w. e u r o p a r l . e u r o p a . e u / R e g D a t a / e t u d e s / S T U D / 2 0 1 8 / 6 0 8 8 3 8 / IPOL_STU(2018)608838_EN.pdf. Court of Justice of the European Union. 2017. X & X v. Belgium, Case C-638/16PPU (EU:C:2017:173), 07.03.2017. Dolderer, Michael. 2000. Objektive Grundrechtsgehalte. Berlin: Duncker & Humblot. Dürig, Günter. 1956. ‘Der Grundrechtssatz von der Menschenwürde: Entwurf eines praktikablen Wertsystems der Grundrechte aus Art. 1 Abs. I in Verbindung mit Art. 19 Abs. II des Grundgesetzes.’ Archiv des öffentlichen Rechts 81 (2): 117–157. Dworkin, Ronald. 1967. ‘The Model of Rules.‘ University of Chicago Law Review 35 (1):14–46. Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge: Harvard University Press. Ehlers, Dirk. 2015. Europäische Grundrechte und Grundfreiheiten. Berlin: De Gruyter.

184  Frederik von Harbou European Council. 2016. EU-Turkey Statement. www.consilium.europa.eu/en/ press/press-releases/2016/03/18/eu-turkey-statement/. European Council on Refugees and Exiles. 2019. Relying on Relocation. www.ecre. org/wp-content/uploads/2019/01/Policy-Papers-06.pdf. European Court of Human Rights. 2012. (Grand Chamber) Hirsi Jamaa et al. v. Italy, no. 27765/09, 23.02.2012. European Court of Human Rights. 2020. (Grand Chamber) N.D. and N.T. v. Spain, no. 8675/15 and 8697/15, 13.02.2020. European Parliament. 2018. Resolution 2018/2271(INL) of 11 December 2018 with recommendations to the Commission on Humanitarian Visas. www.europarl.europa. eu/doceo/document/TA-8-2018-0494_EN.pdf. European Parliament. 2020. EU Values in Hungary and Poland: Debate on Recent Developments. www.europarl.europa.eu/news/en/press-room/20201126IPR92511/ eu-values-in-hungary-and-poland-debate-on-recent-developments. Fink, Melanie. 2018. Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law. New York: Oxford University Press. Forsthoff, Ernst. 1959. ‘Die Umbildung des Verfassungsgesetzes.’ In: Festschrift für Carl Schmitt, edited by H. Barion, E. Forsthoff, and W. Weber. Berlin: Duncker & Humblot, pp. 36–62. German Federal Constitutional Court. 1958. BVerfGE 39,1—Lüth, no. 1 BvR 400/51. 15. January 1958 (English translation: German Law Archive. 1999, https://germanlawarchive.iuscomp.org/?p=51). Gkliati, Mariana and Herbert Rosenfeldt. 2018. Accountability of the European Border and Coast Guard Agency: Recent Developments, Legal Standards and Existing Mechanisms. https://sas-space.sas.ac.uk/9187/. Grimm, Dieter. 2012. Rechtsphilosophie nach 1945. Zur Geistesgeschichte der Bundesrepublik Deutschland. Berlin: Duncker & Humblodt. Grimm, Dieter. 2015. ‘The Role of fundamental Rights after Sixty-Five Years of Constitutional Jurisprudence in Germany.’ International Journal of Constitutional Law 13 (1): 9–29. Habermas, Jürgen. 1996. Between Facts and Norms. Cambridge: Polity Press. Hartmann, Nicolai. 1925. Ethik. Berlin/Leipzig: de Gruyter. Hathaway, James. 2021. The Rights of Refugees under International Law. 2nd ed. Cambridge: Cambridge University Press. Hentschel-Bednorz, Meike. 2012. Derzeitige Rolle und zukünftige Perspektive des EuGH im Mehrebenensystem des Grundrechtsschutzes in Europa. Köln: Carl Heymanns Verlag. Hesse, Konrad. 1999. Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland. Heidelberg: C.F. Müller. Holoubek, Michael. 1997. Grundrechtliche Gewährleistungspflichten: Ein Beitrag zu einer allgemeinen Grundrechtsdogmatik. Wien/New York: Springer. Hwang, Shu-Perng. 2013. ‘Materialisierung durch Entmaterialisierung. Zur Kritik der Schmitt-Schule am wertorientierten Grundrechtsverständnis unter dem GG.’ Der Staat 52(2): 219–244. Kodalle, Klaus-Michael. 2019. ‘Carl Schmitt und seine Schuld. Im Spannungsfeld von Reuelosigkeit, gelebter Nachsicht und politischer Ächtung.’ Der Staat 58 (2): 171–193. Landecker, Werner. 1950. ‘Smend's Theory of Integration.‘ Social Forces. 29 (1): 39–48.

Substantive fulfilment of human rights obligations  185 Mehring, Reinhard (ed.). 2018. Vom Umgang mit Carl Schmitt. Die Forschungsdynamik der letzten Epoche im Rezensionsspiegel. Baden-Baden: Nomos. Mengozzi, Paolo. 2017. Opinion of Advocate General Mengozzi. X & X v. Belgium, Case C-638/16 PPU (EU:C:2017:93). Moreno-Lax, Violeta. 2018. The Added Value of EU Legislation on Humanitarian Visas: Legal Aspects. www.europarl.europa.eu/RegData/etudes/STUD/2018/ 621823/EPRS_STU%282018%29621823_EN.pdf. Mungianu, Roberta. 2016. Frontex and Non-Refoulement: The International Responsibility of the EU. New York: Cambridge University Press. Nicolosi, Salvatore and David Fernandez-Rojo. 2020. ‘Out of Control? The Case of the European Asylum Support Office.’ In: Controlling EU Agencies: The Rule of Law in a Multijurisdictional Legal Order, edited by M. Scholten and A. Brenninkmeijer. Cheltenham: Edward Elgar Publishing, pp. 177–195. Pijnenburg, Annick. 2018. ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ European Journal of Migration and Law, (EJML) 20: 396–426. Rennert, Dominik. 2014. ‘Die verdrängte Werttheorie und ihre Historisierung. Zu “Lüth” und den Eigenheiten bundesrepublikanischer Grundrechtstheorie.’ Der Staat 53 (1): 31–59. Rüthers, Bernd. 1990. ‘Carl Schmitt im Dritten Reich. Wissenschaft als ZeitgeistVerstärkung?’ Politische Vierteljahresschrift 31: 512–513. Scheler, Max. 1921 Der Formalismus in der Ethik und die materiale Wertethik. Neuer Versuch der Grundlegung eines ethischen Personalismus. 2nd ed. Freiburg I. Br./Halle A. D. Saale: Verlag von Max Niemeyer. Schmitt, Carl. 2020. Die Tyrannei der Werte. Berlin: Duncker & Humblot. Smend, Rudolf. 1928. Verfassung und Verfassungsrecht. München/Leipzig: Duncker & Humblot. United States Supreme Court. 1993 Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian Centers Council, Inc. 509 U.S. 155, 113 S. Ct. 2549; 125 L. Ed. 2d 128; 1993 U.S. LEXIS 4247. Verhoest, Koen. 2018. ‘Agencification in Europe.’ In The Palgrave Handbook of Public Administration and Management in Europe, edited by E. Ongaro and S. van Thiel, London: Palgrave Macmillan, pp. 327–346. von Bogdandy, Armin, Piotr Bogdanowicz, Iris Canor, Christoph Grabenwarter, Christoph, Maciej Taborowski, and Matthias Schmidt. 2021. Defending Checks and Balances in EU Member States. Berlin: Springer. Vosskuhle, Andreas. 2000. ‘Theorie und Praxis der verfassungskonformen Auslegung von Gesetzen durch Fachgerichte—Kritische Bestandsaufnahme und Versuch einer Neubestimmung.’ Archiv des öffentlichen Rechts 125 (2): 177–201. Wahl, Rainer. 2004. ‘Die objektiv-rechtliche Dimension der Grundrechte im internationalen Vergleich.’ In Handbuch der Grundrechte in Deutschland und Europa: Band I: Entwicklung und Grundlagen, edited by D. Merten and H.-J. Papier. Heidelberg: C.F. Müller, pp. 745–782. Weiler, Joseph. 2021. ‘Cancelling Carl Schmitt?’ European Journal of International Law, EJIL Talk, 13 August 2021, www.ejiltalk.org/cancelling-carl-schmitt/. Williams, Andrew. 2009. ‘Taking Values Seriously: Towards a Philosophy of EU Law.’ Oxford Journal of Legal Studies 29 (3): 549–577.

8 Does international human rights protection trigger a Copernican revolution for immigration law? Stefan Schlegel

Introduction What happens to immigration law if you insert human rights into it, an ingredient that was not planned to be mixed in at the outset (Paz 2016, 10; Gavison 2010, 26–27)?1 This question is a narrowed down version of the overarching question that concerns this book, the question of whether national sovereignty and human rights are compatible. If national sovereignty hinges on the possibility of controlling who is and who is not a part of the nation, it has to depend on an immigration law that is, at least to some degree, exclusionary and discriminatory (Soysal 2007, 7). The question to what extent such an immigration law is compatible with human rights then entails the second question, namely what happens when human rights are introduced into this field of law (see Hollifield 2004, 901)? This chapter argues that the intrusion of human rights into immigration law inevitably leads to a slow-onset revolution. I develop the idea that the revolution thus triggered is a Copernican Revolution, one that has the potential to eventually move everything upside down, and to bring the periphery to the centre. Immigration law was initially constructed around the interests of the receiving states, their striving for law and order, and the needs of powerful pressure groups within the receiving states (such as employers in specific industries) (see Thym 2008, 108). Immigrants were objects, not the subjects of this regulatory field. If immigration law did regulate relationships with agents outside the nation, it was relationships with the immigrants’ country of origin, and not the immigrants themselves (Bast 2011, 86; Kälin 1998, 8). It took a long time for human rights to gain a foothold within immigration law. When human rights eventually started to influence the periphery of immigration law, this set off a complex and chaotic dynamic of pushes and pulls of incompatible perspectives on immigration law, a dynamic that turned out to be emancipatory in its net effect. The term ‘emancipatory dynamic’, which will be used throughout this chapter, stems from the perception that justiciable rights towards a state are the main currency of emancipation. It is the currency that guarantees a degree of individual security and autonomy. Therefore, an emancipatory development signifies a development in which either a growing number of DOI: 10.4324/9781003102717-12

Copernican revolution for immigration law  187 people obtain a right towards a state and/or a development towards a growing number of situations in which people have a right towards a state. This development amounts to a dynamic, wherein the acquisition of a right by one group of people and/or in one situation enhances the pressure to grant a right to other groups and/or for other situations. Thus, the concept of a dynamic, as used here, has connotations of a path dependency. The further the path of human rights is travelled on, the higher the cost to reverse the dynamic. In this chapter, I argue that this chaotic and emancipatory dynamic is the most characteristic trait of the current immigration law. Furthermore, I argue that immigration law can only be understood by analysing it as a battlefield for a slow-onset revolution, as a field of law that struggles with a dynamic and revolutionary ingredient it can neither shake off nor properly integrate. This argument is developed in four steps. The first section introduces the concept of a Copernican Revolution in law and traces the use of this concept in immigration law. It relates the concept to the idea of a ‘human rights revolution’, as opposed to a management approach to migration. The second section traces the revolutionary potential of human rights jurisprudence in immigration law. It demonstrates how human rights unfold—once their applicability trickles into immigration law—as an emancipatory dynamic (for migrants). This dynamic is bound to eventually overthrow the discriminatory core tenet of immigration law, and therefore, is sure to be met with resistance. The third section analyses these waves of resistance in legislation, administration, and jurisprudence. It demonstrates how questions that became unavoidable as the revolutionary dynamic of human rights within immigration law unfolded were simply circumvented in the most legalistic manner or covered up with sophisticated but incoherent doctrine. The fourth and concluding section analyses these manoeuvres as attempts to hold back and interrupt the emancipatory dynamic of human rights by a different form of revolution; a revolution that aims to circle back to the starting point, after what is seen as a perverting detour away from the initial aim of immigration law (which is to control immigration in, what is articulated as, the interests of receiving states). I argue that the chaotic and contradictory dynamic of current immigration law—at the national and international levels—is best understood as a clash between two different kinds of revolution. The first one is slow, but ground shaking in its emancipatory potential, the second is bursting out in waves of fierce pushbacks, but conservative in its intent.

8.1  The concept of a Copernican Revolution In the larger field of human rights law, it is, by now, a cliché to describe its impact as a Copernican Revolution (see Bussjäger 2016, 20; Berka 1999, para. 264; Kälin 1998). It is a restatement—although, an analytically useful

188  Stefan Schlegel one—of the more general observation of a ‘human rights revolution’ (Rosenfeld and Sajó 2012, 7) in the post-war period (Kälin 1998, 10), especially since the late 70s (Moyn 2012, 178; Kälin 1998, 11). However, the concept of a Copernican Revolution is sparsely used in the context of immigration law, a field that was late and hesitant to be brought under the influence of human rights law. Interestingly, the specific wording of a Copernican Revolution was used to describe the influence of human rights on immigration law, before it was used to give an analytical spin to the description of the growing influence of human rights in international law (see Kottusch 1990, 159). This section will begin by briefly explaining what is meant by a Copernican Revolution and then trace back the use of this concept in writings on immigration law, relating it to the demand for a human rights approach to immigration law and the more general idea of a ‘rights revolution’. The term Copernican Revolution is often used in legal writing, and it mostly refers to a remarkable development or a quantum leap. Here, however, the term is used in a stricter sense. The radical change that it describes does not come about abruptly (it did not in the case of the actual Copernican Revolution). However, it necessarily means the discontinuation of a previously dominant perspective, a new idea that proves to be incompatible with the old one. While a Copernican Revolution may take a long time to prevail and may co-exist with previously dominant perspectives for a long period, unlike a quantum leap, it cannot ultimately be brought into harmony with previously dominant paradigms. The question that follows is whether the notion of migrants as bearers of human rights is as incompatible with the idea of a state prerogative over migration as are the two views of earth rotating around the sun and the sun rotating around the earth? The first use of the analogy between human rights in immigration law and the Copernican Revolution might well have been less ambitious in drawing parallels, limiting itself to the observation that migrants were pushed to the centre of immigration law by human rights. The earliest mention of this analogy that I am aware of—in 1990 by Kottusch, a practising Swiss immigration official—is influenced, first, by the impressive practical relevance of the European Convention of Human Rights (ECHR) to immigration law, as compared to all the other multilateral treaties in force during that time.2 Second, it was informed by the impressive dynamic that unfolded at the time for the protection of the right to family life for migrants. At the time, the rapidly evolving case law of the European Court of Human Rights (ECtHR) effectively created rights for migrants to enter and stay in a country, where such rights were not foreseen in national law. Examples for such cases were family members who did not live in the same household but in a close relationship, or cases where it was not impossible, but merely deemed disproportionate to lead a family life abroad (Kottusch 1990, 159–160). From the standpoint of an official whose task is to uphold the discretionary capacity of a state to decide a person’s immigration status, the revolutionary potential of such an embryonic position of rights for migrants became visible early on.

Copernican revolution for immigration law  189 However, at that time, more theoretically oriented observers could not spot the nascent jurisprudence on immigration issues in the European courts (see Hollifield 1992, 590). The idea of a perspectival shift echoes in the human rights-based approach to migration that is promoted by non-governmental organisations (NGOs) and international organisations. It requires the ‘placement of universal human rights norms defined by the relevant international instruments as central premises of national migration legislation, policy, and practice founded on the rule of law’ (Cholewinski and Taran 2009, 18). The importance of the idea of a ‘centre’ in this formulation is noteworthy. The human rights-based approach further implies that ‘migrant workers are more than labourers or economic entities; they are social entities with families and accordingly are entitled to protection of the basic economic, social, cultural and civil rights (…)’ (Cholewinski and Taran 2009, 20).3 The idea that a human rights approach turns migrants from the objects of immigration law into its subjects is aptly summarised in this observation. Conceptually, the human rights approach to migration is much younger and more consolidated than the first observation that human rights introduce a revolutionary element into immigration law. However, it serves well to illustrate the meaning of Copernican Revolution, a counter-movement to what is criticised as ‘migration management’ (Hujo 2019, 26). The contrast between an approach that puts human beings at the centre of immigration law on the one hand, and an approach that sees migration as a phenomenon to be depoliticised and migrants as objects to be managed on the other hand, summarises the shift in perspective. However, the ‘migration management approach’—arguably the currently dominant approach to the regulation of migration—is not identical to the initial policing approach to migration. It is more neo-liberal and market oriented. What the two approaches do have in common is that migrants are the mere objects of management, not their core subjects. The human rights-based approach attained new prominence with two compacts in 2018, the global compact for migration and the global compact for refugees.4 In a rather critical perspective, this development is described as ‘the newfound mantra that migrants are people and therefore have rights’. However, this mantra keeps ‘falling back on the tropes of the migrant as either victim or criminal’ (Oelgemöller and Allinson 2020, 199; see also Shachar 2020, 93). Despite the emphasis on human rights, both compacts start from and reaffirm the prerogative of states to decide (in principle) who may or may not migrate. Therefore, the two compacts are rather documentations of the ongoing wrestle between two hardly compatible approaches to migration regulation, instead of being the first step to overcome this conundrum (Spangolo 2019; Moreno-Lax 2017b). If there was and is a Copernican Revolution in immigration law, it has all but come to an end. However, it is certain that the growing prominence of human rights in immigration law was carried forward by two distinguishable but interlinked developments. First, the rights revolution taking place within

190  Stefan Schlegel many states since the end of World War II that manifests itself through ‘state formation, democratization, and increased judicialization of constitutional law’ (Rosenfeld and Sajó 2012, 7). Second, the growing orientation of international law, in general, towards human rights (Moyn 2012, 200), which is a broader development that was itself described as a Copernican Revolution (Kälin 1998). Here, the Copernican element lies in the internationalisation of human rights (previously an internal matter of states), in their evolution into concepts with a universal claim, and in the emancipation of individuals into partial subjects of international law. This development has put a limitation on state sovereignty and let to an increasingly important role of non-government protagonists on the international stage (Kälin 1998, 16–17).

8.2  The emancipatory dynamic of jurisprudence This section retraces the dynamic triggered by human rights in the jurisprudence of international courts, quasi-judicial bodies, and national courts, when they were confronted with claims by migrants; and claims that the rights guaranteed in human rights documents ought to be applied to them, in their quality as migrants. The analysis of this dynamic will concentrate on general human rights texts and bodies, rather than on texts that specifically concern the human rights of migrants. This is because the more specific texts usually never developed a major influence. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) remains marginally influential because it remains unratified by any major country of immigration. Moreover, the point argued here is precisely that general human rights guarantees, without being tailored to the situation of migrants, almost inevitably develop an emancipatory dynamic in favour of migrants, given the right circumstances. The main protagonist in this dynamic is the prohibition of torture and inhuman or degrading treatment, which is guaranteed in Article 3 of the European Convention on Human Rights (ECHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), Article 3 of the Convention Against Torture (CAT), Articles 4 and 19(2) of the European Charter of Fundamental Rights (CFR) and many national constitutions (see Paz 2016, 16).5 This section deals with retracing the revolutionary potential of this protection (once it evolved into the principle of non-refoulement [see Thym 2008, 103]). The second important protagonist is the right to family life (Art. 8 ECHR), which was recently seconded by the right to private life, guaranteed in the same article. 8.2.1  Non-refoulement Initially, it was difficult to predict whether the prohibition of torture and cruel or inhuman treatment would have an impact on migration governance (Thym 2020). The prohibition was not drafted with the migrants’ rights in mind and it would hardly have won such a broad ratification (in the case of

Copernican revolution for immigration law  191 the ECHR, eventually ratified by 47 countries) had its ramifications for the field of migration been foreseeable. This is evident from the first case, in which, such a potential impact was in question. This case was not, strictly speaking, a case concerning migration; rather it concerned extradition. It was the Soering case, brought before the European Court of Human Rights (ECtHR) in 1989, the Court installed by the Council of Europe in Strasbourg, trusted with the task to hear (mainly individual) complaints on alleged human rights violations by its member states. The Soering case raised the question whether the UK would be in breach of the ECHR if it would extradite a young man to the USA, where he would probably face the death penalty. The young man argued inter alia that living in death row would amount to cruel and inhuman treatment. The UK government stated that in its view, Article 3 of the ECHR did not amount to a prohibition of exposing someone to torture or inhuman treatment in another country, to which the person would be sent.6 In rejecting this view,7 the ECtHR set in motion a virulent dynamic within immigration law. Once this switch was hit, it became very difficult to allow for a test of proportionality between the interests of a state to get rid of criminal or dangerous individuals, and the interest of those individuals to be protected against inhuman treatment. In a case that concerned a person allegedly involved in terrorism, and therefore, a case concerning very weighty interests of national security, the ECtHR made it clear that the protection against refoulement was absolute in nature. There was no room for a test of proportionality when there was a real risk of inhuman treatment.8 It then became practically impossible not to extend the protection against refoulement to the right to life and protect people from refoulement if they were threatened by the death penalty.9 Similarly, it became impossible to restrict the protection against refoulement to targeted threats like individual persecution. Once exposure to inhuman treatment is absolutely prohibited, this must be the case regardless of whether the treatment stems from individual persecution (like the persecution for individually held political views) or a general situation (like generalised violence that may affect anybody).10 Thus, the impact of the protection reaches out to situations of systematic violence in the country of origin,11 and inhuman treatment that results from a combination of the individual health situation and the conditions of the health system in the country of origin.12 However, the circumstances in this case were highly specific. The applicant, threatened by a removal to a poor island state with little medical infrastructure, was terminally ill with AIDS and had no family to rely on in his country of origin. Hence, the high threshold established in this case was never found to be fulfilled again. Observers pointed out that the balancing test between the interests of a state and the right of a person not to be subject to inhuman treatment facutally introduced by this high treshold, amounted to a glaring contradiction to previous case law that insisted on the absolute nature of the prohibition of inhuman treatment.13 However, the nature of the guarantee of non-refoulement demands that wherever the risk for a dehumanising situation in the country of origin is alleged, member states are

192  Stefan Schlegel under an obligation to provide procedural means to effectively assess the medical situation in the country of origin.14 A different Court, the European Court of Justice (ECJ) recently specified that such procedural guarantees required the remedies against refoulement to have suspensive effect.15 In the case of a family of asylum seekers, with young and particularly vulnerable children, about to be sent back to Italy, where reception conditions for asylum seekers were extremely dire, protection against inhuman treatment originating in the specific vulnerability of the persons in question was granted by the ECtHR.16 Teitiota v. New Zealand, a case concerning the right to life (Art. 6, ICCPR) before the UN-Human Rights Committee (HRC),17 was a hitherto unsuccessful attempt at extending that evolutive case law to cases of extreme hardship due to climate change (Çalı, Costello, and Cunningham 2020, 367). Despite the failure to obtain such a protection, it remained undisputed in the case that Kiribati, the islands to which the applicant was sent back, would become uninhabitable within 10 to 15 years. A reconsideration of this case law, either in the light of the right to life or under the protection against inhuman treatment, is as unavoidable as Kiribati disappearing from the map of inhabitable islands.18 Once refoulement is forbidden, so must indirect refoulement, that is, refoulement to a country from where there is a real risk of being sent to a third country where a person might be exposed to ill-treatment. Hence, the ECtHR established the principle prohibiting indirect refoulement. It did so in the context of asylum seekers about to be sent back to a country of transit in order to have their claim for asylum heard there (Çalı, Costello, and Cunningham 2020, 365).19 Another emerging question is whether the flagrant violation of rights, other than the prohibition of inhuman treatment or the right to life, should come under the scope of non-refoulement. One such scenario is the blatant violation of the right to a fair trial in a migrant’s home country. The Court conceded that extension20 in a case in which an applicant, in his country of origin, would be under a real risk of being convicted based on evidence obtained under torture of witnesses. This, the Court found, would amount to a flagrant denial of the applicant’s procedural rights. However, the threshold of a ‘flagrant denial’ of the right in question, required by the ECtHR remains very high (Çalı, Costello, and Cunningham 2020, 380). A next step in the waiting, a concept that has so far only seen ‘incipient recognition’ (Çalı, Costello, and Cunningham 2020, 363), is the notion of ‘constructive refoulement’ or ‘disguised refoulement’ (Mathew 2019). The idea is to prohibit the exposure of migrants to situations so destitute that they have no choice but to return to their own country, to a place where they are exposed to a real risk of inhuman treatment. A concurring opinion of two members of the HRC from 2014 foreshadows this concept: the inability to exercise the most basic economic and social rights, which would enable asylum seekers to stay in the country of asylum, may eventually leave them no choice but to return to their country of origin,

Copernican revolution for immigration law  193 effectively rendering illusory their right to non-refoulement under international refugee law. The same logic applies to the non-refoulement obligations of State parties under the Covenant: placing individuals who should not be deported to their countries of origin under intolerable living conditions in the country of refuge, may compel them to return despite the real risk of serious human rights violations awaiting them in their home State.21 The last and most important argument for the existance of an emancipatory dynamic is that the principle of non-refoulement necessarily triggers procedural guarantees (see Moreno-Lax 2012, 590), such as the possibility of asking for international protection, and to have one’s need for protection assessed before being sent back22 or turned back at a border fence or in the high seas.23 When sending back alleged refugees to a third country, removal (…) must be preceded by thorough examination of the question whether the receiving third country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faces from the standpoint of Article 3 of the Convention.24 Thus, the impact of the principle of non-refoulement goes beyond a state’s territory and is triggered through what might be called meaningful contact. Meaningful contact refers to situations where a potential addressee of human rights obligations can no longer plausibly pretend to not know about the plight of a migrant. It does not refer to an encounter where protection obligations of a state automatically come into existence but to encounters in which the claim to the existence of such obligations can plausibly be made. Therefore, such encounters impose procedural duties on states to justify, why, on a particular occasion, their human rights obligations did not come into existence. Together, these developments—all tracing back to the 1989 Soering case (see Moreno-Lax 2012, 583)—make it very difficult to conceive of instances where a state, confronted with the plight of someone seeking protection from an alleged threat of ill-treatment, has no obligation to materially look into that claim (Moreno-Lax 2012, 597–598). This is true for any form of meaningful contact, whether inside or outside a state’s territory. However, it is still possible for states to dodge such responsibility, as we shall see in the next section. Although courts were confronted with similar questions, it is worth mentioning that a different scenario played out in other regions of the world. Australia or the United States, for instance, never set off a comparably dynamic jurisprudence on non-refoulement. The US Supreme Court Decision in Sale v. Haiti Center Council is infamous in this respect.25 It might well be argued that decisions like in Sale underline the dynamic that would almost necessarily have been triggered, if they would have been decided

194  Stefan Schlegel otherwise. The contradictions and obvious politically motivated moves in Sale are so glaring (see Hongju Koh 1994, 15–17) that it may well serve as an example for a backlash in courts. They can be found in Europe as well and are discussed in the third part of this chapter. However, if a backlash occurs before there is much of a dynamic jurisprudence to push back against, this may demonstrate that the dynamic has been quite predictable from its potential starting point and that the intention of the Court’s majority in this case was to prevent such a dynamic from taking off in the first place. However, even if a dynamic was predictable, it remains a dynamic; and therefore, it is hard to prevent or to undo once it has started. Therefore, it seems to be a questionable critique that the developments in the jurisprudence of more dynamic bodies than the US Supreme Court, namely the ECtHR, were ‘moves’ that have been deliberately planned and executed (as implied by Paz 2016, 18). Rather, it seems that the Court was carried away on a path where it was hard to turn around once it was taken. This observation is corroborated by a recent comprehensive review of the case law on non-refoulement of the quasi-judicial bodies of the UN, the UN-treaty bodies (UNTBs) (Çalı, Costello, and Cunningham 2020). The most relevant treaty bodies with respect to the guarantee of non-refoulement are the Committee against Torture (CAT) and the Human Rights Committee (HRC). However, an important case law has emerged from the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on the Rights of the Child (CRC) (Çalı, Costello, and Cunningham 2020, 359; Tan and Gammeltoft-Hansen 2020, 343–344).26 Recently, the Committee on the Rights of Persons with Disabilities (CRPD), for the first time, found its own convention violated in a refoulement case concerning a women from Iraq with a severe psychological condition.27 This case law differs across treaty bodies and is different in comparison to the case law of the ECtHR. In some respects, it follows the jurisprudence of the ECtHR, a trailblazer in this field. On some accounts, it goes beyond the threshold established by the ECtHR and in some aspects, it is more restrictive (Çalı, Costello, and Cunningham 2020, 383). This is counter-intuitive, as one would expect non-binding quasi-judgments tend to go further than fully binding court decisions as in the case of the ECtHR. However, all this case law is dynamic in the sense that one step taken in extending the prohibition of refoulement enhances the pressure to take the next step. The exact trajectory of this dynamic is not deterministic as demonstrated by the differences in the case law of different judicial and quasi-judicial bodies. It still amounts to an overall pressure towards an emancipatory dynamic, which will eventually ‘challenge the logic of migration control’ (Çalı, Costello, and Cunningham 2020, 383). 8.2.2  Right to family life For a long time, the ECtHR has been reluctant to grant a right to enter a country or to stay in it as an aspect of a right to family life. Its jurisprudence on the matter was marked by ‘the general indifference of Article 8 of the

Copernican revolution for immigration law  195 ECHR towards the structure of national immigration law’ (Thym 2008, 97). This has changed (Czech 2016). Article 8 of the ECHR has become an important foothold, both when it comes to resisting expulsion from a member state (Desmond 2018, 262) and—with a ten-year delay (Thym 2008, 87–88)—being granted the right to enter into a member state. The Court stated in its very first treatment of the context of migration and the right to family life—in the Abdulaziz case of 1985, concerning women residing in the UK, who were denied the right to live together with their foreign spouses28—that the guarantee has implications for the prerogative of member states to regulate migration (Desmond 2018, 265). One decisive shift in this dynamic is the evolution from the test, whether family life cannot be enjoyed unless in the member state to which entry is requested,29 to the much lower threshold that family life can most adequately be enjoyed30 in that member state (Czech 2016). The second shift came with the recognition that the right to family life may protect migrants, who never had permission to remain in the country, from removal (Thym 2008, 100).31 The dynamic of the right to family life is accelerated by its more frequent reading in conjunction with Article 14 of the ECHR (prohibition of discrimination) in the migration context. This extends the realm of protection to migrants and their family members that have so far (for instance because of their homosexuality,32 or the fact that they were HIV-positive33) been excluded from its protection (Czech 2016). This combination of rights extends the right to family life to unexpected regions of regulation: the prohibition of discrimination also extends to those additional rights which the state has voluntarily decided to provide. As soon as the legislator grants certain categories of foreigners (or of own nationals) a right to family reunification, any exclusion of other categories who are in an analogous, or relevantly similar situation demands an objective and reasonable justification. (Czech 2016) Another effect of this conjunct reading is the shrinking margin of appreciation. This margin is the space of flexibility with regard to domestic legal traditions and preferences that the Court is willing to grant member states in the implementation of the Convention. It is usually wide in cases of immigration. However, when it comes to differentiated treatment based on problematic criteria, such as gender, sexual orientation, or bodily ability, the ECtHR has started to squeeze this margin (Czech 2016). A fascinating trait of the ECtHR’s jurisprudence on the right to family life is its growing references to the Convention for the Protection of the Rights of the Child (CRC) (see Czech 2016), for instance, regarding the modalities of family reunification,34 and especially in reviewing the balance of interests by national courts.35 This convention is considerably newer than the ECHR and is an expression of the dynamic nature of human rights, where human rights tend to be spelled out specifically for special groups of rights holders

196  Stefan Schlegel such as children (or migrants). Once such a source becomes available to a Court with a general scope like the ECHR, it is hard not to turn to it when confronted with questions that specifically concern this group. The tendency to read the content of the CRC into the ECHR,36 or to extend the rights of migrants directly based on the CRC can also be observed in national courts.37 As with the principle of non-refoulement, the right to family life has procedural implications that play out most directly in the context of refugee protection. Requests of asylum seekers or refugees to reunite with their family in the country of protection that are leniently processed by the administration, can amount to a violation of the right to family life (Czech 2016). The Grand Chamber of the ECtHR found the right to family life violated by a three-year waiting period for the possibility of family reunification for subsidiarily protected migrants in Denmark. Such a long waiting period violates the right to family life, at least, where there is no possibility of considering the specifics of the individual case.38 One dimension of a potential dynamic of the guarantees in Article 8 ECHR, is the extent of the protected family, which the Court has been extremely reluctant to develop in an immigration context (in comparison to contexts not involving migration). In a migration context, the notion of the family remains restricted to the nuclear family of parents and dependent minor children. Exceptions to this rely on very special conditions of dependencies beyond normal emotional ties (Desmond 2018, 266). This is the result of a restrictive turn in the case law of the Court. It used to pursue a more generous concept of a family. But then, in the Slivenko case, which concerned the family of a former soviet officer that had lived in Latvia for a long time, but was ordered to leave after the dissolution of the USSR, it restricted the concept of a family in the context of immigration, while simultaneously broadening the protective scope of a right to private life (Thym 2008, 91).39 A possible next step in this dynamic would be for the ECtHR to accept the argument that its restrictive notion of family as a nuclear unit discriminates against families with different cultural backgrounds in which the nuclear and extended family are not distinguished as strongly as it is typically done in Western countries (see Desmond 2018, 269; Thym 2008, 92). The combination of a right to family life and right to non-discrimination would then open up yet another space of protection for many family ties now outside the scope of protection.40 8.2.3  Right to private life The right to private life has an enormous emancipatory potential that the ECtHR has so far chosen to treat very carefully; and therefore, one that seems more avoidable than the emancipatory dynamics in the context of non-refoulement and the right to family life.41 The jurisprudence on the immigration aspects of this right remains embryonic (Desmond 2018, 272). In stating that ‘not all settled migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy

Copernican revolution for immigration law  197 “family life” there’ but may still enjoy a form of private life there,42 the ECtHR clearly signals that it attaches greater weight to family life than to private life. The right to private life is treated as complementary in nature in this formulation. However, the ECtHR does recognise the following: As article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life.43 Acceptance of this pushed a doorway for the unfolding of a dynamic jurisprudence to the brink of a truly revolutionary tipping point. Once the red line would be crossed to recognise that any forced removal from a country disrupts a private network of social ties and therefore infringes on the right to private life,44 this would require a systematic balancing test, where the state’s actions on immigration would systematically be exposed to a test of proportionality. Such balancing exercises sit uneasily with the idea of a discretionary state prerogative (Hilbrink 2017, 157, 327; Thym 2008, 102). The ECtHR came close to crossing this red line with its recognition that ‘it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of “private life”’.45 This jurisprudence is limited and remains restricted to settled migrants.46 Therefore, it would be a remarkable step, if the Court were to recognise the possibility that temporary or even irregular migrants may require protection for their right to a private life, against removal.47 In recent case law the ECtHR demonstrated that the threshold for the right to private life, that grants a right to stay in a country, remains extraordinarily high. An example is the case of a young man who spent practically all his life in the Netherlands with Dutch relatives. For a long time, he remained ignorant of the fact that he was not a Dutch citizen himself. When he left the Netherlands under unclear circumstances, the Court found that—given his criminal record— the interest of the country to not allow him to return outweighs the man’s interest to return to where he had spent all his life.48 Given the rather minor developments regarding the right to private life, there is much less pressure for the Court to walk down a path once taken than there is with non-refoulement (see Desmond 2018, 276). This may be so since the protected goods are not quite as sacred as in the case of non-refoulement and are clearly suitable for a test of proportionality,49 and infringements on the right not quite as irreversible. However, the potential limitations on the capacity to regulate migration for states are much more general and concern many more cases than with non-­ refoulement. Therefore, it is not surprising that the evolutionary dynamic unfolds much slower in this case, although its influence may prove to be much broader.

198  Stefan Schlegel However, it is within national courts where this dynamic has already begun to unfold. One such example is Switzerland, where a more generous jurisprudence on the right to private life marks the most dynamic development in immigration jurisprudence during the last decade (see Schlegel 2020).50 This, in turn, led, with a certain necessity, to a subsequent extension of the protection of family life.51 Where one family member’s right to remain is protected as part of her right to private life, it is very hard to deprive this person from the possibility of bringing in her family. In all, far from being ‘either absent or ineffective’ as a driver for ‘unwanted migration’ (Joppke 1998, 293), the system of international human rights protection is in an uneasy and permanently conflicting relationship with national sovereignty. It remains true that the ECtHR’s decision model ‘leaves the legitimacy of controlling and restricting immigration unquestioned’ (Hilbrink 2017, 324). The ECtHR often even hastens to underline the legitimacy of such control. However, the member state’s elbow room to yield such control is continuously constricted by the Court’s dynamic jurisprudence. In this regard, human rights are indeed incompatible with state sovereignty. They are in a relationship of relentless conflict, as are the Copernican and Ptolemaic cosmologies. The question is whether a human rights approach to migration will eventually gain the upper hand (as the Copernican cosmology gained over the Ptolemaic one).

8.3  Counter-movements in the political and administrative realm For a good while now, it has been warned that the expansive tendency of human rights law beyond its ‘natural and critical scope’ will provoke backlashes by States to stop or reverse this tendency (Gavison 2010, 8). Indeed, the emancipatory dynamic of human rights jurisprudence is no one-way street. Advancements on this slippery slope abruptly meet setbacks time and again, manifested in policies and court decisions. Political and migration authorities reacted to the growing bundle of rights for migrants that emerged through meaningful contact with a state by using different strategies. The emancipatory dynamic, especially of the principle of non-refoulement, was accompanied by ‘a peculiar construction boom around the world’ (Paz 2016, 1; see further Shachar 2020, 3–4), namely, the emergence of walls all over the world; a world, notably, that had just celebrated the fall of the Iron Curtain. These new edifices were described as ‘the fence to square the circle’ (Paz 2016, 37) of an immigration law that has to co-exist with human rights. A second strategy—often combined with that first one—creates legal fictions of non-contact or non-entry (Shachar 2020, 42). The third strategy externalises immigration controls to countries of origin or transit, or to the providers of transportation services. A relatively early development in this regard, before the advent of much more elaborated fictions of non-contact, was the dodging of several thousand claims for asylum at the Swiss embassies in Damascus and Cairo after the invasion of Iraq (between 2006 and 2008). The embassies of several

Copernican revolution for immigration law  199 western countries were confronted with large numbers of asylum claims from Iraqi citizens during that time, but only Switzerland legally provided the possibility of asking for asylum at an embassy, which technically made it compulsory to answer the claims (Féraud 2011, 12, 27). The risk of refoulement from Egypt and Syria to Iraq was low during that time (Féraud 2011, 20) and the asylum claims could have been dismissed on those grounds. Therefore, it seems that it was less the pressure to actually grant asylum than the burden of an orderly procedure that would have overwhelmed the embassies and the immigration administration (Féraud 2011, 25). The ensuing independent investigation of the episode left no doubt that the law was violated by simply not looking into the asylum requests. Nevertheless, the report voiced much sympathy for the behaviour of the overwhelmed authorities and recommended that Switzerland—as already planned at the time of the report—abolish the possibility of claiming asylum in embassies (Féraud 2011, 35). This possibility has since been abandoned. A more systematic and arguably more problematic response to a crisis much larger in scale was the so-called EU–Turkey Deal of 2016 that raised numerous legal concerns, especially, regarding the guarantee of nonrefoulement. Scholars did not cushion their concerns about the deal. Steven Peers wrote early on that the deal contained a ‘flagrant breach’ of EU law (most prominently the EU’s own guarantee of non-refoulement in Articles 4 and 19(2) of the CFR) and obvious contradictions: ‘To be frank, anyone with a legal qualification who signed off on this (…) should hang their head in shame’ (Peers 2016). This assessment aptly predicted that the deal would confront the EU courts with tough legal questions. When those questions did arise, the courts found dubious ways to circumvent them, as discussed later in this section. It was unclear from the beginning whether the document was in fact a legally binding agreement. However, there was little doubt that the European Council overstepped its legal competencies in concluding the deal to the detriment of the Parliament and the Court of Justice (Den Heijer and Spijkerboer 2016), and that doubts about its nature seemed to have been intentionally created. All these circumstances indicate a strategy to get rid of procedural obligations towards asylum seekers. The deal was a hasty reaction to a crisis that allegedly had brought the Common European Asylum System (CEAS) and Schengen Area ‘to the brink of collapse’ (Thym 2016). Both the behaviour of the Swiss immigration authorities and the EU– Turkey Deal are examples of the willingness of authorities and politicians to create a legal vacuum, where otherwise slowly established aspects of human rights would apply to a large number of people. These are not refutations of the emancipatory dynamic that human rights law developed within immigration law; they are more or less elaborate attempts to sidestep the effects of that dynamic. A somewhat different move concerns the attempt to undo or rewind the legal basis on which the dynamic unfolded. Madsen, Cebulak, and Wiebusch distinguish between pushbacks and actual backlashes against international

200  Stefan Schlegel human rights courts. Pushbacks refer to the specific critique of the jurisprudence of international courts by states or international organisations or other entities, and thereby, seeking to influence the future direction of the jurisprudence. A backlash is the actual institutional weakening or even dismantling of international bodies in order to curb the dynamic they triggered (Madsen, Cebulak, and Wiebusch 2018, 198). Therefore, there is an important difference between counter-tendencies and resistance to an emancipatory dynamic within the system (a pushback) and attempts to ‘overturn the system’ (a backlash) (Madsen, Cebulak, and Wiebusch 2018, 202). With regard to the dynamic that international courts triggered in immigration law, states have tried both strategies. There were attempts by state parties to convince courts that they should limit the scope, especially of the non-refoulement principle (Çalı, Costello, and Cunningham 2020, fn. 17–20). On the other hand, since 2010, there have been several, concerted efforts by states to curb the institutional power of international courts, especially the ECtHR (Glas 2020, 125–126).

8.4  Counter-movements in courts It is easy to predict where the aforementioned dynamic jurisprudence on non-refoulement would lead and where it would run into serious trouble: at the islands that are the exposed outposts of a state’s territory, at the embassies,52 and at the fences (see Costello and Mann 2020, 314). In other words, it will face problems wherever the territorial aspect of responsibility for human rights is dynamically replaced by a concept of meaningful contact, a contact that often takes place outside of a state’s territory but is intense enough to make human rights obligations emerge; thereby, potentially opening access to a jurisdiction for people who have not been strong or lucky enough to make it to the territory, where they hope for protection. Furthermore, there is a non-geographically determined frontier at which this dynamic jurisprudence predictably runs into trouble: the frontier of non-refoulement for reasons of health (and the quality of the health system in the country of origin). When the ECtHR made a move in the direction of this frontier,53 it had to row back quickly, given that the potential new population that would be protected by such a dynamic would be large and the costs for receiving states very high, it is unlikely that there is much of a dynamic to be expected in this field. The counter pressures are simply too strong. Accordingly, the focus of the following sections is on those frontiers of human rights protection that are actually moving in a dynamic and troubled way. 8.4.1  Islands: NF, NG, und NM v. European Council A particularly striking example of dodging a question that would have, with great probability, pushed forward the human rights dynamic into the trouble zone is the decision of the General Court of the EU on the EU–Turkey Deal in February 2017.54 The request brought before the Court was the

Copernican revolution for immigration law  201 annulment of the deal, which provided that every migrant irregularly entering Greece ought to be sent back to Turkey. It is a striking example—not so much for the fact that the request was turned down—but for the specific and implausible justification given for it. The Court argued that the deal in question was not concluded between the EU and Turkey, but between all its member states and Turkey and that it was therefore not competent to assess this deal. This justification was dubbed a ‘charade’ (Bast 2017) and seemed to be designed to avoid any form of judicial scrutiny of the deal, including by the European Court of Justice (ECJ). Had the General Court refused to treat the matter on the grounds that grievances had to be brought before the courts of the member states, who then had to submit questions arising from it to the ECJ, it would have gotten rid of the difficult questions posed by the request. However, it still would have opened a path to judicial scrutiny, which seems to have been the one thing the Court wanted to avoid (Bast 2017; see also Danisi 2017). ‘Its formalist approach (…) seems to validate a new practice followed by Member States in deciding outside the EU Treaties, but for the EU itself’ (Danisi 2017; see also Costello and Mann 2020, 319). The impression of a Kafkaesque legal vacuum, where no protection from the courts was to be expected, was strongly confirmed by the fate of the appeal against this decision of the General Court at the ECJ. The Court declared the appeal as manifestly inadmissible for the ‘reasoning is not clearly and precisely apparent from the elements which they set out in a vague and confused manner’.55 Observers were unconvinced: even admitting that the appeals were badly drafted, to the point of making it difficult—perhaps very difficult—to draw clear and coherent arguments in favour of the annulment of the decision of the General Court, nonetheless, in the opinion of the current author, the Court of Justice should have attempted the impossible and tried to deduce these arguments from the available documents and to review the legality of the Statement. (…) By dismissing the case as being manifestly inadmissible, without considering the merits of the appeals, the order of 12 September 2018 tends to reinforce the idea that, in the EU legal order, there are arcana imperii still immune from judicial scrutiny. (Cannizzaro 2018, 472; see further Antoniazzi 2019, 362) Rarely has the EU given the impression of such an unapproachable and unresponsive centre of power. Manifestly incoherent and unconvincing, this behaviour leaves room for only one conclusion: that the emancipatory dynamic of human rights had gone so far that the authorities felt that regaining control was only possible at the price of a breach of coherence. It is an example of a judicial backlash against a dynamic set in motion by the courts themselves. 8.4.2  Embassies: X and X v. Belgium At about the same time in early 2017, the ECJ had to decide whether a Syrian family, fleeing from war-torn Aleppo to Beirut, had—under the EU

202  Stefan Schlegel Charter of Fundamental Rights—the right to the requested Schengen visa at the Belgian Embassy in Lebanon. According to Advocate General Mengozzi, the question at hand was a direct extension of the Hirsi case at the ECtHR56 (Brouwer 2017, 6; Zoeteweij-Turhan and Romano 2017, para. 11).57 The Hirsi case assured that the prohibition of non-refoulement is not limited to territory but extends to instances in which a state agent has ‘continuous and exclusive de jure and de facto control’58 over the fate of individuals, like in the Hirsi case, by apprehending them on the high seas. Advocate General Mengozzi provided a forceful description of the path-dependency and inescapability of the emancipatory dynamic: the present case must, in my opinion, lead the Court to state that respect for those rights, particularly the right enshrined in Article 4 of the [European] Charter [of Fundamental Rights, prohibiting torture and inhuman or degrading treatment or punishment], implies the existence of a positive obligation on the part of the Member States, which must require them to issue a visa with limited territorial validity where there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing persons seeking international protection to torture or inhuman or degrading treatment which is prohibited by that article.59 The Advocate General ended his opinion with the following plea: allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach (…). It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to (…). Make no mistake: it is not because emotion dictates this, but because EU law demands it.60 However, the stakes were so high that the ECJ opted to forcefully break out of the seemingly predetermined path. The fear of an ‘uncontrollable flood of applications’ was particularly evident in this case. It was explicitly articulated by ‘a large number of governments which participated at the hearing before the Court’.61 There are good reasons to believe that this fear was overblown in the present context. The family situation of the applicants, their situation as part of a religious minority in an ISIS-occupied city, and their immediate risk of being returned, distinguished them from the much larger group of displaced Syrians during that time (Brouwer 2017, 9; Zoeteweij-Turhan and Romano 2017, fn. 47). Still, it was the argument that the Court was most concerned with, before finding a way around answering the questions actually raised by the Belgian court that had brought the issue before the EUCJ (Sheridan and Taylor 2017). The EUCJ took, in the eyes of critical observers, the ‘easy way out’ (De Vylder 2017). ‘It is the Court’s obvious wish to

Copernican revolution for immigration law  203 steer clear from the Charter where the sticking point of this judgment actually lies’ (Zoeteweij-Turhan and Romano 2017, para. 36). The exit move for the Court to escape the emancipatory path dependency was to state that the intended stay in Belgium was longer than 90 days, which is why it fell outside the scope of Schengen law, and thereby, of EU law. It ignored the rather obvious argument that issuing a visa (under EU law) was a necessary precondition to be able to ask for asylum within Belgium (under domestic law), and that the purpose for which a visa was requested (asking for asylum within Belgium) would last less than 90 days. The Court’s verdict resulted in further confusion about when the EU law applies on the actions of its member states, and contradictions with earlier cases (Sheridan and Taylor 2017). Academics concluded that the judgment ‘demonstrates that the Court was guided rather by the political considerations that surrounded the judgment’, (Sheridan and Taylor 2017) and that its motivation—as was the motivation of the European Council with regard to the EU-Turkey Deal—was ‘to save an already failing system [the Dublin System]’ (Zoeteweij-Turhan and Romano 2017, para. 14). With its inadmissibility decision in M.N. and Others v. Belgium in March 2020, the ECtHR seconded the ECJ, stating that the application for protection at embassies does not fall under the ‘jurisdiction’ of the member states (Stoyanova 2020). As in X and X, there was a strong and explicit rejection of extending jurisdiction to embassies.62 Many member states submitted thirdparty comments strongly arguing against the extension of jurisdiction, and especially, against facilitating access to asylum procedures through embassies or consular representation. Therefore, Stoyanova concludes that such access ‘remains a matter of state discretion and the attempt to place it within the framework of human rights law (in the form of an individual entitlement corresponding to a concrete obligation) was unsuccessful’ (Stoyanova 2020). 8.4.3  Fences: N.D. and N.T. v. Spain (Grand Chamber) Another high-profile decision so markedly looking like a setback on the emancipatory dynamic of human rights jurisprudence raises the question of whether it marked a ‘restrictionist revolution’ (Thym 2020).63 The case concerned two individuals who—in the summer of 2014—took part in a mass attempt, involving around 600 people, to cross the border fences between Morocco and the Spanish Enclave of Melilla. Both were arrested by Spanish Guardia Civil and instantly handed over to the Moroccan police. They had not undergone any identification procedure and were not given an opportunity to explain their personal circumstances. When in 2017, the chamber of the ECtHR decided the case N.D. and N.T. v. Spain,64 much in line with the Hirsi case that declared pushbacks on the high seas a violation of the Convention,65 observers underlined the path dependency of a dynamic human rights jurisprudence and concluded that the chamber could hardly have done otherwise. One such observer quipped that ‘[t]he Court’s ruling on the merits does not come as a surprise, as the

204  Stefan Schlegel facts are so straightforward that it would have been difficult for the Court to find otherwise’ (Pijnenburg 2017). However, this allegedly unavoidable continuation of an emancipatory dynamic was challenged before the Grand Chamber, which brought it to a grinding halt.66 Thym stated that, at least on a superficial reading, the decision of the Grand Chamber of the ECtHR on N.D and N.T. that found no violation of the Convention or its Protocols, heralds an endpoint to 25 years of migrant-friendly human rights case law (Thym 2020). However, the judgement should not be overestimated in its scope. Particularly, it did not render pushbacks or hot returns—the summary return of people to neighbouring countries without an assessment of their individual situation—legal. Such a practice remains a violation of Articles 3 and 13 of the Convention (Hruschka 2020).67 The Grand Chamber effectively carved out elbow room for member states and for itself in the very specific cases, where there has been ‘an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse’.68 Furthermore, in N.D. and N.T. a breach of the prohibition of torture, inhuman or degrading treatment (Art. 3 ECHR), and the right to an effective remedy (Art. 13 ECHR) could not be treated for procedural reasons (the case only concerned the prohibition of collective expulsion as guaranteed in additional Protocol 4, Art. 4).69 The Spanish practice of turning people back at the border fences of its enclaves remains illegal, just not for the norms under scrutiny in this specific case (Hruschka 2020).70 The attempt of the Grand Chamber to circumvent the seemingly unavoidable opening of the Pandora’s box was described as an attempt ‘to rule in Solomon-like fashion, but it has failed in the face of both public perception and legal scrutiny (because the judgment is not consistent)’ (Hruschka 2020; see also Thym 2020). Therefore, it is ‘an obscure combination of restrictions and dynamism’ (Thym 2020). Rather than a backlash, it might be the witness of a ‘trend towards judicial standstill after more than two decades full of revolutionary judgments’ (Thym 2020). The case law since N.D. and N.T. concerning the prohibition of collective expulsion seems to suggest that indeed the effects of that case remain limited, and that the Court keeps on insisting on the prohibition of pushbacks, even in situations of high tension at a border or the crossing of borders in larger groups (see Schmalz 2021, 363–364). These cases concerned pushbacks at the Hungarian-Serbian border71, at the Polish–Belorussian border,72 and at the Bulgarian–Turkish border.73 Therefore, presently, the great step forward at the fences (in the eyes of the Copernican Revolution) or for the restrictionist revolution (in the eyes of the defenders of the state prerogative) remains a critical step in waiting. In conclusion, the rather stubborn dynamic that human rights unfold, once they trickle into immigration law, is superseded by occasional but forceful backlashes—true breakouts from the system rather than pushbacks within the system—of the slowly crunched prerogative of discretionary control of immigration. Together, the dynamic and the counter-dynamic lead to the chaotic and contradictory picture that immigration law presents today. It

Copernican revolution for immigration law  205 may be argued that the jurisdiction extending human rights in the realm of migration control is sensible on a case-by-case basis but senseless in its overall result (Paz 2016, 8). The same cannot be said, however, for jurisdictional backlashes. Incoherence is the hallmark of this case law. The backlashes against an emancipatory dynamic are often so manifestly implausible or incoherent, that they are impossible to explain if they are not set against the background of the unfolding dynamic that eventually penetrates the ‘last bastion of sovereignty’ (Shachar 2020, 71). Therefore, the current immigration law cannot be understood if it is not analysed as the ongoing wrestle between two ultimately incompatible perspectives and political goals.

8.5  Conclusion: clash of different types of revolutions There is a series of elements in the actual Copernican Revolution that turn out to have meaningful analogous elements in the influence of human rights on immigration law. First, both represent a multiplicity of revolutions (Kuhn 1957/2003, vii), and not a singular breakthrough at one point in time. When Copernicus and Kepler demonstrated that the trajectory of the planets could be predicted much more accurately if one were to put the sun rather than the Earth at the centre of the observed system, they were still very far from a Newtonian description of the Universe. However, Copernicus’ findings were an initial precondition to many small epicentres of a scientific revolution (Westman 1994, 90) that found its climax in Newtonian description of the Universe. Similarly, the idea of human rights, once stated, can be unfolded and spelled out in different ways. This was and will probably be accomplished by a multitude of institutionally independent but intellectually interacting agents, scattered across space and time (see Shachar 2020, 64). A different way of putting it would be to call them both slow onset revolutions. Moreover, both unfolded with little drama, but over time accumulated as a formidable challenge of the old paradigm. Another related analogy is that the ultimate effects of the fire that was started were unforeseen and unintended by those who started it. Copernicus had no way of predicting the sweeping effects of his insights, at least, on theology and philosophy (Kuhn 1957/2003, 264; Westman 1994, 87). Similarly, the early advocates of human rights hardly intended to challenge the capacity of states to regulate migration to the degree that human rights turned out to limit it over time. Both ideas are bells that cannot be unrung. In addition, both revolutions allowed for parsimony in the explanation of observed phenomena. Although many different and apparently contradicting observations about planetary movements required separate explanations in the Ptolemaic view, Copernicus laid the groundwork to explain them with a unified concept of heliocentricity (Kuhn 1957/2003, 252). Similarly, human rights offer a unified concept and a language to formulate all issues and demands of individuals (migrants and others) (see Gavison 2010, 25) in the context of the regulation of international human mobility by states.

206  Stefan Schlegel The last parallel that deserves mention is that both innovations turned out to be destructive as they destroyed well-established previous views, and at the same time are suggestive of new views (Kuhn 1957/2003, 245). Just as the Copernican Revolution ended the Ptolemaic view for good (if only slowly so) (Westman 1994, 104), the intrusion of human rights into immigration law made it impossible (if only step by step) to organise immigration law exclusively around the sovereign prerogative of states to regulate migration in their interest. A management-approach to immigration law proved untenable, and little by little was confronted by a human rights approach, although a fragile one. Similar to the opening up of new avenues to discover the universe through the Copernican insight, human rights (especially human rights jurisprudence) resulted in various new possibilities to approach, organise, and explain immigration law, and provided a means for migrants to voice their plight, vis-à-vis a state. However, there is one major difference between the two revolutions. The Copernican Revolution eventually achieved hegemony. While there were political backlashes against it by the Church, intellectuals or states (Kuhn 1957/2003, 185–200) within its field of natural science, eventually, there was no room left for an alternative explanation. The revolution, in that sense, was sweeping. This is different from the impact of human rights on immigration law. Human rights are permanently, probably increasingly so, confronted with a pre-existing, different, and incompatible paradigm, that manifests itself in sudden attempts to return to the initial point of departure. Hence, two different types of revolutions are in constant conflict with each other, concerning immigration law. The first results in a change of perspective, as did the Copernican revolution. On its own, it would be a steady emancipator, giving more voice to those who used to be voiceless. The second is a revolution in the sense of the Glorious Revolution, a forceful attempt to turn back things (to re-volutionise them), to the place where they used to be. In that sense, human rights and immigration law are incompatible. They cannot be brought into harmony with each other in the sense of an equilibrium or a coherence of doctrine. They remain in a ‘dialectic tension’ (Soysal 2007, 164). The only way for them to coexist is in contradiction with each other, and in an uneasy and chaotic dynamic, with no new equilibrium in sight. A third type of revolution, a seizing of power by the powerless (like the French Revolution) that does away with a previous, allegedly unjust system, and erects an entirely new one, allegedly dictated by reason or universal principles, remains unlikely for immigration law. This is not because of a lack of interest among a large group of potential migrants to completely replace the existing system with another but because organising those dispersed interests is extremely difficult. The question that remains is whether the revolution brought into immigration law by human rights is a much more radical form of revolution, like the one described by Thomas Kuhn in his ‘The Structure of Scientific Revolutions’ (Kuhn 1962/2009). Such revolutions change perceptions in ways so radical that the mutual difficulties in understanding each other faced

Copernican revolution for immigration law  207 by the proponents of the old and the new paradigm are ‘as if the Olympic runners of the succeeding paradigm no longer see the torches or understand the behaviour of the runners in the preceding paradigm’ (Westman 1994, 85). Classic examples would be the change from miasma theory to the germ theory of diseases, from Newtonian gravity to general relativity or indeed— in the realm of natural science—the Copernican Revolution. However, such a parallel is lacking in the story under scrutiny here. Human rights are and remain embedded in the paradigm of nation states; they are directed against those states and in the context of migration perforate state sovereignty in the sense of an exception to a rule. Thereby, confirming and consolidating the rule, rather than questioning the paradigm. Human rights, in this sense, stem from the same paradigm of methodological and axiomatic state-centrism and nationalism, as does the immigration law they challenge. Switching from an analytical to a normative perspective, can there be more than a ‘story of disappointment’, as Moria Paz describes the current relationship between immigration law and human rights (Paz 2016, 34)? Is there a better story to be hoped for than the current one in which both possible goals of an immigration policy are missed at the same time? These goals are the formulation of a coherent doctrine for human rights protection that extends the highest degree of protection to those most in need on the one hand, and a migration policy that grants states enough power to keep the phenomena of migration ‘manageable’ on the other hand. The answer to this question by one of the main protagonists of this story, the ECtHR, insists on the force of legal rules as opposed to political concerns. In the Hirsi case, the ECtHR asserts: ‘Potential problems with managing migratory flows cannot justify recourse to practices which are not compatible with the State’s obligations’.74 The literature echoes this: ‘the fear of numbers does not constitute a legal argument, let alone one capable of warranting the limitation of absolute rights’ (Moreno-Lax 2017a). Of course, legal arguments are not the only ones that matter in this—or in any—context. The ECtHR itself came dangerously close to giving political context the upper hand when it quipped, in the Khlaifia-Case of 2016 that concerned Tunisian asylum seekers, who were held in makeshift detention facilities during the so-called Arab Spring crisis: while the constraints inherent in such a [migration] crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind (…) that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time.75 However, as long as legal arguments continue to matter alongside the political pressure that works against them, and as long as there persists the intention ‘to guarantee not rights that are theoretical or illusory but rights that are

208  Stefan Schlegel practical and effective’,76 a less disappointing story for the protection of human rights seems almost unavoidable. As far as it remains possible to protect institutions that find themselves under pressure to stick to intellectual coherence (that is, courts and quasi-judicial bodies), they will gently but steadily nibble away at this ‘last bastion of sovereignty’ (Shachar 2020, 71), the prerogative to decide who belongs and who does not. Costello and Mann observe that ‘(…) it is difficult to read the ECtHR and CJEU jurisprudence on migrant and refugee rights since the “crisis” as anything other than a genuflection to political power. But, the fundamentals have held, in large part’ (Costello and Mann 2020, 320). Whether this is seen as desirable or not, as long as ‘the fundamentals’ will hold, the revolution will keep moving on, however slowly.

Notes 1 Thym describes immigration law as a ‘human rights exlave’ until the European Court of Human Rights (ECtHR) extended the application of rights as guaranteed in the European Convention on Human Rights (ECHR) to immigration cases (Thym 2008, 96). 2 However, Switzerland did not ratify the International Covenant on Civil and Political Rights (ICCPR) until 1992. 3 Here with reference to the (weakly ratified) Convention on the Protection of the Rights of all Migrant Workers and their Families (ICRMW). 4 One expression of this is the key element in the Global Compact for Migration (and a key challenge to the management of migration), that the human rights of all migrants, regardless of their legal status, have to be respected (see Crépeau 2019, 654). This commitment is already a characterising element of the ICRMW but has proven to be one of the main reasons why this compact has been ratified so weakly. 5 For the quantitative importance of cases of non-refoulement before the UN treaty bodies, see Çalı, Costello, and Cunningham (2020, 356, 359). 6 ECtHR Soering v. the United Kingdom, no. 14038/88, 7.7.1989, para. 83. 7 ECtHR Soering v. the United Kingdom, no. 14038/88, 7.7.1989, paras. 87–88. 8 ECtHR (Grand Chamber) Chahal v. the United Kingdom, no. 22414/93, 15.11.1996, paras. 79-80; ECtHR (Grand Chamber) Saadi v. the United Kingdom, no. 13229/03, 29.1.2008, paras. 137–38. See further the General Comment Nr. 20 (1992) of the United Nations Commission on Human Rights (UNCHR). 9 ECtHR Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, 2.3.2010, para. 120. 10 For a comparable evolution in the case law of the UN Treaty Bodies, see Çalı, Costello, and Cunningham 2020, 370–71. 11 ECtHR Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28.11.2011, paras. 293–96. 12 ECtHR D. v. the United Kingdom, no. 30240/96, 2.5.1997, paras. 52–53. 13 See ECtHR (Grand Chamber) Paposhvili v. Belgium, no. 41738/10, 3.12.2016, para. 169. 14 ECtHR (Grand Chamber) Paposhvili v. Belgium, no. 41738/10, 3.12.2016, para. 185. Also see ECtHR Aswat v. the United Kingdom, no. 17299/12, 16.4.2013, para. 57. 15 ECJ B. / CPAS de Liège, C-233/19, 30.9.2020, para. 46. 16 ECtHR (Grand Chamber), Tarakhel v. Switzerland, no. 29217/12, 4.11.2014, para. 120.

Copernican revolution for immigration law  209 7 Un-Doc. no. CCPR/C/127/D/2728/2016, 24.10.2019. 1 18 The two powerful dissenting opinions to the case corroborate this prediction. 19 ECtHR T.I. v. the United Kingdom, no. 43844/98, 7.3.2000 (decision as to the admissability); ECtHR K.R.S. v. the United Kingdom, no. 32733/08, 2.12.2008 (decision as to the admissability); ECtHR (Grand Chamber) M.S.S. v. Belgium and Greece, no. 30696/09, 21.1.2011, paras. 342–45. 20 ECtHR Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, 17.1.2012, paras. 260–61. 21 HRC Jasin v. Denmark, Un-Doc. CCPR/C/114/D/2360/2014, 25.9.2015, Appendix II Individual opinion of Committee members Shany and Vardzelashvili (concurring), para. 2. 22 ECtHR Mamatkulov and Askarov v. Turkey, nos. 46827/99 and 46951/99, 4.2.2005, para. 205. 23 ECtHR (Grand Chamber) Hirsi Jamaa and Others v. Italy, no. 27765/09, 23.2.2012, para. 178. 24 ECtHR (Grand Chamber), Ilias and Ahmed v. Hungary, no. 47287/15, 21.11.2019, para. 137. 25 US Supreme Court Sale v. Haiti Center Council 113 S. Ct. 2549 (1993). 26 Also see the case law of the CRC in which the interest of states to return migrants is weighed against the best interest of the child which creates a growing degree of protection of families against removal to such different risks as female genital mutilation (CRC R.H.M. v. Denmark, Un.-Doc. CRC/C/86/D/83/2019, 5.3.2021, para. 8.8) risk of discrimination as the mother of the child in question is homosexual (CRC, A.B. v. Finland, Un.-Doc. CRC/C/86/D/51/2018, 5.2.2021, para. 12.6) or the risk of being excluded from the Chinese Hukouregister (CRC M.W.C. v. Denmark, Un.-Doc. CRC/C/85/D/31/2017, 15.10.2020, para. 8.8). 27 CRPD N.L. v. Sweden, Un.-Doc. CRPD/C/23/D/60/2019, 22.10.2020, para. 7.8. 28 ECtHR Abdulaziz, Cabales and Balkandali v. the United Kingdom, no. 9214/80; 9473/81; 9474/81, 28.5.1985, paras. 60-62. 29 As in ECtHR Gül v. Switzerland, no. 23218/94, 19.2.1996, para. 39 and ECtHR Ahmut v. the Netherlands, no. 21702/93, 28.11.1996, para. 71. 30 As in ECtHR (Grand Chamber) Jeunesse v. the Netherlands, no. 12738/10, 3.10.2010, paras. 117, 121. 31 ECtHR Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, 31.1.2006, para. 44. 32 ECtHR Pajić v. Croatia, no. 68453/13, 23.2.2016, para. 84. 33 ECtHR Novruk and others v. Russia, no. 31039/11 etc., 15.3.2016, paras. 111–12. 34 ECtHR Tanda-Muzinga v. France, no. 2260/10, 10.7.2014, para. 76. 35 ECtHR El Ghatet v. Switzerland, no. 56971/10, 8.11.2016, paras. 46–52. 36 For Switzerland, see BGE 143 I 21, 30, E. 5.5.2. 37 For Switzerland, see BGE 135 I 153, 157, E. 2.2.2. 38 ECtHR (Grand Chamber) M.A. v. Denmark, no. 6697/18, 9.7.2021, paras. 193–95. 39 ECtHR (Grand Chamber) Slivenko v. Latvia, no. 48321/99, 9.10.2003, para. 97. 40 See for instance ECtHR Senchishak v. Finland, no. 5049/12, 18.11.2014, paras. 54-56. See further ECHR A.S. v. Switzerland, no. 39350/13, 30.6.2015, para. 49. 41 ECtHR Nasri v. France, no. 19465/92, 13.7.1995, para. 46, as well as partly dissenting opinion Morenilla and concurring opinion Wildhaber. 42 ECtHR (Grand Chamber), Maslov v. Austria, no. 1638/03, 23.6.2008. para. 63. 43 ECtHR (Grand Chamber), Maslov v. Austria, no. 1638/03, 23.6.2008. para. 63. 44 See ECtHR, Beldjoudi v. France, no. 12083/86, 26.31992, Concurring Opinion of Judge Martens, para. 3.

210  Stefan Schlegel 45 ECtHR (Grand Chamber), Maslov v. Austria, no. 1638/03, 23.6.2008. para. 63. Also see ECtHR (Grand Chamber), Üner v. the Netherlands, no. 46410/99, 18.10.2006, para. 59. 46 ECtHR (Grand Chamber), Üner v. the Netherlands, no. 46410/99, 18.10.2006, para. 59. 47 See ECtHR Butt v. Norway, no. 47017/09, 4.12.2012, paras. 84–87. 48 ECtHR Pormes v. the Netherlands, no. 25402/14, 28.7.2020, para. 67; see also the dissenting opinion Ranzoni, joined by Ravarani, paras. 14–18. 49 See ECtHR Nasri v. France, no. 19465/92, 13.7.1995, concurring opinion Wildhaber. 50 Initiated in BGE 144 I 266. See also BGE 138 I 246. 51 BGE 146 I 185. For an earlier influence of the ECtHR case law on the right to private life in Germany, see (Eckertz-Höfer 2008). 52 For an analysis that sets the question of humanitarian visa in the direct continuity of the dynamic of non-refoulement, see De Vylder (2017). 53 ECtHR D. v. the United Kingdom, no. 30240/96, 2.5.1997. 54 Orders of the General Court of the European Union, NF v. European Council (T-192/16, EU:T:2017:128), 28.2.2017, NG v. European Council (T-193/16, EU:T:2017:129), and 28.2.2017, NM v. European Council (T-257/16, EU:T:2017:130) of 28.2.2017. 55 ECJ, Order of the Court (first Chamber) in Joined Cases C 208/17 P to C 210/17 P, 12.09.2018, para. 16. 56 ECtHR (Grand Chamber), Hirsi Jamaa and Others v. Italy, no. 27765/09, 23.2.2012. 57 Also see para. 138 of Opinion of the Advocate General Paolo Mengozzi, Case C-638/16 PPU. 58 ECtHR (Grand Chamber), Hirsi Jamaa and Others v. Italy, no. 27765/09, 23.2.2012, para. 81. 59 Opinion of the Advocate General Paolo Mengozzi, Case C-638/16 PPU (X and X v. Belgium, 2017, para. 3). 60 Opinion of the Advocate General Paolo Mengozzi, Case C-638/16 PPU (X and X v. Belgium, 2017, para. 175). 61 Opinion of the Advocate General Paolo Mengozzi, Case C-638/16 PPU (X and X v. Belgium, 2017, para. 172). 62 ECtHR (Grand Chamber), M.N. and Others v. Belgium, no. 3599/18, 5.3.2020, paras. 112-124. 63 The author quoted does not himself share this opinion and rather settles on the description of a ‘restrictionist turn’. 64 ECtHR (Chamber), N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15, 3.10.2017. 65 ECtHR (Grand Chamber), Hirsi Jamaa and Others v. Italy, no. 27765/09, 23.2.2012. 66 ECtHR (Grand Chamber), N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15, 13.2.2020. 67 See also ECtHR (Grand Chamber), N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15, 13.2.2020, para. 232. 68 ECtHR (Grand Chamber), N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15, 13.2.2020. 69 See, however, ECtHR Asady et.al. v. Slovakia, no. 24917/15, 24.3.2020, joint dissenting opinion Lemmens, Keller and Schembri Orland, paras. 15-23, which worries that the highest threshold for an exception of protection against collective expulsion (Article 4 of Protocol 4) for reprehensible conduct as in N.D. and D.T., where 600 individuals stormed a border fence, is unduly lowered in this case. Aslo see Markard (2020).

Copernican revolution for immigration law  211 70 See in contrast CRC, D. D. v. Spain, Un.-Doc. Nr. CRC/C/80/D/4/2016, 1.2.2019. 71 ECtHR Shahzad v. Hungary, no. 12625/17, 8.7.2021. Also see ECJ (Grand Chamber), Commission v. Hungary, ECLI:EU:C:2020:1029, 17.12.2020. 72 ECtHR D.A. and others v. Poland, 51246/17, 8.7.2021. 73 ECtHR D. v. Bulgaria, no 29447/17, 20.7.2021. 74 ECtHR (Grand Chamber), Hirsi Jamaa and Others v. Italy, no. 27765/09, 23.2.2012, para. 179. 75 ECtHR (Grand Chamber), Khlaifia and Others v. Italy, no. 16483/12, 15.12.2016, para. 185. 76 ECtHR (Grand Chamber), N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15, 13.2.2020, paras. 171 and 221.

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Copernican revolution for immigration law  213 Hongju Koh, Harold. 1994. ‘Reflections on Refoulement and Haiti Centers Council.’ Harvard International Law Journal 35 (1): 1–20. Hruschka, Constantin. 2020. ‘Hot Returns Remain Contrary to the ECHR: ND & NT Before the ECHR.’ Accessed 3 February 2021. https://eumigrationlawblog. eu/hot-returns-remain-contrary-to-the-echr-nd-nt-before-the-echr/. Hujo, Katja. 2019. ‘A Global Social Contract: New Steps Towards a Rights-Based Approach to Migration Governance?‘ Global Social Policy 19 (1–2): 25–28. https://doi.org/10.1177/1468018119849232. Joppke, Christian. 1998. ‘Why Liberal States Accept Unwanted Immigration.’ World Politics 50 (2): 266–93. Kälin, Walter. 1998. ‘Die Allgemeine Erklärung der Menschenrechte: Eine Kopernikanische Wende im Völkerrecht?.’ In Menschenrechte im Umbruch: 50 Jahre Allgemeine Erklärung der Menschenrechte, edited by Heike Alefsen, 5–18. Neuwied: Luchterhand. Kottusch, Peter. 1990. ‘Das Ermessen Der Kantonalen Fremdenpolizei und seine Schranken. Erweiterte Fassung eines am 11. Januar 1990 vor dem Zürcher Juristenverein gehaltenen Referates.’ Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 91: 145–80. Kuhn, Thomas. 1957/2003. The Copernican Revolution. ACLS Humanities E-Book edition. Cambridge, MA: Harvard University Press. http://hdl.handle.net/2027/ heb.05519.0001.001. Kuhn, Thomas S. 1962/2009. The Structure of Scientific Revolutions. 3rd ed. Chicago: Univ. of Chicago Press. Madsen, Mikael Rask, Pola Cebulak, and Micha Wiebusch. 2018. ‘Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts.’ International Journal of Law in Context 14 (2): 197–220. https://doi.org/10.1017/S1744552318000034. Markard, Nora. 2020. ‘A Hole of Unclear Dimensions: Reading ND and NT v. Spain.’ Accessed 3 February 2021. https://eumigrationlawblog. eu/a-hole-of-unclear-dimensions-reading-nd-and-nt-v-spain/. Mathew, Penelope. 2019. ‘Constructive Refoulement.’ In Research Handbook on International Refugee Law, edited by Satvinder S. Juss, 207–23. Research Handbooks in International Law. Cheltenham, UK; Northampton, MA: Edward Elgar Publishing. Moreno-Lax, Violeta. 2012. ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court Versus Extraterritorial Migration Control?‘ Human Rights Law Review 12 (3): 574–98. https://doi.org/10.1093/hrlr/ngs024. Moreno-Lax, Violeta. 2017a. ‘Asylum Visas as an Obligation Under EU Law: Case PPU C-638/16 X, X V État Belge (Part II).’ Accessed 3 February 2021. http:// eumigrationlawblog.eu/asylum-visas-as-an-obligation-under-eu-law-caseppu-c-63816-x-x-v-etat-belge-part-ii/. Moreno-Lax, Violeta. 2017b. ‘The Migration Partnership Framework and the EU-Turkey Deal: Lessons for the Global Compact on Migration Process?‘ In What Is a Compact: Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration, edited by Thomas Gammeltoft-Hansen, Elspeth Guild, Violeta Moreno-Lax, and Marion Panizzon, 27–32. Accessed 16 December 2022. https://ssrn.com/abstract=3051027 or http://dx.doi.org/10.2139/ssrn.3051027 Moyn, Samuel. 2012. The Last Utopia: Human Rights in History. Cambridge, MA: Belknap Press of Harvard Univ. Press.

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9 Migration, neighbourliness, and belonging Steven Scalet

Introduction Families tell stories. Ours always included a history of immigration: from Eastern and Southern Europe to hardscrabble lives in early-to-mid twentieth century coal mines, railroad beds, and small shops in Pennsylvania, to the experiences of children, grandchildren, and great grandchildren charting new paths. Two scholarly perspectives on migration connect with my own experiences. First, at the local level, newcomers and old-timers interact in a regional area, creating an ethos that suggests the possibility of an ethics of good relationships within those contexts (Becerra 2014; Clegg 2006; Gedalof 2009; Greenaway 2018; Kinzel 2010; Hoff 2014; Almond 2016). Second, and more prevalent in the scholarly literature, principles and values guide normative theorising about immigration, borders, treaties, sovereignty, refugee policy, and the mix of local to global jurisdictions (Carens 2016; Fine 2013; Lowe 2019; Mason 2000; Ottonelli 2014; Walzer 1983; Wellman and Cole 2011). One point of view is about the ethics of lived experience; the other about law and policy. A good illustration of both points of view is the tens of thousands of Afghan refugees after the US exit from Afghanistan in 2021.1 On the one hand, Afghans relocate into local communities greeted by on-the-ground local attitudes and interactions as part of these resettlements. On the other hand, theorists, politicians, aspiring politicians, and others express principles and values, and defend legal positions, about the justice of refugee policy. Historical trends frame both perspectives in uneasy ways: the bare geo-politics of the last decade includes politicians who have scapegoated immigrants, stoked xenophobia, and bred nationalist political movements built on anti-immigration rhetoric. Worse, migration conflicts do not appear fleeting, and they signal continuing conflicts to come. Are there suitable exit ramps from political conflicts about migration? This question can motivate political and legal theorists to examine how or if the universalist demands of human rights can coexist with more particularist calls of national sovereignty to control migration flows. In this essay I argue that exit ramps for solving conflict can be more easily conceived by engaging the ethics of local interactions first, and then building bridges to questions of justice and policy. Most scholarly DOI: 10.4324/9781003102717-13

Migration, neighbourliness, and belonging  217 literature begins the other way around and often without extension to local relationships. This chapter examines an alternative method for engaging the ethics of migration—the ethics of local interactions. To do so, section 1 develops a context of newcomers and old-timers in a neighbourhood. Sections 2 and 3 derive an account of belonging and neighbourliness as a virtue. Section 4 then brings the prior analysis together to identify exit ramps from conflicts in migration. Section 5 addresses criticisms about belonging as an ideal and further defends the concept of neighbourliness. Section 6 re-examines the fundamental relationship between an ethics of local interaction and more systemic questions of justice and policy.

9.1 The ethics of newcomers and old-timers Imagine a community where there is no wrong, no injustice in anyone being there. In addition, isolation from newcomers is not an option. Some may wish for a world of no newcomers but that is an unrealistic aspiration. After all, even without migration everyone in a community is no longer alive 125 years later and everyone there counts as a relative newcomer.2 But in addition, imagine a community that includes newcomers from the outside. The context is not whether there is change but how to manage it. The setting is the neighbourhood, the local community, or the regional area, defined as geographical areas where direct interactions could regularly occur. For ease of reference I will refer to this area as the neighbourhood. There are newcomers and old-timers. This designation admits of degrees, an important fact later on, but the distinction is helpful and clear across a range of cases.3 There is no need to describe the nature of the state initially except to re-emphasise a premise that there’s no wrong in anyone being there. To bring more focus to this context, let’s imagine a community where everyone also acknowledges that there is no injustice in the newcomers being there. It’s open-ended whether people like it, want it, have strong emotions about the situation, or believe that it supports or undermines various personal interests. The point of this starting place is to put aside questions about the justice of admissions, until the end. Within this context, consider a significant question: What are the proper relationships among newcomers and old-timers in such circumstances? One answer to that question draws on historically-rich discussions of mutual aid for strangers (Walzer 2011; Rawls 1971, 114–117, 333–342). It’s a traditional answer: no matter what else is true, strangers owe each other mutual aid. But our topic is not about strangers. It’s about newcomers, those who are settling or recently settled in an area. They are in a similar situation to old-timers in that it’s open-ended how long they may stay and there is no reason to presume an interim arrangement. Thus, in this one respect the only difference between newcomers and old-timers is that newcomers are relatively new. The primary cases relevant to this essay are recent immigrants, refugees, and other migratory waves, but the analysis applies generally to persons and families who relocate into a new neighbourhood.

218  Steven Scalet There is another problem with drawing on the literature on mutual aid. It’s typically conceived as a minimal condition of justice among persons. But the framing for this essay is not directly or initially about peoples’ duties and obligations of justice, whether interpreted legally or otherwise. It’s about formulating the proper aspirations of people in their relationships with each other, for creating a good community, when there is no wrong that sets the terms of that relationship.4 This ethical framing is not easily understood by reference to well-defined legal rules, such as the property rights of residency that provide a legal and normative terrain of claims, liberties, powers, immunities.5 These ideas will become relevant below, but here we are in search for appropriate ethical norms with no legal framework that directly leads the way to answers. Ethical frameworks can be more or less suited for a context or challenge at hand. What is needed conceptually to answer the question above? This essay draws on the framework of virtue ethics. In particular, in what follows, I will analyse the concept of belonging in relation to one’s home and neighbourhood for creating a good community, and identify a virtue especially suited for the ethics of relationships in a neighbourhood. The virtue could go by different names (but for ease of expression I will call it ‘neighbourliness’), and the challenge will be to draw out its content. Why does the question about proper relationships matter? First, and this is to be established, coming at immigration debates not initially as questions of justice but as good relationships in community with newcomers and old-timers provides intrinsic insights (Sections 2–3). Second, as referenced above, this approach is fruitful for conceiving of exit ramps in political conflicts over migration policies and politics (Section 4). In this regard, the essay is responsive to the historical moment, as a corrective and engagement with attitudes of xenophobia and nationalist political movements sweeping around the globe. The goal is to re-orient terms of debate to find new exit ramps for resolving conflicts, which reframes concepts that point the way to solutions (Cf. Scheffler 2007, 95). Third, the approach is designed to support questions of justice, law, and policy, to be integrated with accounts of political and legal rights (Sections 5–6). Finally, and importantly, the setting is more realistic than one might suppose. Take Afghan refugees. Even among those who use anti-immigration rhetoric in the abstract, when Afghans arrive in a community, there are many who do not know what to think about the justice of that situation close-up, and so they put those reflections aside. They are most interested in dealing with the very real encounter of new neighbours and what to do, suspending large systemic questions of justice. There are puzzles about the proper attitudes and actions to take in such circumstances.

9.2 Home, neighbourhood, and belonging This section develops an idea of belonging through further contrasts between home and neighbourhood.

Migration, neighbourliness, and belonging  219 When analysing one’s home in terms of residence or place of habitation, the legal property rights typically entail protections with most unconsented to incursions contrary to law. If someone decides to enter someone’s home unexpectedly, without permission, with no emergency reason, you call the police. It’s a bright line: the home entails legal claim-rights against a range of incursions, with strict legal duties on others not to intrude without consent.6 This legal bedrock is often violated, and that underscores a broader normative point. Consider long-term shanty towns or anywhere police protection is absent. When uninvited people intrude into the intimate affairs of daily life within one’s home, there can be a deeply felt sense of wrong or violation (or worse if the law encourages these unjust incursions).7 Improper crossings count as wrongs and injustices, whether or not protected by law and policing. These legal and customary rights support broader philosophical accounts of the nature of the home, such as Kinzel’s emphasis on the human need for space from which to explore the world (Kinzel 2010, 115); and Toner’s definition that home entails a space to achieve security and comfort (2019, 16).8 These brief reflections suggest the following upshots: the normative terrain for demarcating the home is significantly defined through concepts of claim-rights and duties that have normative force independently from their formal inclusion in legal systems. Boundaries are not meant to be a negotiation. Even when they must be negotiated or addressed legally, courts try to define legal boundaries clearly to resolve disputes decisively and typically in the direction of securing the home.9 No doubt new technologies challenge boundaries, and courts reinterpret or reinforce what counts as legally enforceable incursions; but the point is to eliminate the ambiguity that feeds the dispute. So important are these lines that the very act of having to negotiate an incursion, informally and apart from law, can itself be an injustice when the point is to respect a bright line that has been crossed. Contrast this analysis against a neighbourhood. Neighbourhoods often and by design seek to avoid the force and language of claim rights and duties across a range of interactions. These places include streets, parks, shopping centres, markets, athletics fields, hospitals, police stations, public transportation, religious institutions, and other gathering areas, many of which are physically accessible from where people live. Neighbourhoods carve out spheres of liberties often without specifying clear-cut claim-rights or duties that would reduce the extent of those liberties. Further, when neighbours meet on the same street or sidewalk in their daily business, they do not need others’ consent to enter that space; and if they are crowding each other’s space, they are expected to sort the problem themselves—they negotiate the space. In this context personal attitudes and informal norms guide interactions in the absence of bright lines that would eliminate guesswork and negotiation. Finally, unlike in a home where both courts and custom serve to eliminate ambiguities in boundary crossings, the neighbourhood preserves ambiguities and avoids declaring in detail how an interaction ought to proceed.

220  Steven Scalet Important wrongs can and do occur in neighbourhoods, but this fact does not undermine the reality and practice of neighbourhood liberties contrasted against strict duties not to enter others’ home uninvited. If someone was puzzled to identify homes and neighbourhoods in unfamiliar territory, observing these distinctions in legal and customary property rights would provide much insight for identifying which is which. To underscore this point, imagine a world in which the neighbourhood liberties keep shrinking and eventually evaporate. There would be no neighbourhood liberties or powers to allow for negotiation and change; only the boundary-line property rights of the home remain, one home touching the next. Every movement outside one’s own home must have someone’s consent to proceed, or there is injustice. Life becomes all residency—and like a prison. This last point suggests that human functioning requires neighbourhoods as spaces for movement, interaction, exchange, and negotiation; boundaries among individuals are fluid and redrawn, with many individuals jointly negotiating interaction. The place of habitation, by contrast, requires separation, bright lines, stability, and limited negotiation, with the resident alone exercising the power to remove that separation. Intriguing grey areas and exceptions could deepen the analysis but their exceptional nature highlights and supports the basic contrast. Boundaries are a core feature of homes, which connect with what homes are for (e.g., they provide comfort and security). By contrast, boundaries are not a core feature of neighbourhoods: many neighbourhoods do not have well-defined boundaries even if some do. The difference is explained by the fact that homes and neighbourhoods typically serve different functions for humans living together (Cf. Walzer 1983, ch. 2). Consider two further upshots generated by this analysis. First, an earlier premise can now be stated more precisely: we are imagining no injustices entailed by the fact that people (a) have a home and (b) jointly participate in neighbourhood interactions. Homes are places where people can’t just be there uninvited, sitting on the sofa. Neighbourhoods are places with norms and patterns of interaction where people can just be there, uninvited by the particular individuals where interactions will occur, in the marketplace, streets, parks, businesses, municipal buildings, etc. These distinctions will matter for the discussion of belonging. Second, some people apply the notion of home to describe the neighbourhood: the neighbourhood is my home. At one level this idea is intuitive and conveys emotional ties outside the residence, an idea presumed below. But there is a significant problem revealed by the preceding discussion. In using the concept of ‘home’ to describe the neighbourhood, those who interact in this ‘home’ uninvited would create immediate wrongs. An expansive application and equivalence of ‘home’ and ‘neighbourhood’ has a subtext of transferring the property rights of home into the conceptual and normative understanding of neighbourhoods. These implications may be easily overlooked, but they are far-reaching. An expansive use of ‘home’ makes it far more difficult (or impossible) to create exit ramps from conflicts in migration

Migration, neighbourliness, and belonging  221 (below), and it elides the fundamental distinctions pressed in this section. Thus, the argument below must capture the proper emotional ties developed in a neighbourhood without maintaining that the neighbourhood is literally the home. Relatedly, some extend the metaphor of home to describe the entire nation as a home, which is just as or more problematic, a concern for the last section on policy. Returning to neighbourhoods, Becerra creates two informative case studies that illustrate the core feature of negotiation within neighbourhoods. In the first case she writes, you can walk through New York City and find the public parks filled with soccer players from Latin America …. The scene is likely to be accompanied by the cheerful shouts of fans … food vendors offering delicacies from Latin America; and children running amok. (Becerra 2014, 332) In the second case, you might find … a parade celebrating one of the many ethnic groups that has made the city their residence [with] all sorts of flags waving … accompanied by music that blends with the sounds of honking cars, rushing trains, and the bustle of busy shoppers. (332) Soccer and parades are not marginal events in New York City, and they represent one of countless ways that newcomers and old-timers come into contact. She observes: ‘far from a celebration of diversity, these public displays—performances—are contested affairs’ (332). In the case of soccer, established immigrant Irish soccer players occupied a park through legal permits; it seemed that they did not like or want the newly forming Mexican teams to join. This contestation led the Mexican teams to play soccer on other unoccupied (non-soccer) fields without formal permits, out-of-the-way from the official league or police. This informal adjustment marked a transition that persisted for four years, without explicit conflict and hostility. Eventually, the size and scope of the Mexican teams grew to an extent that police asked the Mexican players to seek permits for that space rather than disband the unauthorised playing that had become highly public; in this way, through negotiations over time, the Mexican teams eventually became formally and publicly absorbed into the neighbourhood activities of the park. Moving to parades, which have been part of New York City’s culture dating back to the nineteenth century, Becerra documents various negotiations and contestations that enabled recent Mexican parades in the public streets of New York City. Mexican parades convey the ‘overcoming of obstacles’ for newcomers (346); they create public recognition that new residents are here to stay (346); and they reveal a process of ‘back-and-forth negotiation’ (352).

222  Steven Scalet These case studies highlight two ideas central for this essay. First, they illustrate legal and customary pathways that guide a range of liberties. Over time, these liberties can and did assist and normalise the interactions of newcomers and old-timers in publicly recognisable ways. Second—and this is a primary thesis of her essay—neighbourhood negotiations like these are negotiations for creating a sense of belonging in a community, an important normative concept often invoked in political discussions. In fact, a range of scholars express the value of political community in terms of belonging. For example, Lowe analyses a ‘right to belong’ as both a human right and a requirement of human flourishing in community. Drawing on Hannah Arendt, John Dewey, and others, Lowe argues that a need to belong should be at the foundation of any political theory for addressing undocumented immigrants (Lowe 2019). To take another example, Andrew Mason’s Community, Solidarity, and Belonging places an idea of belonging at the centre of a political analysis about the state’s role for its promotion (2000) Most notably in the influential work of Joseph Carens, an idea of belonging is also sometimes connected to democratic values. Carens argues that states that include long-term residents who come to belong must also be offered legal citizenship rights—anything less is unjust and violates basic democratic values (2005, 2013). In these and other cases, ideas about belonging become part of a political argument to clarify the rights and obligations of the state. Moreover, the notion of belonging is analysed in terms of one’s relationship to a nation. For example, Tsolidis analyses social belonging as the ‘coming together around shared understandings’ and applies these ideas to ‘mateship’ and ‘Australianness’, which directly connects to debates about social cohesion, nationhood, citizenship tests, and identity politics (Tsolidis 2010, 450; Heyes 2020). This scholarship mostly contrasts against the analysis of this essay, which is about the ethics of interaction at the local—not national—level, and precisely when no rights or duties are in dispute. Most scholarship applies a political idea of belonging for defending relevant rights and duties of the state at the national level.10 However, there is one notable commonality, made clear by distinguishing three claims relevant to political debates about belonging: (1) citizenship is necessary and sufficient for belonging; (2) citizenship is necessary but not sufficient for belonging—that is, belonging is a separate positive result that may or may not occur and depends on additional factors; (3) citizenship is neither necessary nor sufficient for belonging, because belonging defines peoples’ relationships in a community independently from questions of citizenship. Most political discussions appear to endorse (2) or (3), and at least allow for and sometimes require the possibility of (3). To cite one example, Carens would seemingly agree that belonging is a pre-political concept at its root. He discusses conditions of ‘social membership’ that can and should be recognised as a condition on legal and political claims (Carens 2013). Similarly, this essay focuses on (3)—a social notion of belonging.11

Migration, neighbourliness, and belonging  223 What is it to belong in a community? First, belonging can be understood as a psychological attitude. To say that ‘I belong here’ can mean that I feel something: that living in a place is right for me (and nothing more is needed than having that feeling, to belong). Second, belonging can be understood as a relational concept: the community displays various social facts about relationships within that community, and when they are properly characterised, those facts constitute people as belonging there. Combining these, belonging is an aspiration for individuals in community to perceive the reality of their relationships in a certain way. Belonging includes both psychological attitudes and social facts about the nature and quality of relationships. The discussion of mutual aid identifies a boundary case: it can be true that there is no wrong in people residing in a community, but if they only experience relationships that offer the bare minimum of mutual aid—what any stranger would receive who is not living there—there is not yet belonging. The relationship must be greater than mere mutual aid. Let’s consider this point more closely. Let’s define a community as constituted by people living in homes in a neighbourhood, and a good community as including people living there who have a sense of belonging in that community. People belong in that community depending on two sets of social facts (a) having a home and (b) being in certain types of neighbourhood relationships. This essay puts aside further analysis of home to focus instead on one crucial component of belonging—relationships in the neighbourhood. On the structure of this analysis, neighbourhood relationships should foster a sense of belonging to create a good community. This type of belonging is partly psychological and ties to the concept of an opportunity (Westen 1985). To have an opportunity is something less than a guarantee but more than a mere possibility. Similarly, the question of good community is about neighbourhood relationships that create less than a guarantee for belonging but more than its mere possibility. These relationships are not a guarantee because a full account of belonging requires more than neighbourhood relationships; in addition, a particular individual may choose not to belong. However, good communities do more than create the mere possibility of belonging; they create fertile grounds for its development.12 What type of neighbourhood relationships create opportunities for belonging? Section 4 below provides an answer to that question. The rest of this section clarifies why a virtue ethics approach fits the context for the question; and it lists criteria of success for any virtue-based account relevant to the problem of migration. Goodness of fit with virtue ethics. First, a core feature of neighbourhoods are the liberties that require individual negotiations among those residing in a community. These negotiations impact the quality of those relationships. As noted above, literature in political theory typically drives toward conclusions about legal and political rights that are fitting for communities. Within the liberal tradition, this approach typically draws on values of freedom and equality, variously framed in deontic or consequentialist terms. Carens’ The Ethics of Immigration is the leading and illuminating exemplar

224  Steven Scalet of this approach. This approach identifies (democratic) values for justifying political and legal rights relevant to immigration. Afterward, these ideas then apply at the ground level for interpersonal conduct. But what is there to say when ground-level interactions are not about legal or political rights? Given the liberties that take place daily in every neighbourhood across the globe, is there further substantive ethical guidance? If not about rights and duties, then what? Virtue ethics is especially suited for aspirational accounts in ethics; in this case, the aspirations and attitudes for good relationships among newcomers and old-timers living in neighbourhoods, with questions of law and justice aside. This aspirational quality is, and can be, joined with migration studies in phenomenology and feminist scholarship (e.g., Gedalof 2009; Lowe 2019). The presumption of no injustice is a device to focus attention on aspirational ethical content, which is as fundamental to practical reasoning as thinking through minimum standards of justice. The analysis of proper neighbourhood relationships provides especially rich grounds for an application of virtue ethics. Second, this orientation focuses attention on virtue of character for living in a neighbourhood—an easily overlooked component in the ethics of migration. This orientation is not directly about individual action; nor is it directly about the ethos, norms, or general culture of a community (though both are related). It’s about the development of a virtuous character for individual people living in a community. Third, it’s helpful to distinguish what belonging attaches to from its content. This essay provides an account of what belonging attaches to: someone can come to belong to a neighbourhood when they have a home and when neighbourhood relationships are of a certain quality. An important part of the content of belonging is then provided through the virtue associated with those neighbourhood relationships. Thus, for those who believe that belonging matters for the ethics of migration, then virtue ethics provides a fundamental mechanism for deriving its content. Criteria of success for a virtue ethics of migration. Bringing the pieces together, the preceding analysis suggests that any virtue-based account for the problem of migration adds depth and completeness the extent to which it can address: (a) the context of newcomers living in the same area as long-established residents; (b) an idea of belonging as both a psychological attitude and set of social facts; (c) opportunities for newcomers and old-timers to belong to a neighbourhood and the relevant virtue of character that facilitates belonging; (d) an ethical guide for how people should manage inevitable changes that communities undergo when newcomers arrive; (e) how the relevant virtue involves more than mutual aid; (f) how the relevant virtue creates exit ramps for resolving migration conflicts;

Migration, neighbourliness, and belonging  225 ( g) how this framework can integrate with questions of rights and justice; (h) how a specific form of belonging may be relative to a neighbourhood but at the same time the idea applies cross-regionally or universally. This section concludes one objective of the essay, which is to provide a normative and conceptual framework relevant to addressing problems of migration. Aside from further arguments below about the content of the virtue, the analysis above highlights that applying virtue ethics to migration requires this or some similar background framing.

9.3 Neighbourliness In the Nicomachean Ethics, Aristotle introduces the metaphor of an archer who hopes to hit a target (Aristotle 2019, 1094a23–25). Targets typically include concentric circles that show the many directions and the degree to which the archer can miss the mark. Aristotle uses this imagery to motivate the study of the highest good; this metaphor is also useful for conceiving of each individual virtue, which is an intermediate state (which hits the mark) that avoids extreme states (that miss the mark in potentially many directions and to varying degrees). Imagine now a target far enough away that it’s difficult to see the bullseye clearly but easy to see the target as a whole. At the core of virtue ethics is a practical method to identify the extreme states— vices that miss the mark—which then enables an improved understanding of the boundaries of the virtue. There is much to say theoretically on behalf of this method, but the essay applies the method and determines what it yields. The challenge is to identify the content of a virtue relevant to negotiating public spaces in a neighbourhood among newcomers and old-timers, drawing on the framework introduced above. A virtue of character identifies a person’s dispositional state that tends toward fitting thinking, feeling, and action. This virtue structures the relationships that develop among newcomers and old-timers, habits of heart and mind that frame how they see the reality of interactions in a neighbourhood. I will proceed by drawing a series of contrasts. Let’s start with the perspective of old-timers. At one extreme, old-timers may exude hostile indifference to newcomers. Old-timers may wrongly act like the neighbourhood is their home. Drawing on the framework above, even if they grant that newcomers’ presence is not unjust, still, they may wrongly liken newcomers to unwelcome guests in the home that they can’t be rid of soon enough. They incorrectly perceive what a neighbourhood is, or more exactly—what it is not. It is, in fact, not the home. At the other extreme some old-timers may be over solicitous to newcomers. They may treat newcomers like a wonderful relative who visits their home. They may frequently interrupt or expect newcomers to engage in deep personal conversation in public spaces, with solicitations and sharing more typical of home-life. This may be well-intentioned or not; over-enthusiasm, obsequiousness, or intrusiveness may variously describe the situation. Whether too

226  Steven Scalet much or too little, both sets of attitudes are extremes defined by old-timers who mistakenly perceive the neighbourhood to be ‘their’ home and forming expectations and attitudes on that premise. Within actual homes, these interactions with guests, depending on the circumstances, may be suitable and part of the virtues for home-life. But newcomers are not guests within the home. That is the first point. They are permanent residents living in a neighbourhood. As a neighbourhood virtue, we seek an intermediate state between hostile indifference and over-solicitation in ways that avoid these extremes, which are grounded in mistaken perceptions. For example, a new vendor opens alongside others in a bustling downtown market, selling fruits and vegetables typical of the area; and the owners are newcomers to the region. Their stand may sit empty for that reason, with hostile indifference from those who will not buy the produce, with an attitude that newcomers should not think of the space as theirs to sell produce, when it is perfectly legitimate that they do so. At the other extreme, some may approach the stand with an overly intrusive encounter, peppering newcomers with perhaps well-intentioned but overly demanding questions to share intimate details only appropriate with friends or in the home. The intermediate state avoids caring too little or too much that they are newcomers with a new stand, and to carry on with a neighbourly transaction. There are two points to emphasise about this method of analysis. First: old-timers can get closer to the virtuous mark of neighbourliness by learning from mistakes, a practical and useful method when the intermediate state requires judgment and is not immediately apparent. The bare recognition that there can be extremes can enable reflection and deliberation about the content of the virtue; for example, that the marketplace is not really a home and prior interactions were premised on subconsciously ignoring that distinction. The content of the extremes admits of some cultural variation as well, to be discussed below, but the requirement that virtuous old-timers engage a process to find the intermediate state is not. A first step in becoming virtuous is recognising that there can be extremes and reflecting on one’s relative position. Second, an initial focus on old-timers is not by accident. Newcomers and old-timers experience a power differential: old-timers know the patterns and norms of behaviour in a neighbourhood that newcomers do not yet know. This epistemic difference creates a power difference that can lead newcomers to experience vulnerability and humiliation as they learn how to do things in a new neighbourhood. Old-timers recognise this power difference by seeing themselves as first-movers in targeting the intermediate state. Consider: a new vendor opens in a market with newcomers that look and act a bit differently, and you notice that few people are going there. Or: a newcomer has lived in a neighbourhood for several years and you notice that you’ve never said hello though you easily initiate conversation with old-timers. Or: you notice that neighbourhood newcomers with children never visit the playgrounds at public parks that old-timers use all the time. These examples

Migration, neighbourliness, and belonging  227 highlight that differential interaction between newcomers and old-timers may occur without any relevant reasons to justify this difference other than the uncertainty of the interaction associated with that person being a newcomer. Generally, first-movers are people who have reason to act first. In these examples and others, old-timers have reason to be first-movers by recognising their differential knowledge from newcomers in a neighbourhood. The first move is a type of caring, a way to be neighbourly: they try the new stand, they say hello to someone new, they invite new neighbours to join them at a local park (cf. Lowe 2019, 278–279). Being a first-mover is part of the habit of neighbourliness. Thus, the intermediate state between hostile indifference and over-solicitation includes a type of caring to be a first mover when newcomers arrive.13 Let’s now take the point of view of newcomers. They are second movers in the relationship. At the extremes, newcomers can miss the mark with a similar set of attitudes that may have led some old-timers astray. Newcomers may greet the first-moves of old-timers with hostile indifference and self-isolation; or at the other extreme they may be overly responsive or servile. In both cases newcomers may miss the mark because they wrongly treat the neighbourhood as the old-timers’ home. Thus, the neighbourliness of newcomers is an intermediate state that is properly responsive to the neighbourliness of old-timers. It may be tempting to say that neighbourliness is a demand of reciprocity, but that claim is misleading in this context if understood as a condition of justice.14 There is no injustice if the first mover fails to act, or the second mover fails to respond. Rather, there is a moral loss. The neighbours are free to retreat into their homes. The neighbours lack neighbourliness, and the grounds for belonging diminish.15 This analysis reveals the complexity of the virtue: when each party has this virtue, it creates relational attitudes between newcomers and old-timers that establish proper expectations (Cf. Rajendra 2015, 536; Lowe 2019, 277). Consider next a second set of contrasts to develop additional content for these relational attitudes, which draws again on the framework above. First, newcomers and old-timers may apply a principle of mutual aid to each other. Mutual aid is an important ideal, but it fails as an account of neighbourliness because it does not differentiate attitudes for neighbours distinct from attitudes for strangers who have no connection to the neighbourhood. Expectations of mutual aid are not enough. Second, and in the opposite direction, are attitudes of friendship. Complete friendship is an important ideal, too, as Aristotle emphasises, but individuals can only expect friendships with limited numbers of people across a life-time (Aristotle 2019, 1072b). For this reason and others, the ideal of friendship over-reaches as a shared expectation in the neighbourhood—neighbourliness implies less. What is in-between? The general answer is the shared expectations that create belonging. An attempt at neighbourliness to facilitate a community of belonging will miss the mark when people settle for mere mutual aid or directly expect friendship.

228  Steven Scalet Consider a mail carrier that delivers mail to residents’ home—familiar territory—and one day notices a pet who escaped from a home, hiding under a stoop. The mail carrier sees the homeowner scrambling to find the pet; and though inconvenient, reaches out to let the homeowner know where the pet is. A variation: suppose that one day the mail carrier notices that a pet has died in the street with a grieving homeowner trying to figure out what to do. Although inconvenient, the mail carrier offers condolences and asks if there’s a way to be helpful. In both cases, at a later date, the homeowner writes a thank you card to the mail carrier. These acts go beyond mutual aid, and they are not questions of justice; but there is no supposition of friendship. These examples highlight that neighbourliness is at once modest yet uplifting. It’s by no means easy to come by and maintain. Drawing on the previous section, it’s worth noting that neighbourliness connects with belonging but does not guarantee that the pet homeowner will feel a sense of belonging through actions such as the mail carrier’s; rather, actions that derive from neighbourliness create fertile grounds for its development. Neighbourliness becomes a core feature of a larger idea of belonging that includes social facts about having a safe and stable home within a culture of neighbourliness.16 Given the complexity of neighbourliness, some particular newcomer or old-timer may lack neighbourliness and thereby fail at the individual level to experience belonging, even as others do. These variables are a strength of this account insofar as they convey underlying realities of how communities function. Whether a community of belonging can be stable over time becomes a hypothesis to be tested through experience. This idea reinforces an opening claim of the essay, that communities must manage change one way or the other. When old-timers and newcomers share in neighbourliness, they share in a virtue, which identifies dispositions that, for any individual, are thoughts, feelings, and habits that persist over time and cut across significant portions of a lifetime. In this way grounding belonging through a virtue of character supports community stability, a notable feature of this account. A community can gravitate from one equilibrium to another, however. A loss of neighbourliness can shatter a sense of belonging into patterns of mere mutual aid; or, alternatively, a community that had lost but then restores safe and stable homes can reverse a retreat and recreate neighbourliness (Lowe 2019, 277–278). Relationships could move further toward friendships beyond neighbourliness.17 As applied above, a homeowner could misinterpret the mail carrier’s intentions, leading each to retreat, but a happier outcome is possible too: the homeowner’s gratitude could extend into friendship. These ideas suggest a third set of contrasts for deriving additional content to the virtue of neighbourliness: attitudes about change. Community stability is always a dynamic equilibrium with continuous internal changes, including the mix of newcomers and old-timers. Some residents may want a neighbourhood to undergo no change at all. Others may want radical change.

Migration, neighbourliness, and belonging  229 On the scale of adaptability, these points are extremes. The intermediate state seeks the better within what is already present (Greenaway 2018); recognises the inevitability of change with the creation of new meanings (Becerra 2014); and balances patterns of cultural repetition and innovation.18 Neighbourliness is a virtue that seeks proper adaptability for belonging in the face of inevitable change.19 Some old-timers may seem more likely to error on wanting less change, worried that they will feel like strangers in their old neighbourhood. Some newcomers may seem more likely to error on wanting more change, worried that they will feel like strangers in their new neighbourhood. Virtuous neighbours know that perceptions depend on where people stand. How is this to be negotiated? In the face of newcomers and old-timers, neighbourliness is a virtue that entails a specific shared desire: to avoid the extremes and find the proper amount of change for creating belonging, with negotiations shaped by the community’s existing ethos. At the extremes, across these contrasts, lurk vices along several dimensions, only some of which are identified above: hostile indifference that could identify xenophobic or isolationist attitudes; over-solicitation that could identify bullies or busy-bodies; unyielding traditionalists who fight every change or radicals who discount all of existing community life. Some may miss the mark in innocent ways, such as social introverts or the overly inquisitive. Other misses may be more wide-spread and vicious: racial bigotry, cruel exclusions, or seeing newcomers as permanent strangers (Tsolidis 2010). It’s possible to miss the mark in many ways, as in archery. For example, cruelty towards others may result from those who wrongly perceive injustices that are not there. Further, lack of empathy and the desire for domination may drive lack of neighbourliness into something far worse: a Hobbesian war of all against all. But the link between neighbourliness and the nature of justice will come later; the current discussion is premised on a community without injustice, with the aim to identify an ethics of local interaction in that context. The ethical component is not merely neighbourly actions but recognising the ethical worth of asking questions that otherwise might or would go unasked—and then providing answers. Am I hitting the mark on being neighbourly consistent with my vision of a good human life for myself and for others? What is too neighbourly? What is not neighbourly enough? How does that fit into a vision of belonging for creating a good community? The reflective process and full content can only be filled in by those living in the community, and communities will vary on these details; but general conclusions apply generally: everywhere and anywhere, individuals who do not cultivate a virtue of neighbourliness are missing the mark in ways that undermine belonging, good community, and well-lived lives. This approach allows for the intuitive point that an ethics of local interaction offers both a general framing but admits of significant cultural variation depending on the temper of a community. On this point, when people travel and see that answers vary, they learn many ways to answer these questions; they bring home new insights. These insights may expand their imagination of good lives; or sharpen their judgments about what to avoid. The argument is that people

230  Steven Scalet seek to learn how to live well not abstractly but through participation. There is no premise of thoroughgoing ethical constructivism or relativism in virtue ethics. There is the practical task of finding reliable methods for coming to know how to live well. Section 6 below addresses this epistemic question in relation to methods of knowing what justice requires. This discussion closes the basic account of neighbourliness. Is it possible to identify an individual virtue of character for negotiating neighbourhood relationships, in a community with newcomers and old-timers? Yes, neighbourliness is a characteristic set of thoughts, feelings and attitudes relevant for both newcomers and old-timers—it’s not a one-way street. Old-timers want to be first-movers and newcomers want to be second-movers to return neighbourliness. They avoid hostile indifference or over-solicitation. They hope for and seek relations beyond mutual aid but without presuming friendship. They want to properly adapt to community change to maintain or create belonging. They develop an internal compass, a character, to find this intermediate state that suits their community—a stable disposition that anchors and supports a good community where all residents have the opportunity to belong. What should we call the virtue? Neighbourliness has the advantage of emphasising common meanings and the proper context: the neighbourhood. Supplemental terms may also be appropriate in other cultures and languages.20 One term worth noting is ‘hospitality’, an historically resonant concept that touches on several ideas in this essay. The root term in ‘hospital’ is revealing, identifying a place for those who need and those who give care. Those within hospitals rightly expect more than mutual aid but less than friendship; there are first-movers and second-movers; breakdowns occurs with hostile indifference or over-solicitation. Applied elsewhere, we sometimes describe the earth as ‘hospitable’ for gardening or describe a person as ‘hospitable’ to a new idea, which evokes the way neighbourliness can open pathways and opportunities for belonging. But the general term is also misleading for this essay, as it typically applies to short-term relationships among strangers (as in hospitals, or hotel lobbies, or visitors from out of town). Immanuel Kant in particular discusses hospitality as a duty of justice toward strangers (Kant 1983). One could combine both terms, as in ‘neighbourly hospitality’, but for simplicity and to avoid confusion, the virtue will be called neighbourliness. Consider three closing thoughts on this analysis. First, as a general matter, virtues tend to be mutually supportive. The virtue of justice supports mutual aid; justice implies respect for newcomers having homes that are safe and secure, and much else. We could say that it’s not neighbourly to violate newcomers’ homes; but more to the point, it’s unjust. Virtues are distinct conceptually but connect in experience. Breakdowns in neighbourliness may lead to breakdowns in justice beyond the loss of belonging or the lost potential for friendships. Nurturing neighbourliness can build up virtues, as well as justice, whether understood as a virtue or as a liberal constraint on the pursuit of the good, as discussed below.

Migration, neighbourliness, and belonging  231 Second, this section offers conceptual scaffolding without a further study of the cultural setting and institutions that help cultivate neighbourliness. In ‘The Role of Social Justice Education’, Malsbary and Torress write about social justice education that helps people from diverse backgrounds learn how to work together. They advocate for globally oriented curriculum, native language support, and various clubs that could be a training ground for virtue. The conceptual scaffolding in this essay serves to stand alongside further studies of the ways that families, schools, religious organisations, and civil societies can help cultivate a virtue of neighbourliness that can take root in a community. Third, the discussion frames and highlights the importance of the following question: what reasons do people have to be neighbourly? It’s a variation on the fundamental question: Why be moral?

9.4 Exit ramps from conflict The essay began by asking: Are there suitable exit ramps from current and future political conflicts about migration? To seek ‘exit ramps’ is to ask whether there are reasons that can be shared within a community—among newcomers and old-timers—that can diffuse and resolve conflicts over migration. One test of the normative framework above is to examine its resources for identifying suitable exit ramps. To illustrate why exit ramps are a challenge, Joseph Carens writes, ‘What makes the issue of refugees especially difficult is that it involves a deep conflict between interests and morality’ (Carens 2013, 222). Morality requires that local populations treat refugees in ways that generate refugee rights, citizenship duties, and demands of justice; but, these same populations, even in rich democratic states, lack compelling interests to treat them in ways that morality demands. If local populations lack interests in doing as morality commands, conflict ensues. He is pessimistic of any resolution to this conflict: ‘Needless to say, I hope that my pessimism is misplaced’ (Carens 2013, 224). This approach highlights how morality is interpreted as a search for rights and duties that contrast against non-moral interests, which identify peoples’ motivating reasons to act. However, this conceptual framing may be a source of conflict rather than a reporting of what the conflict is. This contrast may obscure practical ways to find suitable exit ramps from conflicts over migration. Sceptical people who are told to conform to a scheme of rights and duties may be more likely to rebuff it, for the very reason of its framing as a set of moral demands distinct from and (in this case) divergent from a concept of interests. It can be worthwhile to highlight how an alternative approach sketched in this essay, based as it is in virtue ethics, resists this distinction. Let’s consider a different normative path that reveals three important exit ramps. Exit Ramp 1: mind the gap between morality and interests. The virtue ethics tradition replaces the distinction between morality and interests with:

232  Steven Scalet the concept of living a good life with the virtues that facilitate this life. Thus, the reason to be neighbourly is not that it’s a duty of morality but that neighbourliness facilitates the living of a good life. It’s a virtue for the person who is neighbourly. A signature practical problem for a moral account of rights is that, after specifying them, it’s an open and possibly intractable question why people would be motivated to follow them if they do not conform to their interests. No doubt there can be great value clearly distinguishing morality and self-interest, but traditions of virtue ethics de-emphasise this distinction, and we can consider its value here. When newcomers and old-timers successfully live together, the achievement is partly conceptual and relational: an experience of sharing reasons, feelings, and actions that lead to virtue. It’s a mistake to think that the reasons to be neighbourly must identify either self-interested or other-regarding reasons. Neighbourliness expresses relations for participating in goodness, as the good for each person practicing it, which is normative without reducing to the concept of that person’s interests. Those who lack neighbourliness have reason to worry about becoming less virtuous and experiencing a worse life. They have reason to resist natural impulses to rebuff those who are unfamiliar to them. A virtue account speaks to alignment: as someone gets closer to hitting the intermediate state, that person gets closer to achieving a well-lived life. Ethics entails immersive training in a skill to be neighbourly and success is understood to make for a better life. Thus, for old-timers and newcomers, the most fundamental (and first) exit ramp is to imagine this different conceptual understanding of reasons. Reasons are about showing how neighbourliness constitutes part of experiencing a good life. The exit ramp is to live through this different normative space, with its potential to reconcile what otherwise is framed as a gap between competing and perhaps intractable moral and interest-based reasons. Being neighbourly isn’t a demand of justice; there is no wrong in rejecting it, and retreat into the home is always a possibility. But why be neighbourly? Because it’s a better life for the person participating in it. Yes, but is that true? It’s not for the essay to answer that question; it’s for those in communities to explain and show why that is so. To do so is to start walking on an exit ramp from conflicts over migration. Exit Ramp 2: how to characterise the value of belonging. The analysis of belonging provides a second exit ramp. A community of belonging is a public good—a collective result of neighbourliness. Often presented as a ‘right to belong’ within political debates, this chapter distinguishes this claim from belonging as part of a good life for those who experience it. Belonging identifies a social good, like friendship itself, that contributes to an individual’s experience of a well-lived life. Thus, neighbourliness is both valuable in itself and facilitates belonging, which is also part of experiencing a good life. Without belonging, people still have reason to be neighbourly; but because neighbourliness can create belonging, there is now a second exit ramp from conflict—an additional reason to exit and resolve conflict. As in the discussion of the first exit ramp,

Migration, neighbourliness, and belonging  233 some may import the language of enlightened self-interest to explain the value of belonging, but once again that understanding of reasons does not identify the exit ramp. It’s notable that as a public good (to be discussed further below) belonging is more fragile to create and maintain, depending on additional factors, and is more subject to distortion, than neighbourliness. But it remains an important reason to exit conflict: living in such a community is part of a good life. Exit Ramp 3: negotiating aspirations in ethics. Justice does not exhaust the normative space for analysing the ethics of migration. Approaches centred on political values can hide the space that this essay highlights: ethical reasons for acting that are not justice-based. Life may go better by being neighbourly without being about justice, which creates reasons for individual community members to cultivate it. This point does not deny that an account of justice is required for a community; instead, the point is about finding ways to engage the ethics of migration, other than through justice, which becomes itself a (third) exit ramp. The point of bracketing considerations of justice in this essay is precisely to offer a method for identifying these reasons.21 Consider, then, a third exit ramp that draws from the previous two to complete the argument. People know that there ought to be some discretion in how to pursue neighbourhood interactions. Community members find an exit ramp by negotiating this discretion in terms of creating good lives rather than in terms of justice. Framing conflict in terms of rights and duties can crowd out this negotiation, replacing what could be negotiable with rigid conflict. For example, newcomers arrive; old-timers experience discord regarding the changes that may occur. Without neighbourliness, what recourse is available? They seek redress and resolution through a fraught political process that defines legal rights and duties. They may win, they may lose. This approach has an analogue: there are bright lines for the boundaries of a home, and courts serve as exit ramps in conflicts over trespass. These are exit ramps in a realm of justice, and it’s appropriate for courts to adjudicate home incursions. But what about interactions in the neighbourhood? If neighbourhood interactions are not raising questions of justice, as presumed in this essay, then treating the issue as if it were about justice cloaks rather than facilitates an exit ramp. An alternative view is offered by old-timers mixing with newcomers in a community of managed adaptation, sharing a desire to maintain a public good of belonging across time. Being neighbourly motivates a desire to find reasons to negotiate that are not justice-based. These reasons derive from a virtue, implying personal integrity and stability—a consistency across thought, feeling, and action—that builds trust, good will, and stable expectations. Practising this virtue facilitates belonging for securing a good community. Conflicts in migration are conflicts about what? One answer is to identify the tension between universalist demands of human rights and calls for national sovereignty. Note how this framing already presumes a normative

234  Steven Scalet space of justice for understanding what the conflict is. An alternative is to address how neighbourliness and belonging address migration conflicts, beginning with an ethics of local interaction for perceiving how exit ramps for resolving conflicts are more likely to follow. What reasons do old-timers have to adapt to adjust their ‘imagined’ community and embrace new neighbourhood meanings (Becerra 2014, 338)? They have reason to build character and participate in a community that enables them to live well together. The pursuit of neighbourliness and belonging signals how communities themselves create exit ramps as they fill in content and detail (cf. Buchanan 2013). Neighbourliness is a way to interact, a way to create aspirational meanings and belonging in practice, as newcomers and old-timers walk down an exit ramp from conflict. The paper has now achieved a primary objective: to describe productive ways to think about exit ramps from migration conflicts. Next, the essay considers additional problems with the concept of belonging, other attractions and limitations of virtue ethics applied to migration conflicts, and further discussion of justice and policy.

9.5 Problems with belonging and prospects for neighbourliness It’s notable to distinguish the account of belonging here from other uses and to highlight its advantages. Consider three general criticisms. First, even if belonging seems important intuitively, belonging may be too amorphous and unclear conceptually for application to the ethics of migration. Second, the notion may be morally suspect, especially in current geo-political conflicts over migration. This point catches the attention of some democratic theorists in the liberal tradition.22 The very idea of belonging can fuel xenophobia. If I index my sense of belonging to the entire culture or nation, then am I entitled to restrict others in how they live so as not to violate my own sense of belonging? This question is reminiscent of Robert Nozick’s example of mixing one’s glass of tomato juice in the ocean and asking whether that creates a legitimate claim to own the ocean (Nozick 1974, 175). The reach of belonging now becomes the source of conflict rather than its buffer: old-timers identify with belonging to a nation, as they conceive it; newcomers (perhaps refugees) claim a right to belong somewhere as old-timers look on warily. A third criticism of the idea of belonging can be posed as a question: What if some people don’t want to belong? What if they are, or want to be, misfits to a national project of belonging (Ottonelli 2014, 585–586)? However applicable these criticisms in general, belonging on the account in this essay is not conceived as a national project. Belonging derives from neighbourliness, which is about local interactions. The nation is not a neighbourhood. Second, and relatedly, neighbourliness does not describe an abstract or amorphous idea, ideology, or shared understanding. It refers to a virtue for engaging actual neighbourhood relationships—a realistic aspiration for newcomers and old-timers living together. Neighbourliness is more

Migration, neighbourliness, and belonging  235 than mere co-existence, with ties thicker than mutual aid but thinner than friendship (the previous sections provide further details). Abstract extensions of belonging to an idea of a nation engage a different topic, such as Tsolidis’s treatment of mateship associated with Australianness. Whether patriotism and national identity describe virtues at all is a part of that different topic (Tsolidis, 2010).23 It’s also worth noting that on the account presented here, people who do not want to belong are at liberty not to belong. They are at liberty not to be neighbourly. This essay is not about grounding claims in rights, duties, and obligations. Although there are reasons to be neighbourly and create belonging, the drive to convert the concept of belonging into a topic of rights can make exit ramps more difficult to find (a point developed above). Rather, the failure to be neighbourly creates a loss for that very individual; and a community that lacks belonging fails to create a public good for living together. These losses motivate reasons to cultivate a virtue of neighbourliness, which becomes an exit ramp from conflict. These clarifications explain why those general criticisms do not apply. Do they also explain what makes the account appealing in its own right? Let’s consider the case. First, as reviewed above, these ideas point the way to exit ramps from conflicts over migration—a significant result. Second, if the neighbourhood is where belonging matters most, then nationalism becomes a mistake for cultivating belonging. That is, if neighbourliness can create belonging whereas nationalism can create discord and violence (with its unbending imposition of ideas on others), then neighbourliness becomes a virtue in more ways than one. Virtuous neighbours realise that abstract ideology is not all that matters in life; they seek other grounds for establishing relational and community ties with others. Neighbourliness becomes a way of being human to one another in ways that ideology can subvert. It’s not the objective of this essay to analyse competing accounts of belonging, so the appeal is conditional: interpreting belonging through an ethics of local interaction has the prospects of overcoming (disastrous) problems with nationalism.24 Nationalism may be unnecessary, insufficient, and less stable than grounding belonging in a broad human character trait to be neighbourly. Third, a neighbourhood-driven concept of belonging can create many goods, including a democratic and participatory ethos—an appealing upshot of this account. Through a series of case studies in Better Together: Restoring the American Community, political scientist Robert Putnam documents how people from diverse backgrounds realise ‘bridging capital’ to work together to support important public goods for the community. Belonging grounded in neighbourliness adds content to what belonging ‘together’ can really mean and do for a community. Some may seek too much ‘togetherness’ if they miss the mark on neighbourliness, or (far more likely) too little; but there is a remaining sense of togetherness that the virtue of neighbourliness is meant to track: a type of sustainable

236  Steven Scalet caring about the other that is less than friendship but more than mutual aid, that supports belonging, and that enables a community to create public goods that would otherwise go fallow. Having voice in democratic institutions becomes its own public good, so an ethical concept of neighbourliness, understood as a human virtue, may reinforce and complement democratic ideals and virtues, such as civic friendship and reasonable disagreement (Talisse 2019; Rawls 1993; Mason 2000; Needleman 2003; DeTocqueville 2000). Also, within democratic cultures, attitudes toward migrants that are filtered through neighbourliness and belonging can motivate neighbours as citizens to coalesce and act in concert politically and culturally, to build networks that impact voting trends and the institutions of civil society.25 Fourth, as suggested above, belonging can be modelled as a public goods problem, where being a first mover in neighbourliness can help form habits for solving other public goods problems. Success at small scale experiments in neighbourliness, with relatively lower risks, can help not only with belonging but with overcoming other and seemingly more intractable public goods problems in civil society (Scalet 2005). The virtue of neighbourliness can support a democratic civic culture but also has independent meaning and practical application for solving public goods problems across a wider range of political cultures. Fifth, formulating belonging in terms of concrete relationships can reduce residents’ sense of alienation in the world; in this way the notion fits into currents of scholarship on the nature of belonging as a human good. For example, in ‘A Phenomenological Investigation of the Experience of Not Belonging’, Clegg provides an instructive literature review of the psychology and phenomenology when people lack belonging, suggesting that belonging identifies a general human need. The analysis here presumes a special social and historical context—of home and neighbourhood—but the account may touch on universal human drives that extend its range of application. Sixth, the account offers a potentially appealing method for balancing universalist and particularist demands in normative thought. Neighbourliness and belonging identify a general framework, but this framing admits of significant cultural variation, as discussed above. Human goods (such as the good of home and neighbourhood) are cross-cultural and with particulars that vary across communities. Neighbourliness and belonging fall in between a universalist Kantian perspective on persons and a robust particularism contained solely within family life. Neighbourhoods require an ethics for people who may hardly know each another but who are still connected within specific historical communities—through human stories of migration. Neighbourliness reaches outward toward a common humanity but inward to a particular history of local ties (Almond 2016). Abstract political theories emphasise universal principles; phenomenology emphasises the particular (Hoff 2014; Malsbary and Torres 2012). Virtue ethics offers an additional normative study of migration that can bring both together through its account of virtue.

Migration, neighbourliness, and belonging  237

9.6 Justice, policy, and the ethics of local interaction The chapter has already engaged ideas that bear on law and justice; this section gathers and extends that discussion. The first point is one of contrast. The framework attempts to show how the normative terrain for the ethics of migration is not solely defined by considerations of justice. If it were, there would be nothing to say about how newcomers and old-timers should live together once justice is put aside. Still, this approach may seem to misplace or wrongly sideline the role of justice for migration. ‘Justice is the first virtue of social institutions, as truth is of systems of thought …. Being the first virtues of human activities, truth and justice are uncompromising’ (Rawls 1971, 3–4). Justice sets boundaries for the pursuit of other virtues. A more complete normative account of migration includes an account of what justice demands, which, in part, sets constraints on the pursuit of other goods. This essay accepts these claims. It may seem to follow that a fully developed account of justice has priority over and must precede an account of the virtues such as neighbourliness. If so, then this essay places the cart before the horse on migration issues. It may be instructive to consider why these secondary points do not follow. Accepting the primacy of justice does not imply waiting for an account of justice to derive an account of neighbourliness. I will build a case for that position in two steps. How do we know what justice demands for immigration policy? Both scholarship and popular opinion on the justice of border policy remain normatively contested. There are reasons to doubt that we have knowledge of clear-cut policy resolutions for balancing the rights of migrants and the claims of sovereignty and political self-determination. In ‘The Ethics of Immigration: Self-Determination and the Right to Exclude’, Sarah Fine emphasises good reasons to believe that immigration policy debates based on accounts of justice are inconclusive. That inconclusiveness is also how many of us are situated: we encounter newcomers, or we encounter old-timers, in neighbourhoods, with the need to form attitudes and responses to their presence, in the face of not having worked out a theory or view about the systemic justice or injustice of anyone being there. This orientation suggests a principle: when or if policy debates are normatively inconclusive on grounds of justice, a different normative tack can be justified for making productive advances (cf. Rawls, 1971, 6). This essay provides that tack: what attitudes should people have toward newcomers? What should be the relationships between newcomers and old-timers? By analogy, in a primary or secondary school system, when ‘old-time’ students and staff encounter ‘newcomer’ students, they (typically) do not have an account of the justice of the new students being there. It’s just not known, and scholarly work may not provide much resolution either; yet new students arrive. These students need an ethics about what to do, under circumstances when often it does not go well. Carens notes that immigration

238  Steven Scalet debates are often less about policy and action and more about how people think and feel (Carens 2013, 72); and, I would add, in ways that impact the goodness independent from an account of the justice of society. Exit ramps redux. Consider a stronger claim that combines the argument on exit ramps with this first epistemic point: even if we accept the primacy of justice (theoretically), we may place undo emphasis on perceptions of justice (practically). Is it possible to focus too much on considerations of justice and too little on neighbourliness? Yes, if an increased focus on neighbourliness creates exit ramps that resolve conflict. Moreover, if it’s not clearly known what justice in migration requires, but increasing attention on neighbourliness clearly reduces conflict, then there are good reasons to focus on neighbourliness, both for reasons of good community and for reasons of justice (insofar as reducing conflict advances justice). Further, if we have more confidence in arguments about what is good for us (such as belonging and being neighbourly) than we do in arguments about what justice requires vis-à-vis immigration, then we are likely to be on firmer normative ground acting on reasons of neighbourliness and exiting hyper-contested and fraught political debates that centre on the justice of immigration.26 Thus, it’s possible to accept the primacy of justice while arguing for a focus on neighbourliness. Consider additional consequentialist and causal relationships between ethics and justice. There can be disastrous consequences from ignoring the ethics of local interactions through a sole focus that justice must be sorted out abstractly and enforced first and prior to cultivating neighbourliness. Imagine old-timers and newcomers who dispute the justice of border policy; both sides are convinced of their views and they eventually address their disputes through violence. Now imagine old-timers and newcomers who manage to become neighbourly. They live in ways that express this virtue. Their prior unbending attitudes about border policies undergo change. An ethics of local interaction may lead both sides to endorse border policies that are substantively closer to what justice actually demands. Thus, not only is neighbourliness an exit ramp but it can also help realise justice. Consider a second example. Two entrenched groups argue about multicultural education at politicised council meetings. The arguments are binary, unbending, and bitter, with all sides framing the conflict as demands of justice. Later, audience members run into each other as they usually do, at grocery stores, banks, local businesses, and parks. They engage in conversation without even knowing any connection to the council meetings. Over time they become more neighbourly and only later do they realise their opposed views on education policy. They delicately enter into conversation about education justice, as neighbours in a non-political setting. Consider the contrast: at the council meeting, without neighbourliness, politicised reasoning about justice goes from one battle to the next. At the park, there is some chance of perceiving justice in education in new ways that come closer to what justice actually demands. In sum, neighbourliness may yield more knowledge about justice than a focus on justice without neighbourliness; neighbourliness may also lead us

Migration, neighbourliness, and belonging  239 to learn something about what justice demands. As a matter of history, neighbourliness might cause the development of justice, and if that’s true, then we have reasons to care a lot about understanding and spreading neighbourliness. The causation no doubt works both ways: just conditions improve neighbourliness; and neighbourliness improves justice. Thus, it makes sense to derive content from both sides. A reflective equilibrium integrates ethics and justice in ways that enlarge the field of vision for addressing and resolving fraught global migrations that are likely to continue and increase in the decades ahead.

Conclusion This essay provides a normative framework—an ethics of local interactions— to create exit ramps for resolving migration conflicts. Conflicts between universalist demands for human rights and particularist calls for national sovereignty can be reimagined at the local level, supporting practical reasoning towards a virtue of neighbourliness and a sense of belonging, relevant to community and personal decisions. Neighbourliness can serve as an ethical guide for how people should manage inevitable changes that communities undergo as newcomers and old-timers live together. Migration flows are likely to increase in the decades ahead. The better the normative resources generated by local communities for addressing these migratory flows, the better the chances for finding exit ramps for resolving conflicts and supporting justice.27

Notes 1 A survey of US attitudes towards Afghan relocation efforts into U.S. communities showed more than 80% support. For more information, see www.thechicago council.org/commentary-and-analysis/blogs/republicans-and-democratssupport-evacuating-relocating-afghans/ (last accessed 30 September 2022). 2 See Scheffler (2007, 104–108), where he refers to future generations as ‘immigrants from the future, if you like’ (104). 3 ‘Old-timers’ refer to long-settled residents defined in relative terms to others, the newcomers, who are not as settled. These expressions are intended to be normatively neutral. Old-timers could be called ‘long-settled residents’ and newcomers ‘newly-settled residents’. 4 Rajendra extends her discussion of migration beyond principles of mutual aid as well but stays within considerations of justice (2015, 367). 5 This ‘Hohfeldian’ terminology originates from (Hohfeld 1919). See also Honoré (1961) for an influential discussion of ownership, including home ownership. 6 Further, legal systems are far more permissive when it comes to private citizens exercising lethal force when protecting the sanctity of the home. I thank Christopher Griffin for this point. 7 For further study of extra-legal property rights, see Ellickson (1991) and De Soto (2000). 8 See also Carens (2005, ch. 10) for further analyses of legal and normative claims and duties associated with protecting home life.

240  Steven Scalet 9 So important was this point in United States’ history that mere legislation was thought insufficient: Amendment III of the United States Constitution specifies a non-negotiable bright line within a home against soldiers’ uninvited incursions during peacetime, and Amendment IV proscribes against unreasonable searches and seizes in the home by police. 10 See also Scheffler (2007), who shares scepticism in framing belonging in terms of national identity and culture. 11 Becerra (2014) illustrates how people can come to belong not merely (and perhaps not centrally) through legal citizenship, which was absent for significant numbers of soccer and parade participants. Belonging happens in the gaps and spaces between formal and informal norms and in the resulting community interactions. The account in this essay, like Becerra’s, differs from but complements work on belonging that focuses on legal and political questions about citizenship and rights. 12 Can libertarian codgers and rugged individualists flourish without belonging? More likely, the spirit of that individualism creates its own kind of belonging, in ways compatible with this account, and the relationships likely go beyond mutual aid. But this essay will not develop that specific argument. Later, this essay does examine the larger question about how neighbourliness and belonging do (properly) share a mix of culturally relative and universalist elements. 13 It can be instructive to extend these examples. For example, some old-timers may not want to be first movers, perhaps only because of natural reserve, but they understand its value. That understanding is a step toward virtue: an intellect that knows but with feelings that have yet to align. But what about old-timers who intellectually reject that understanding, such as a libertarian individualist mentioned in a previous footnote? I would argue that a libertarian ethos (which is not an account of justice) supports being a first mover; but if not, the response is: they’re not being neighbourly and they lack in a virtue. A distinctive epistemic contribution of virtue ethics is to see that this response is not a conversation stopper, it’s a conversation starter. 14 On justice and reciprocity, see Schmidtz (2006). 15 The retreat is not without further worries: patterns of injustice may thereby more easily take root; or, more positively, the retreat to one’s home can defuse violence and allow for peace. The general point is that an account of neighbourliness can provide insights for fostering justice, a methodological point addressed below. 16 See Toner (2019) for further analysis of a home. 17 Whether and how certain kinds of friendship can spread widely enough to create a ‘beloved community’ that goes beyond mere belonging is beyond the scope of this paper. Martin Luther King Jr is especially well-known for his religious imagery of a beloved community that achieves justice and nonviolence through friendship in terms of the Greco-Christian concept of agape. 18 Gedalof (2009) applies these ideas to home life but they apply to this analysis as well. 19 This concept is similar to Carens’ concept of ‘mutual adaptation’ (2013, 62–87). 20 For example, Tetsu Sakurai offers the concept of ‘reflective inclusiveness’ in this volume. Compare also with the notion of willkommenskultur in Germany. I thank Frederick von Harbou for this reference. 21 The distinction between self-regarding and other-regarding reasons does not parallel the distinction between ethical (but non-justice based) reasons and justice-based reasons. There can be reasons for old-timers to be neighbourly with immigrants that are neither reasons of justice nor self-regarding reasons. Neighbors can aspire for their own good and others’ good, as illustrated by Aristotle’s relational discussion of friendship. These reasons can derive from a character of large heartedness, magnanimity, or benevolence. These points also reinforce how the virtues can be reinforcing and overlapping.

Migration, neighbourliness, and belonging  241 22 For example, Fine highlights the connection between belonging and nationalism (2013, 261), and Scheffler ‘expresses scepticism about a broad concept of culture to anchor belonging (2007). Liberal egalitarians tend to emphasize conditions of equal treatment and protection against harms, irrespective of conditions of belonging. For further discussion, see (Ottonelli 2014). 23 See also MacIntyre (1984) and Keller (2006) for an instructive contrast about whether patriotism is a virtue. 24 Cf. Roger Cohen (2020) in his final remarks as a New York Times columnist: ‘Something about crazed nationalism, how it giddies people with myth, how it gets their blood up building walls, how it births loony ideas like turning the eastwest crossroads of Sarajevo into an ethnically pure Serbian preserve, how its endpoint may be 100,000 dead or more in the rubble and the ashes. How it quashes tolerance, destroys civilization, enables dictators, and devours freedom’. www. nytimes.com/2020/11/14/opinion/sunday/roger-cohen-last-column.html (last accessed 19 November 2021). 25 Lowe (2019) captures a sense of belonging defined through democratic participation. I’d like to thank Chris Griffin for discussion of these ideas. 26 I’d like to thank Chris Griffin for emphasizing this point. 27 I’d like to thank Tetsu Sakurai and Mauro Zamboni for their steadfast work as editors of the book volume and all the Core-to-Core project participants for their contributions, suggestions, and camaraderie. I am especially thankful for detailed comments from Josh Kassner, Chris Griffin, and Mark Lebar, whose insights and conversations improved the article greatly, whatever the remaining faults, and whose collegiality goes well beyond neighbourliness, about which I am most grateful. Finally, I would like to thank the Hoffberger Center for Ethical Engagement and The University of Baltimore for supporting this research.

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242  Steven Scalet De Soto, Hernando. 2000. The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. New York: Basic Books. DeTocqueville, Alexis de. 2000. Democracy in America. Chicago: University of Chicago Press. Edyvane, Derek. 2011. ‘Britishness, Belonging and the Ideology of Conflict: Lesson from the Polis’. Journal of Philosophy of Education 45(1): 75–93. Ellickson, Robert C. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard University Press. Fine, Sarah. 2013. ‘The Ethics of Immigration: Self-Determination and the Right to Exclude’. Philosophy Compass 8(3): 254–268. Gedalof, Irene. 2009. ‘Birth, Belonging and Migrant Mothers: Narratives of Reproduction in Feminist Migration Studies’. Feminist Review 93: 81–100. Greenaway, James. 2018. ‘Communitas: Belonging and the Order of Being’. International Journal of Philosophy and Theology 79(2): 194–212. Heyes, Cressida. 2020. ‘Identity Politics’. In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. Fall Edition. https://plato.stanford.edu/archives/ fall2020/entries/identity-politics/. Hidalgo, Javier. 2012. ‘Christopher Heath Wellman and Phillip Cole Debating the Ethics of Immigration: Is There a Right to Exclude?’ Journal of Value Inquiry 46: 491–495. Hidalgo, Javier. 2018. Unjust Borders: Individual and the Ethics of Immigration. New York: Routledge. Hoff, Shannon. 2014. ‘Rights and Worlds: On the Political Significance of Belonging’. The Philosophical Forum 45(4): 355–373. Hohfeld, Wesley. 1919. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven: Yale University Press. Honoré Anthony M. 1961. ‘Ownership’. In Oxford Essays in Jurisprudence. Edited by A. G. Guest. 107–147. Oxford: Oxford University Press. Kant, Immanuel. 1983. Perpetual Peace and Other Essays. Indianapolis: Hackett. Keller, Simon. 2006. ‘Patriotism as Bad Faith’. Ethics 115: 563–592. Kinzel, Till. 2010. ‘Segun Afolabi, Transnational Identity, and the Politics of Belonging’. Cultura International Journal of Philosophy of Culture and Axiology 7(1): 111–123. Lowe, Barbara J. 2019. ‘The Right to Belong and Immigration: A Feminist Pragmatist Analysis’. Contemporary Pragmatism 16: 268–285. MacIntyre, Alisdair. 1984. ‘Is Patriotism a Virtue’. The Lindsay Lecture. Lawrence: The University of Kansas. Malsbary, Christine Brigid and Carlos Alberto Torres. 2012. ‘The Role of Social Justice Education in Transforming the Politics of Belonging for Global Politics: Editorial Introduction’. Encyclopedia 16(33): 9–20. Mason, Andrew. 2000. Community, Solidarity, and Belonging: Levels of Community and Their Normative Significance. Cambridge: Cambridge University Press. Mendoza, José Jorge. 2015. ‘Enforcement Matters: Reframing the Philosophical Debate over Immigration’. Journal of Speculative Philosophy 29(1): 73–90. Needleman, Jacob. 2003. The American Soul: Rediscovering the Wisdom of the Founders. New York: Tarcher Perigee. Nozick, Robert. 1974. Anarchy, State and Utopia. New York: Basic Books. Ottonelli, Valeria. 2014. ‘Arguments That Backfire’. Ethical Perspectives 21(4): 581–590.

Migration, neighbourliness, and belonging  243 Pevnick, Ryan. 2009. ‘Social Trust and the Ethics of Immigration Policy’. The Journal of Political Philosophy 17(2): 146–167. Putnam, Robert. 2004. Better Together: Restoring the American Community. New York: Simon and Shuster. Rajendra, Tisha M. 2015. ‘The Rational Agent or the Relational Agent: Moving from Freedom to Justice in Migration Systems Ethics’. Ethical Theory and Moral Practice 18: 355–369. Rawls, John. 1971. A Theory of Justice. Boston: Harvard University Press. Rawls, John. 1993. Political Liberalism. Boston: Harvard University Press. Scalet, Steven. 2005. ‘Prisoner’s Dilemmas, Cooperative Norms, and Codes of Business Ethics’. Journal of Business Ethics. 65(4): 309–323. Scheffler, Samuel. 2007. ‘Immigration and the Significance of Culture’. Philosophy and Public Affairs 35(2): 93–125. Schmidtz, David. 2006. Elements of Justice. Cambridge: Cambridge University Press. Talisse, Robert. 2019. Overdoing Democracy. Oxford: Oxford University Press. Toner, Christopher. 2019. ‘Home and Our Need for it’. Journal of Philosophical Research 44: 251–272. Tsolidis, Georgina. 2010. ‘Simpson, His Donkey and the Rest of Us—Public Pedagogies of the value of Belonging’. Educational Philosophy and Theory 42(4): 448–460. Walzer, Michael. 1983. Spheres of Justice. New York: Basic Books. Walzer, Michael. 2011. ‘Global and Local Justice’. Straus Institute Working Paper 8: 1–11. http://nyustraus.org/index.html. Wellman, Christopher Heath and Phillip Cole. 2011. Debating the Ethics of Immigration: Is There a Right to Exclude? Oxford: Oxford University Press. Westen, Peter. 1985. ‘The Concept of Equal Opportunity’. Ethics 95: 837–859.

10 Reflective inclusiveness as a bridge between human rights and nationalistic attachment Tetsu Sakurai

Introduction In the immediate aftermath of the Second World War, George Orwell presented a surprisingly broad definition of nationalism in his essay titled ‘Notes on Nationalism’. In his ‘extended sense’ of the term, nationalism does ‘not necessarily mean loyalty to a government or a country, still less to one’s own country, and it is not even strictly necessary that the units in which it deals should actually exist’. This may sound rather irregular; the object of our nationalistic attachment is almost always thought to be obvious and presupposed to exist in the real world when we use the phrase. Amazingly enough, he goes on to cite ‘Jewry, Islam, Christendom, the Proletariat and the White Race’ as examples of ‘objects of passionate nationalistic feeling’. How, however, can ‘the Proletariat’ or ‘the White Race’ be regarded as a nation? It might have seemed bizarre to readers in those days to refer to these categories as objects of nationalism. One of the purposes of this chapter is to show that more than 70 years later, Orwell’s extended use of the term is not as strange now as it might have seemed in the past (Orwell 2018, 3; italics original). It is noteworthy that Orwell used the word ‘nationalism’ only because he could not find ‘a better’ one. According to his defining statement, the ‘abiding purpose of every nationalist is to secure more power and more prestige, not for himself but for the nation or other unit in which he has chosen to sink his own individuality’ (Orwell 2018, 2; italics original). In other words, when we feel a sufficiently strong attachment to a unit—not necessarily a nation—that we identify with and that we desire grows more powerful and prestigious, we are ‘nationalists’ of that particular unit. Thus, if a large unit can subsume our individuality, then any unit can become an object of nationalism in this sense. At first glance, this broad definition of ‘nationalism’ may seem quite unusual and it fails to fit the typical definitions proffered by prominent theorists on nationalism such as Anthony Smith and Ernest Gellner. Smith presents his working definition of nationalism as ‘[a]n ideological movement for attaining and maintaining autonomy, unity and identity for a population which some of its members deem to constitute an actual or potential DOI: 10.4324/9781003102717-14

Reflective inclusiveness  245 “nation”’, even though the content of the word ‘nation’ is still open to interpretation here (Smith 2010, 9). Further, according to Smith, definitions of the nation range from those that stress ‘objective’ factors, such as language, religion and customs, territory, and institutions, to those that emphasise purely ‘subjective’ factors, such as attitudes, perceptions, and sentiments. He cites Benedict Anderson’s famous definition of a nation, ‘an imagined political community—and imagined as both limited and sovereign’, as a typical example of the subjective definition (Smith 2010, 11). Smith thus acknowledges that various definitions of the ‘nation’, ranging from objective to subjective, have hitherto been presented and suggests that these definitions all include state-related concepts, such as territoriality or sovereignty. On the other hand, Ernest Gellner, an explicit advocate of the modernist account of nationalism, begins his book Nations and Nationalism with a more stringent definition of nationalism; that is, ‘a theory of political legitimacy, which requires that ethnic boundaries should not cut across political ones, and, in particular, that ethnic boundaries within a given state … should not separate the power-holders from the rest’. This definition presupposes the existence of a state’s political boundary and demands that ‘the political and the national unit should be congruent’ (Gellner 1983, 1). In this manner, these representative definitions of nationalism include a larger political unit or the system of the state. Orwell’s definition of nationalism is quite unusual in the sense that it does not include a system of state or government as an essential factor. However, this irregularity is well-suited for our present purpose, particularly because defining the concept of nationalism is critically important when discussing the subject of this book, Can Human Rights and National Sovereignty Coexist? As shall be seen below, nationalism, which may impinge on the implementation of human rights in various modern contexts, must be understood in a broader Orwellian sense. For example, Ulrich Schmiedel succinctly points out that the Patriotic Europeans against the Islamisation of the West (Patriotische Europäer gegen die Islamisierung des Abendlandes, PEGIDA) movement blurs the distinction between Islam, Islamism, and Islamisation and, moreover, denounces Islam for invading Europe ‘with its army of Muslims’. Once ‘the army has prevailed in the clash of cultures’, PEGIDA believes that Christianity as the symbol of European culture will fall apart (Schmiedel 2018, 216). Accordingly, all Muslims are characterised as radical aggressors against Christendom and PEGIDA is touted as the defender of Christendom. What drives PEGIDA to fight against alleged and imminent Islamisation seems to be its ‘nationalistic’ attachment to Europe as a Christendom rather than to any specific country or people. In this case, the Orwellian ‘nationalistic’ loyalty to Europe is meant to meet the challenges posed by the major influx of Muslim refugees. Regarding the historical origins of nationalism, I am a determined modernist in thinking that nationalism has its roots in modern culture and technology. From this perspective, the ideas of human rights and nationalism (let

246  Tetsu Sakurai alone national sovereignty) are children of modernity. Still, today, they are at odds with each other, particularly over immigration issues. Moreover, the political and legal ideas of national sovereignty and nationalistic sentiment are still deeply interdependent. The former imparts a crystal-clear expression of the latter—while being firmly undergirded by it. This chapter will address the issue of how to bridge the distance between nationalistic attachment and human rights and examine how we can find a way out of the dilemma that these two ideas create.1 Put another way, the issue we are facing is the following: when the modern notions of human rights and nationalistic sentiment are at odds with each other over the massive influx of refugees into Europe, which one should receive higher priority in order to resolve this predicament? Below is my tentative contribution to this philosophical quandary.

10.1 Populist anxiety In his wide-ranging objection to the recent permissive policy of accepting large numbers of refugees into Europe, Douglas Murray poses some critical questions concerning contemporary European society. According to Murray, after the Holocaust and the concomitant collapse of racial theories, Europe ‘lost faith not only in its God but in its people as well’ (Murray 2018, 220). This means that the catastrophe of the Second World War had left Europeans distrustful of even the Enlightenment, which had, in part, replaced their belief in God. This notion appears to presuppose an insight by Zygmunt Bauman, who pointed out ‘a distinct modern flavour’ of the Holocaust in Modernity and the Holocaust, his epoch-making work on the mechanisms of that genocidal system (1989, 88). According to Bauman, the distinctively modern features of the Holocaust suggest that: modernity contributed to the Holocaust more directly than through its own weakness and ineptitude. It suggests that the role of modern civilization in the incidence and the perpetration of the Holocaust was active, not passive. It suggests that the Holocaust was as much a product, as it was a failure, of modern civilization. Like everything else done in the modern—rational, planned, scientifically informed, expert, efficiently managed, co-ordinated—way, the Holocaust left behind and put to shame all its alleged pre-modern equivalents, exposing them as primitive, wasteful and ineffective by comparison. (88–89) As Bauman contends, if the Holocaust was really an ‘accomplishment in every respect superior’ of modern civilisation, it is no wonder that it made people cast distrustful eyes on the Enlightenment in post-war Europe (89). Christianity has demonstrably been on the wane in most European countries, particularly since the 1960s. Murray does not personally regret the decline in Christian beliefs in Europe itself. To him, the problem is that the liberal values of Western democracies are doubtless both historically and

Reflective inclusiveness  247 theoretically grounded in Christian thought. He uncritically cites Don Cupitt, who argues that ‘[y]ou may consider yourself as secular, but the modern Western secular world is itself a Christian creation’ (Cupitt 2008, 67; italics original). According to Cupitt, the Enlightenment did not add anything new or distinctive to Christianity. In short, ‘Western culture is Christianity objectified and secularised’ (55). From this perspective, the post-war notion of human rights would ‘appear to be an attempt to implement a secular version of the Christian conscience’ (Murray 2018, 213). In this regard, for Murray, the large number of devout Muslim immigrants that live in Europe is a serious problem as it has become clear that not all immigrants share European values, presumptions, and perspectives on morality. In other words, they do not share the view of ‘the primacy of reason over revelation’ (Murray 2018, 261). This finding has inspired real fear in Murray because he considers the liberal attitudes towards and immigration policies for Muslim immigrants self-destructive and that may drive a gradual but unavoidable transmutation of European society. Thus, he states that ‘in pursuit of a “liberal” immigration policy they [liberals in Europe] might lose their liberal societies’ (Murray 2018, 295). In other words, mass Muslim migrants admitted into Europe due to liberal policies are, in the long run, likely to erode the European liberal culture. This is a real paradox because the admissive policy seems to be the only possible course of action for an authentic liberal regarding asylum-seekers and immigrants. If this paradox has any plausibility, it is partly because of the decline of the Christian population and the simultaneous increase of Muslims in Europe. In late 2017, Pew Research Center released three future scenarios on the size of Europe’s Muslim population, which varied depending on prospective scales of migration. As of mid-2016, it estimates the Muslim population in Europe to be at 25.8 million or 4.9% of the overall population, which is strongly up from 19.5 million (3.8%) in 2010. The first (‘high’ migration) scenario, predicts the massive influx between 2014 and 2016 to continue indefinitely. However, this seems unlikely particularly because of the tightened control of the EU’s borders after the refugee crisis. The second (‘medium’ migration) scenario predicts that the recent levels of regular migration to Europe will continue, resulting in the European Muslim population reaching 11.2% in 2050. According to its third and most modest (‘zero migration’) scenario, if all migration into Europe were to stop immediately and permanently, the Muslim population of Europe would be estimated to rise to 7.4% by 2050. Thus, regardless of the level of migration in each scenario, the modelling by Pew Research Center reveals a conspicuous increase in the Muslim population in Europe in the coming decades (Pew Research Center 2017). If contemporary values and Western notions of liberty and equality are rooted in the Christian perspective and if Christendom’s political dominance is likely to be threatened—if not replaced—by Islam in the distant future,

248  Tetsu Sakurai Murray’s worry of ‘how long can a society survive once it has unmoored itself from its founding source and drive?’ cannot be dismissed as illusory (Murray 2018, 262).2 Thus, Murray warns of the following: What changed was a growing awareness that other cultures now increasing among us did not share all of our passions, prejudices or presumptions. The attempt to pretend that what has been believed and practised in modern Europe is normal has taken repeated blows. Across some rather surprising learning moments—a terrorist attack here, an ‘honour’ killing there, a few cartoons somewhere else—the awareness grew that not everybody who had come to our societies shared our views about equality between sexes. They did not share our views on the primacy of reason over revelation. And they did not share our views on freedom and liberty. (Murray 2018, 261) In the extract above, Murray explores his point based on the premises of the dependence of contemporary Western values on Christianity and a prospective political threat to European societies by the burgeoning Islamic population. However, I would argue that these premises need to be addressed and questioned in our analysis, to which I will return later.

10.2 Human rights as the progeny of Biblical Christianity As Murray’s anxiety correlates with Cupitt’s thesis that ‘the modern Western secular world is itself a Christian creation’ (Cupitt 2008, 67; italics original), it is worth exploring the recent development of how modern European values and ethics, particularly the idea of human rights, are connected to Christianity. According to Murray, in the late twentieth century, intelligent and cultured people ‘appeared to see it as their duty not to shore up and protect the culture in which they had grown up, but rather to deny it, assail it, or otherwise bring it to low’. In the first decade of the twenty-first century, opinion was shifting as people began realising that ‘Western liberal societies may, in fact, owe something to the religion from which they arose’ (Murray 2018, 261). Olivier Roy points out a similar change in the political scene. He asserts that the reference by politicians to the Christian identity of Europe has been a fairly recent phenomenon since the end of the 1980s. As right-wing populist movements emerged and grew, not only the populist movements but also the conservative right and the political establishment began to refer to the Christian identity of Europe (Roy 2016, 191–92). The following is a prime example of this recent development in the academic world—Anthony Langlois’s article ‘The Narrative Metaphysics of Human Rights’ (2005). First, he blatantly challenges the claim of the universality and impartiality of the Universal Declaration of Human Rights (UDHR). According to him, the UDHR claims the following:

Reflective inclusiveness  249 Human rights has the authority to stand over and above the multiplicity of traditions, religions, cultures, political ideologies and metaphysical traditions existent throughout the world. … Human rights does not need metaphysics, does not depend upon speculative philosophies or divine revelations. All that is needed for human rights is a recognition of our common humanity. (374; italics mine) Langlois regards it as ‘fundamentally flawed’ to assume that ‘we are able to make observations of our humanity as such and distil from these observations bills of human rights’ (375). On the contrary, both our understanding of our common humanity and the inference of specific lists of human rights from this understanding are dependent on a particular philosophy or tradition of the human condition. When we assert a set of human rights, which is ‘deontological, secular, liberal, rational, individual, democratic, self-evident, and universal’, we are also necessarily committed to a particular historical and philosophical outlook that is liberal as well as democratic (371). According to Langlois: All our observations of what it means to be human, and all distillations of these observations into political programmes like bills of rights, are done from within one or another of the human traditions. This, of course, is why the bills of rights emergent from the time of the Enlightenment to the present give us liberal political formulations: not because they were able to show that human beings are by nature liberal, but because they were framed within a liberal milieu. (375–76) Langlois repeatedly argues that the idea of human rights would be a formal and empty formula if not for its specific philosophical, metaphysic, and historical framework, which is (for historical and contingent reasons) liberal, individual, and particularly universal after the experience of the Enlightenment and then the Holocaust. This implies that the appeal to human rights always presupposes concrete accounts of the ideal life of a particular culture, tradition, and philosophy. In other words, the crux of human rights rests on what Langlois calls ‘high anthropology’ or ‘philosophical claims about the value of the human person’, which is unparalleled on earth. Moreover, he explicitly acknowledges that the origins of high anthropology within the Western tradition ‘owe much to the historical influence of Christianity, an influence which is central to the development of rights theories within the West’ (Langlois 2004, 244). However, today, Christianity has been intellectually superseded by the doctrines of liberalism, particularly because of the secularisation of modernity. The philosophical anthropology presupposed by liberalism instead provides ‘the rationale for later elaborations of human rights as rights which inhere in the person, which are inalienable, inviolable, universal’ (Langlois 2004, 254; 2005, 383). Langlois emphasises that, even though Rawls’ liberalism pretends to be independent of any set of values or metaphysics about what it

250  Tetsu Sakurai means to be human, liberalism is itself nothing less than ‘a narrative of what it means to be human, … a narrative about the claim that there is a non-narrative relation between freedom, rationality and our substantive accounts of who we are and what it means to be human’. In addition, liberalism’s self-alleged universalism and impartiality rely entirely on ‘an understanding of reason that has arisen out of a particular set of contingent historical circumstances and itself appeals to a particular philosophical narrative of the nature and origin of the human person and society’ (381–82; italics mine). In this manner, he argues that a contemporary account of the meaning and basis of human rights provided by liberalism is precisely ‘the evolving end-project of a long and complex intellectual tradition’, which is ‘inescapably a particularist historical narrative’, thereby denying liberalism’s self-alleged neutral and impersonal status as a system of ethics. This is why he flatly asserts that ‘human rights are established and regarded from within our philosophical, political, and religious traditions’ (383; italics mine). While John Gray candidly characterised Rawlsian liberalism as based on the ‘emaciated shadow of the immortal soul of the Christian traditions’ (1986, 51), Langlois studiously stayed away from proclaiming that Christianity engendered the idea and substance of human rights. In this respect, his stance was self-limiting. On the other hand, in his paper ‘Christianity and Human Rights’ (2018), Andrew Kulikovsky has thoroughly proved that there is only a small step from Langlois’s modest position to an outright claim that the idea of human rights owes its origin and substance to Christianity. First of all, Kulikovsky follows Langlois’ thesis that ‘[t]he promotion of human rights depends upon belief in a high anthropology’, which answers the question, ‘[w]hat is it about human persons, as individuals or groups, which makes them … sacred’? (Kulikovsky 2018, 189; Langlois 2004, 244). Further, Kulikovsky examines a variety of candidates for the basis of this high anthropology, including Islam, Marxism, secular humanism, and liberalism and asserts that none qualify. For example, he denies the eligibility of secular humanism, particularly because for its proponents, ‘human rights are nothing more than social constructs’ and the ‘international human rights instruments and institutions (treaties, conventions, courts etc) are mere creations of select groups of human beings’ (Kulikovsky 2018, 195; italics mine). For secular humanists, the idea of human rights is merely an artefact contrived by the political elites and thus has no underlying philosophy. Kulikovsky thus concludes that only Christianity can provide the high anthropology that establishes the special status of every human being as a proper holder of inviolable human rights: According to the Bible and Biblical Christian theology, unlike animals, all human beings—past, present and future—are special creations of God, made in His image (Genesis 1:26–27). Therefore, all human beings have innate worth and dignity, and are equally precious and valuable. It is on this basis that human beings are deserving of special protections in the form of human rights. (Kulikovsky 2018, 197)

Reflective inclusiveness  251 Kulikovsky unequivocally argues that each article of the United Nations’ UDHR (except for the economic, social, and cultural rights3) has its origin and key idea in Biblical Christianity. He then decidedly claims that only Christianity can provide ‘the high anthropology and the moral and ethical framework’ that substantiate and enforce the human rights specified in the UDHR (Kulikovsky 2018, 206). As of 2005, Langlois was cautious about declaring that Christianity could offer high anthropology and philosophical underpinning to the contemporary idea of human rights. However, in 2018, we witnessed that the philosophical backbone of human rights was imputed only to Christianity. Even if Kulikovsky is correct in that a goodly portion of human rights stipulated in the UDHR comes from Biblical Christian teachings, it is doubtful whether only Christianity can provide high anthropology to the list of contemporary human rights. Other relevant intellectual sources for human rights may have existed historically. For instance, Louis Brandeis and Samuel Warrens’s Harvard Law Review article ‘The Right to Privacy’ published in 1890 is considered by privacy scholars to have established the concept of a right to privacy (Childress 2015), which Article 12 of the UDHR stipulates as one of the human rights. The authors never mentioned Christianity or the Bible as its historical origin. Instead, they argued that the ‘intensity and complexity of life, attendant upon advancing civilization’ made it necessary for people to regard solitude and privacy as ‘essential to the individual’ and to be protected from ‘idle gossip’ circulated by the daily papers (Brandeis and Warren 1890, 7–8). On the other hand, the evidences adduced by Kulikovsky to demonstrate that the right to privacy traces back to the Bible are particularly thin. In this sense, Kulikovksy’s claim that only Biblical Christianity affords high anthropology to human rights may be rather far-fetched. This brief examination of these two scholars on the intellectual antecedents of the notion of human rights corresponds well with Murray’s assertion that from the beginning of this century, people have been driven to believe that ‘Western liberal societies may owe something to the religion from which they arose’, namely Christianity (Murray 2018, 261). Further, German Chancellor Angela Merkel’s policy of accepting refugees, particularly until the autumn of 2015, suggests a delicate dilemma for many European intellectuals. If European culture is historically and intellectually rooted in Christianity, and if the idea of inalienable human rights also owes its values and ideals to the high anthropology of the same source, then the central bearers of European culture would have difficulty denying those human rights to the incoming migrants of other cultures. This double-bind functions as a touchstone for the paramount values of liberty and equality. Merkel’s receptive attitude towards a large influx of refugees in 2015 is likely to have been at least partly related to her enduring personal commitment to Christian values, considering her career and beliefs. In 2010, she clearly stated that ‘our common European identity is, for the most part, characterised as Christian—even though Christianity in Europe prevailed

252  Tetsu Sakurai and now prevails in various forms’, which is in line with what Cupitt argued in his Meaning of the West (2008). According to Merkel, ‘the Christian inheritance remains influential for our Continent’, and it is thus necessary to understand its roots and recall its heritage time and again (Merkel 2017, 52; my translation). This conviction is also in line with Murray and Roy’s diagnosis that many Western Europeans started to admit that they were indeed indebted to Christianity for their liberal values since the beginning of the twenty-first century. As the political leader of Germany, which enshrines the ‘inviolable human dignity’ in Article 1 (1) of its Basic Law, it is quite reasonable for Merkel to regard ‘the human being and his/her inviolable dignity’ (der Mensch und seine unantastbare Würde) as the most significant value in politics. Indeed, she even asserts that ‘European value is summarised in the idea of human dignity’. Human dignity is the fundamental core of human rights, from which equality for all human beings and the power to exercise our freedom are derived (Merkel 2017, 52–53). On 25 August, 2015, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) announced on its Twitter account that it was ‘[a]t present largely no longer enforcing Dublin procedures for Syrian nationals’, which professed that ‘Germany had a moral duty to help migrants’ and particularly Syrians because they were ‘people fleeing death, destruction and the barbarous Islamic State’ (Qvortrup 2020, 316–17). As is well known, Merkel gave explicit approval to the current German procedure in her famous Wir schaffen das! (We can do it!) press conference on 31 August, 2015. During the speech, she once again took a clear stance on the fact that European values are based on the dignity of every single human being, and that all European states must share the responsibility for refugees seeking asylum. This is because ‘universal human rights (die universellen Bürgerrechte) have been closely linked to Europe and its history’ and, in addition, ‘one of the founding impulses (einer der Gründungsimpulse) of the European Union’ (Merkel 2015). Thus, she insisted that European values and identity include human rights at their core (mostly derived from the high anthropology of Christianity). Strictly speaking, it would have been contradictory for Merkel to deny desperate asylum seekers and refugees lasting protection from their predicaments because of their dignity and human rights. However, this intensifies the dilemma between liberal immigration policies and the erosion of European liberal culture (as mentioned above) in the long run.

10.3 The triangular relationship of immigration The previous sections examined how the confrontation between Christian Europe and the large influx of Islamic refugees constitutes the main cause of the present immigration issues in Europe. This dichotomy is also reflected in the various reactions of some Eastern European countries towards Muslim and Christian refugees, with the latter being more welcome than the former,

Reflective inclusiveness  253 particularly when they are the object of religious persecution due to the solidarity of ‘Christian countries’ (Mavelli and Wilson 2017, 7; Krastev 2017, 44–59). As mentioned above, Olivier Roy points out that the ‘[r]eference by politicians to the Christian identity of Europe is a recent development’ and even European Christian Democratic parties did not call for such a reference (Roy 2016, 191). Nevertheless, in recent decades, Cameron, Merkel, and Sarkozy have all spoken out on the Christian identity of their countries or of Europe in general. Roy has it exactly right when he notes, ‘the more secular the European political scenes become, the more vocal are the calls to reclaim Europe’s “Christian roots”’ (Roy 2016, 192; 2019, 4–5; Brubaker 2017, 1199). According to him, as the number of Muslim immigrants in Europe increased around the turn of the century, so did an icy ‘reaction to the relationship between immigration and Islam in Europe’ arise. For example, it was during this time that ‘[p]opulist parties emerged sui generis, without fascist roots and built solely on the basis of opposition to immigration and Islam’ (Roy 2019, 106–7). In parallel, Christian democracy has been in decline and a new wave of right-wing populist movements has arisen. Notably, most of these populist parties accept the basic principles of secularism, such as the freedom of conscience and criticism, sexual freedom, and human rights, even if some pay ‘lip service’ to Christianity. Thus, Roy suggests quite illuminatingly that the ‘debate over Europe’s Christian identity does not rest on a binary opposition between Europe and Islam, but on a triangle’. He argues that it is essential to set three poles to explicate the recent entanglement of confrontations in Europe: (1) the Christian religion, (2) Europe’s secular values, and (3) Islam as a religion (2019, 5). First, the Catholic Church and practising Catholics defend the Christian religion but do not necessarily advocate for liberal values such as sexual freedom, gay rights, and the freedom of criticism embraced, for example, by Charlie Hebdo. Second, there are European secularist groups comprising liberals and populists who argue for the modern liberal values of liberty and equality brought about by the Enlightenment. However, secularists often use Christianity to set themselves against Islam and alleged Islamisation. The third pole, Islam, has conspicuously enhanced its political presence in Europe in recent decades. Interestingly, while populist parties as well as the conservative right champion Europe’s ‘Christian Identity’ when pitting themselves against Islam, they mostly support liberal values such as the freedom of criticism, sexual freedom, and gay rights, which are usually rejected by the Catholic Church (4–5). However, populists have also criticised Christian values such as ‘love thy neighbour’ as self-flagellation when, for example, Pope Francis used this sentiment to insist on welcoming immigrants (106).4 Opposition to Islam is thus a notable point of commonality among various populist groups. Roy further explores the internal complexity that European countries face because their social values do not coincide. Many European Christian conservatives oppose European secularists of all persuasions, such as liberals

254  Tetsu Sakurai and populists. This may stem from their opposition to moral issues such as abortion and same-sex marriage. Externally, however, European identity confronts Islam because of ‘the cultural antagonism between Muslim immigrants and Europeans’. Therefore, the triangular relationship between Christianity, secularism, and Islam has mainly been created by the double bind Christianity faces, namely, Europe’s Christian identity has become a crucial issue for both the Church and European societies, whereas the Church ‘does not, in principle, reject immigration’ from outside Europe (Roy 2019, 105). We should also pay attention to the fact that ‘despite their rhetoric about “Christian Europe”, most European populist movements—and many conservative rightists—have endorsed at least some modern liberal cultural values’ criticised by the Church (Roy 2016, 195; italics mine). Roy also makes another very important point, that is, a distinction between ‘believing’ and ‘belonging’ in Christian terms. The former signifies a genuine faith in Christianity while the latter refers to group affiliation to Christendom as a crucial identity marker. As a prime example, for most populists in Europe, Christianity ‘is a culture and an identity, but not a faith’ (Roy 2016, 193). The most important point of the ‘Christian identity’ for European populists is its alleged workability as a ‘means to render Islam foreign and incompatible with integration into the community’ (197).5 Roy goes on to note the following: [T]he European right advocates a Christian identity for Europe not because it wants to promote Christianity, but because it wants to fight Islam and the increased presence within European societies of Muslims, or what the Front National calls ‘the Islamisation of Europe’. (197) This strategic use of Christian identity by most populists dovetails well with the fact that the vast majority of populists, apart from Poland and Hungary, support a secular culture and liberal values such as sexual freedom and freedom of criticism, both of which are disapproved of by the Church, while criticising the receptiveness to immigration of religious establishments (Roy 2019; Brubaker 2017). Schmiedel agrees with Roy that Christianity is not a matter of faith, but of culture, for European populist groups like PEGIDA. Schmiedel criticised the following: the Christianity of Pegida is a culturalized Christianity: it is about ‘belonging’ rather than ‘believing’—let alone faith in God. … Pegida defends Christendom rather than Christianity. The values of dignity and decency seen as started and sustained by Christian culture are contrasted to the values of indignity and indecency seen as started and sustained by non-Christian culture: Islam. (Schmiedel 2018, 216)

Reflective inclusiveness  255 Schmiedel refers to ‘the Europe to which populists belong’ as an ‘imagined community’, a notion first conceptualised by Benedict Anderson. For PEGIDA, what should be defended against mass Muslim immigration is not the Christian faith but their own European culture or ‘territory’. Roy makes a similar argument for the common thread among populists being the ‘defence of an imaginary, supposedly homogeneous people, thought to share the same culture, customs and values’ that sharply oppose Islam (Roy 2019, 118–19). The Alternative für Deutschland (AfD) has also characterised itself as a right-wing conservative actor and as ‘defenders of the Christian Occident’, particularly since 2015 (Althoff 2018, 336). In its ‘Manifesto for Germany’ published in 2017, the AfD declares among its ‘primary political goals … to preserve the great cultural heritage for future generations, and to develop and retain its unique characteristics in an age of globalisation and digitalisation’, and lists ‘the religious tradition of Christianity’ as the first source of ‘the predominant culture’ of Germany (AfD 2017, 46; Althoff 2018, 344).6 Interestingly, Anderson himself discussed the decline of ‘the imagined community of Christendom’ in the early modern era, which was accelerated by competition between vernacular languages and Latin in his Imagined Communities (1983, 42). This means that Anderson applied the concept of the ‘imagined community’, his renowned definition of the nation, to not just political communities but also to a universal community of faith that lacked any political system. This, in turn, takes us back to Orwell’s extensive usage of nationalism which includes Christendom as well as Islam as its object (2018, 3). In this sense, the usages of ‘imagined community’ by Schmiedel and Anderson make Orwell’s irregular definition of nationalism not as irregular as it first appeared.

10.4 Christian symbols for European governments and courts It is worth noting that various European governments and courts have conformed to a clear distinction between the Christian faith and its culture. In this respect, the judgement made by the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Lautsi and others v. Italy is revealing. In this case, a Finnish-born Italian national with her two children complained that the crucifixes affixed on the walls in the classrooms of the Istituto Comprensivo Statale Vittorino de Feltre, a state school in the town of Abano Terme, violated their right to education and their right to freedom of thought, conscience, and religion as guaranteed by Article 2 of Protocol No. 1 and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whereas the applicant, a member of the Unione degli Atei e degli Agonistici Razionalisti (the Union of Atheists and Rationalist Agnostics), insisted that the crucifix was ‘without a shadow of a doubt a religious symbol’ and ‘the expression of the State’s preference for a particular religion’, the Italian government emphasised its cultural and historical aspect by asserting that the cross ‘could be perceived

256  Tetsu Sakurai not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation’. In other words, because the legal obligation to hang crucifixes in primary school classrooms is historically based on the close relationships between the Italian State, the people, and Catholicism, the presence of the crucifix is ‘the expression of a national particularity’, ‘a matter of preserving a centuries-old tradition’ (European Court of Human Rights 2011, §36, 42; italics mine). As these phrases indicate, the government is driven by the secularist argument to insist on the cultural and historical aspects of the crucifix in a classroom. The crucifix is now a symbol of ‘national culture’, not a symbol of faith. The Italian domestic courts—that is, the Veneto Administrative Court and the Supreme Administrative Court (Consiglio di Stato)—both rejected the plaintiffs’ arguments and agreed that the crucifix in a State-school classroom is a symbol of the value system of the Italian Constitution: ‘liberty, equality, human dignity and religious toleration’. The background underlying this view is that for the courts, the crucifix is ‘a historical and cultural symbol’ that expresses the religious origin of the nation’s constitutional values (European Court of Human Rights 2011, §16). Lautsi appealed to the ECtHR and thus in 2009, the Second Section declared that the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision … restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. Because the crucifix on the wall may easily be construed as a religious sign, schoolchildren’s negative freedom of religion ‘deserves special protection’, particularly if the State expresses such a belief (European Court of Human Rights 2009, §55, 57)7. The Italian government asked for the case to be referred to the Grand Chamber; in 2011, the Chamber overturned the ruling of the Second Chamber with recourse to the principle of subsidiarity and left it to the judgment of the Contracting States on whether they may reconcile the display of the crucifix in a classroom with the ‘respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. The ‘margin of appreciation’ conferred to the Italian government on this matter by the ECtHR implies that the Court did not question the government’s cultural understanding of the crucifix as a symbol of the principles and values that form the foundation of the political community of European societies. Moreover, because ‘a crucifix on a wall is an essentially passive symbol’, it cannot ‘have [a preaching] influence on pupils comparable to that of didactic speech or participation in religious activities’ (European Court of Human Rights 2011, §69, 72). In turn, this means that the Italian government and the Court agree

Reflective inclusiveness  257 that a symbol of Christianity may legally be displayed in State-school classrooms insofar as Christianity is one of the most important roots of the constitutional principles of freedom, tolerance, and human dignity. Roy accurately points out that ‘[a] religion, in this case Christianity, can only have primacy if it corresponds to the dominant culture (Leitkultur). … By reducing religion to culture, it [the Court] secularizes it’ (Roy 2019, 148–49). Christian Joppke makes a positive evaluation of the Grand Chamber’s 2011 decision because by reversing the too-liberal ruling of the Second Chamber that prioritised minority rights over national identity, the decision took ‘the wind out of the sail of Europe’s chronic populists and forestall[ed] a political backlash against too much liberalism’. Although the 2011 decision might only seem to have been ‘a surprising reaffirmation of majority culture’, it was indeed ‘politically apposite’ for the Court to recover ‘Christian identity’ for the Italian Constitution and society (Joppke 2013, 609–10). However, it remains true that the ECtHR virtually concurred with the Italian government who had demoted ‘the contested symbol from religious to cultural’ and, as it turned out, came close to the cultural and identitarian Christianism of nationalist populists. The controversy over the legality of nativity scenes (crèche de Noël) in public spaces at the end of 2019 in Provence, France, touches on a very similar issue. In early December, activists from the National Federation of Free Thought (Fédération Nationale de la libre pensée) warned all government departments about the legal steps they would take if they were planning to display a nativity scene in a public building. The Council of State had already stated that the public installation of nativity scenes would contradict the 1905 law on the separation of Church and State, known as the principle of laïcité. The mayor of the town of Béziers in southern France, Robert Ménard, who was related to the National Rally, conceded to secularist criticism; he invited representatives of the world’s five religions to the town hall inauguration ceremony to demonstrate that the nativity scene was ‘not a polemic, not a provocation, but a link (trait d’union)’ (Kovac 2019). The nativity scene was no longer claimed to be an expression of a singular religious belief (i.e. Christianity) but the cultural symbol of a tie between the world’s five major religions. In this way, recent European court decisions and governments allow for the populist view of Christianity, which considers the crucifix and nativity scene as only cultural symbols of ‘belonging’ to Christendom and not as signs of ‘believing’ in Christianity. The various public displays of traditional Christian symbols as identity markers of European societies may reflect the desire to draw on Christian identity to counter the rise of Islam. This is why ‘Christianity … is no longer a religion, but an identity’ for the contemporary populist right. From their perspective, ‘sexual freedom—and in northern Europe, even feminism and same-sex marriage—’ are ‘aspect[s] of European identity that separates Europeans from Muslims’ (Roy 2019, 118). As things stand, this populist move results in the increased secularisation of Christianity (Roy 2019, 149–50). On the other hand, it is quite understandable that the Church in various countries has opposed the use of the

258  Tetsu Sakurai crucifix as a purely nationalist and anti-Islamic symbol. In other words, a Christian identity without its faith does not make sense for the Catholic Church. This, in turn, means that ‘for the Catholic Church, there is a contradiction between the dominant secular values of Europe and its Christian identity (as claimed by politicians)’ (Roy 2016, 194–95).

10.5 What can the loyalty to cultural symbols protect? In recent decades, although various political actors in Europe have begun to emphasise the enormous influence of Christianity on European and national values, people have tended to regard the religious symbols of Christianity not as signs of faith but rather as cultural identity markers. The central problem to this practice is the following: do these cultural markers work to protect and uphold their identity? What is the meaning of Christian identity for European populists? Further, is Christian Europe ever ‘conceivable outside the clerical institution’ (Roy 2019, 101)? For Douglas Murray, Europeans need to regain a sense of pride and confidence in their roots and past in order to defuse the contemporary immigration crisis. More specifically, even if modern Europe may feel hesitant to embrace its often sordid, violent, and chequered history, it ‘could also approach its past with an air of self-forgiveness as much as self-reproach’. What strikes me here is a shallowness, as it were, that is inherent to Murray’s suggested solution to the current crisis Europe is facing. He suggests that ‘much of the future of Europe will be decided on what our attitude is towards the church buildings and other great cultural buildings of our heritage standing in our midst’ (Murray 2018, 305). He goes on to say: A society that sells itself solely on its pleasures is one that can swiftly lose its attractions. That post-nightclub convert had experienced the pleasures but then came to the realization they were not enough. A society that says we are defined exclusively by the bar and the nightclub, by the self-indulgence and our sense of entitlement, cannot be said to have deep roots or much likelihood of survival. But a society which holds that our culture consists of the cathedral, the playhouse and the playing field, the shopping mall and Shakespeare, has a chance. (Murray 2018, 305–6) It is quite suggestive that he first and foremost cites the religious symbols of Christianity as the most crucial identity markers of European society. It is also worthy of attention here that Murray draws upon religious structures such as ‘the church buildings’ and ‘the cathedral’ as the cultural symbols of Europe, not as signs of Christian faith. However, what do the structures as cultural symbols signify, if it is no longer a sincere faith? The issue is that the signifié of these symbols is oddly vague, to say the least, particularly if he intends to stake the future and solid identity of Europe on people’s attachment to them. Just as the concept and account of Christianity that PEGIDA

Reflective inclusiveness  259 invokes are, as Schmiedel points out, ‘shallow’, so too do the cultural symbols of European civilisation that Murray appeals to lack substantive content. This ‘lack of content’ indicates that Murray shares the same perspective of European populists such as PEGIDA; if for both of them any common conviction among its members is enough to establish a European identity, this identity depends on a shared vision of ‘belonging’ rather than ‘believing’ in a religion. As Schmiedel points out, a shared vision among ‘Europeans’ should be expressed more precisely as ‘believing in belonging’ to Europe. In this sense, Christianity for them is, at best, ‘a culturalized Christianity’ (2018, 216; italics original). The notion of ‘believing in belonging’ to Europe suffers from a lack of content because the shared vision evoked by the cultural symbols necessarily reveals itself to be rather obscure. This will possibly bring forth a ‘tautology of identity: I am what I am, we are us’ because there is no distinct shared conviction among its members (Roy 2019, 153). At most, this cultural self-identity reflects the deep anxiety of national populists over Islam, which seems to be threatening their Christendom. Rogers Brubaker appositely rephrases this compelled forging of self-identity thus: ‘if “they” are Muslim, then “we” must, in some sense, be Christian’ (Brubaker 2017, 1199). If a cultural object, not a religion, is the only marker that differentiates ‘us’ from ‘the others’, a clash or conflict between these cultures is both a condition and a consequence of this difference (cf. Schmiedel 2018, 217). In other words, one’s attachment to cultural markers with no specific signifié can become both a cause and an effect of the confrontation against ‘the others’. We can see this in Murray’s account of European identity, which is based on the ‘transformation of Christian religious symbols into cultural identity markers that are not associated with religious practice’ (Roy 2019, 120; Cremer 2021). Brubaker describes the civilisational and identitarian appeal to Christianity without its concomitant faith as ‘Christianism’, which accurately captures the cultural invocation of Christianity. The civilisational and identitarian Christianism of national populists is, according to him, ‘a precipitate of their preoccupation with Islam’. Remarkably, Brubaker characterises civilisational and identitarian Christianism as a re-articulation of the orientalism scrutinised by Edward Said (Brubaker 2017, 1199–200; Said 1994).

10.6 Primacy of liberty and equality over cultural violence International migrants travel to developed societies for various reasons, no matter the risk level. Some flee long-lasting civil war in their countries while others strive for money, employment, and a better life. Some escape cruel oppression from their own governments and some free themselves from the entrenched patriarchal structure of their local culture. Ayaan Hirsi Ali, a famous Somali-born critic of Islam, was one such desperate international migrant who fled an involuntary marriage with a kinsman forced by her strict Muslim father and the clan surrounding her family. Her dramatic life story

260  Tetsu Sakurai before and after her escape from Nairobi to the Netherlands is described in detail in her well-known books, such that I will not dwell on it at length here. However, suffice it to say that based on her personal experiences in both Africa and the Netherlands, she decided to renounce Islam and has since been arguing consistently for the protection and respect of individual liberties, particularly the rights of Muslim women and women in general, against the threat of and invasion by a section of Muslim men (Hirsi Ali 2008, 2015, 2021). On the one hand, she has been called ‘the perfect feminist hero’ and ‘a champion of free speech and human rights’ by her supporters (Lowry 2015; Mohan 2007, 243). On the other hand, she is criticised, for example, for ‘her clash of civilisations stance’, which allows her to make use of the ‘lens of Islamophobia’ to ‘imagine the United States as a white Judeo-Christian nation, thus erasing all pluralities, multi-ethnic diversity, and multicultural bodies whose rich fabric they make’ (Yaghi 2016). Another critic argues that her ‘writing, from the very start, is a well-thought-out version of the clash of civilizations theory’ and because of this stance, she chooses to ‘adopt the Western Orientalist imaginary of Islam, instead of describing modern-day Muslim reality’ (Oudenampsen 2016, 242). This is not the forum to dwell on these criticisms of Hirsi Ali in detail,8 and let me outline my brief comment on her political stance here. It is undeniable that Hirsi Ali herself adopts the so-called ‘clash of civilisations’ stance when, for example, she presents her basic thesis that we are living through such a clash between Islam and the West and openly argues for the reformation of the five basic concepts of Islam (Hirsi Ali 2015, 2021). However, the stance is not an end in and of itself but a means for her to fight through the clash between Islam and the West and thereby accomplish reformation. For Hirsi Ali, ‘winning’ the clash of civilisations is just a route for restoring and protecting the inviolable human rights of women, gays, and religious minorities. Hirsi Ali herself has witnessed women’s liberties in the Middle East and Africa rolled back since the 1970s and that the ‘force that has done most to reverse women’s rights is patriarchal institutions underpinned by Islamist ideology’ (Hirsi Ali 2021, 270). Her goal is, throughout her writings, the restoration of liberty, equality, and other basic human rights for girls, women, and sexual and religious minorities; these considerations subordinate her every act of political campaigning. In this sense, the critics of Hirsi Ali seem to intentionally replace the moral values she zealously aims to defend with a major-scale political battle between conflicting cultures. In the context of our discussion, we cannot overlook the repetitious cases of ‘honour violence’, forced marriage, and female genital mutilation (FGM) committed in patriarchal communities. Hirsi Ali was herself a victim of FGM at the age of five, and her father’s attempt to force her marriage directly motivated her to seek refugee status in the Netherlands. Hirsi Ali outlines the more recent scale and gravity of such culture-based acts of violence and coercion committed in European countries, revealing that the cultural violence against women has been brought from home societies of recent mass

Reflective inclusiveness  261 immigration to host societies in Europe (2021). Nootash Keyhani convincingly argues against the ‘cultural defence’ used by male perpetrators for honour violence when she points out that it only reinforces patriarchal power and that allowing ‘honour’ as a plea for mitigation runs contrary to the respect of human rights of the victims (2013). Let me only mention the well-known case of Fadime Sahindal, a 25-yearold woman of Kurdish origin who migrated from Turkey to Sweden when she was seven with her family. She was shot to death by her father in 2002 because she had not followed her family’s wish to marry her cousin and had instead fallen in love with a young Swedish man, who was in fact a Swedish Iranian. She had received death threats from her father and brother for at least four years before her death. We cannot help but consider Fadime’s death as a typical case of honour violence in the sense that she was shot to death ‘at the hands of a murderer—a murderer obsessed with notions of honor and dishonor, who had threatened to kill her several times’ before the attack (Wikan 2008, 14).9

Conclusion: reflective inclusiveness as a means of resolution Why did I cite Hirsi Ali’s fight for women’s basic human rights and Fadime’s tragic death here? On the one hand, as I pointed out above, an appeal and attachment to cultural symbols—or, to be more exact, identity markers with no distinct signifié—can cause discord with ‘the others’ or, in a worst-case scenario, even inspire a feeling of antagonism against them among the members of a community. On the other hand, if contemporary European societies share the primacy of belief in liberty, equality, and the idea of universal human rights—which have finally been acquired following a long history of hardship and suffering—it ought to be extremely difficult for them to deny these same rights, including the freedom of faith, to incoming refugees and migrants. In simpler terms, as I have argued elsewhere (Sakurai 2013), if we follow modern Lockean consent theory and consider the membership of liberal states to be based on the voluntary choice of individual would-be citizens, then such a state should logically accept all immigrants who express loyalty and the will to fulfil all the relevant obligations towards that state. For purely liberal states, logically speaking, the promise made by individual immigrants to give up their natural liberties and obey the political authority should be the only relevant pledge required of them to be admitted as full members of the political community. This contractual logic made Albert Dzur flatly declare that ‘voluntary choice cannot legitimate boundary-setting’ (Dzur 2002, 203). Returning to the central question of this chapter—how we can find a way out of the dilemma between nationalistic attachment and the respect for human rights—I should first point out that the appeal to cultural symbols to lay claim to national particularity on the hither side of political borders does not justify the exclusion or unequal treatment of international migrants or asylum seekers who do not necessarily have a strong attachment to those symbols. The current trend of an increasingly globalised world has already made

262  Tetsu Sakurai it inappropriate for us to regard the cultural bonds of a national community as fixed or inflexible. Charles Taylor admits that culture evolves and outsiders even have a chance to codetermine it over time (2000). Similarly, it seems no longer possible to cite a strong nationalistic attachment or affinity to cultural symbols as grounds for offering new membership to a modern liberal state. In this context, I advocate the Habermasian approach, which does not refer to the need for any cultural traits as a criterion for membership in a liberal society: The identity of the political community, which also must not be violated by immigration, depends primarily on the legal principles anchored in the political culture and not on an ethical-cultural form of life as a whole. It follows that one must expect only that immigrants willingly engage in the political culture of their new home, without necessarily abandoning the cultural life specific to their country of origin. (Habermas 1996, 513–14) Characteristically, Habermas distinguishes political culture (politische Kultur) from a cultural form of life (kulturelle Lebensform) and argues that the former does not include any form of common cultural traits. Habermasian political culture unambiguously signifies ‘the common denominator for a constitutional patriotism (Verfassungspatriotismus)’, which asks citizens a comprehensive consensus on individual rights and democratic legal procedures (500; italics original). Notably, Habermas clarifies that immigration should not infringe on ‘the identity of the political community’, thereby implying that immigrants’ cultural forms of life should not violate the political culture of the host society. In other words, the comprehensive consensus noted above is what the liberal society can and should require of would-be immigrants from different cultures. In this sense, I would argue that it is critically important for both immigrants and host societies to share the ideals of reflective inclusiveness to reconcile the conflicting values of nationalistic attachment and human rights. In other words, both sides of political and cultural boundaries need to be reflectively inclusive of other cultures if we want to appease the cultural and moral confrontations we are facing, particularly in host societies. On the one hand, host societies are expected to include and embrace distressed newcomers who have clear differences in religion or worldview, yet follow their home society’s cultural forms of life. This means that the idea of universal human rights requires advanced societies to regard every desperate asylum seeker as the bearer of inviolable human rights in the sense that they are ‘equal in dignity and rights’, as stipulated in Article 1 of the UDHR. On the other hand, asylum seekers and international migrants who need to be admitted and included in liberal democracies should respect and comply with the moral values the host societies attach utmost importance. The rights of ethnic minorities to preserve and maintain their culture and identity might squarely conflict with the individual’s right to self-determination, as we saw in the case of Fadime.

Reflective inclusiveness  263 However, whatever their home culture or religion demands of their fellow members, it should be acknowledged that ‘culture must never take precedence over the individual’s basic human rights [and] that respect for a culture must always be secondary to respect for every human being’s integrity and welfare’ (Wikan 2008, 249; Keyhani 2013). This means that immigrants should not only treat the citizens of their host country but also their fellow community members such as females and sexual minorities following the values of liberty and equality, particularly because they themselves hope to be, or have been accepted and included in the host society under the idea of human rights. This is exactly what the idea of reflective inclusiveness demands for every individual in modern society. More specifically, if a typical asylum seeker who makes the perilous sea crossing from Libya to Europe tells a citizen from a prosperous country, ‘You have to issue us papers [residence permits] … You need to tell us that we can have a future’ (Kingsley 2016, 55), the very first thing the host society can require of him is an explicit acceptance and conformity to the idea of reflective inclusiveness. It might seem unclear why immigrants from non-European societies are obligated to comply with the norms of universal human rights particularly since Section 2 has unequivocally presented Langlois’s argument that the origins of high anthropology that underpin the idea of human rights ‘owe much to the historical influence of Christianity’ (Langlois 2004, 244). I wish to address this issue by distinguishing between the sources and validity of the idea of human rights. As far as EU countries are concerned, the validity of human rights is taken for granted, whatever its sources may be. Reflective inclusiveness requires that, when you want to be admitted and included by a host society that respects the validity and moral values of human rights, you, in your turn, should also respect them precisely because they are what vindicate your legitimate status in the society. This reflective request applies to you even if you do not share faith in the religion, Christianity in this case, that has presumably inspired a high anthropology for the idea of human rights, because it is not sources but validity of human rights that matters here. The idea of reflective inclusiveness is similar to Will Kymlicka’s notion of liberal multiculturalism, particularly when he distinguishes between two kinds of rights that a minority group might claim, namely ‘external protections’ and ‘internal restrictions’ (1996, 35–44). On the one hand, Kymlicka defines the first as ‘the right of a group against the larger society, designed to protect the group from the impact of external pressures [such as] the economic or political decisions of the larger society’ and considers it generally legitimate and consistent with liberal principles. On the other hand, he believes that the latter contradicts the liberal commitment to individual autonomy because of its claim that ‘groups can legitimately restrict the basic civil or political rights of their own members in the name of preserving the purity or authenticity of the group’s culture and traditions’ (Kymlicka 2001, 22). I am particularly sympathetic to his scepticism about the idea of internal restrictions because it goes against the idea of reflective inclusiveness when it forbids its members from expressing dissent of the group’s traditions and

264  Tetsu Sakurai customs—whatever the reason—and infringes on their basic civil and political rights.10 Keyhani, too, reasonably criticises multiculturalism that leaves power imbalances within groups and points out that it is a fundamental challenge of liberal multiculturalism to distinguish ‘between enabling and oppressive cultural norms’ (2013, 271) Two months before her death, Fadime Sahindal, a victim of honour violence in Stockholm, gave a speech in a seminar titled ‘Integration—On Whose Conditions?’ organised by a community network, Violence Against Women, which was kept secret for her security. Fadime told the audience that she had made up her mind that she would explain why and how she had been expelled from her family, thereby receiving relentless death threats from its male members, in the hope that it might help other immigrant girls, so that others won’t have to go through what I’ve had to endure … Regardless of one’s cultural background, it should be obvious that every young woman should be able to have both her family and the life she wants for herself. (quoted in Wikan 2008, 231) However, in hindsight, her public appearance eventually ‘weakened her chance of survival’, most probably because her talk in the Old Parliament Building made public the internal ‘dishonour’ of the family (6). Wikan’s comment on the fate of Fadime is revealing: She stood for an inclusive view of humankind, universal in its emphasis on the individual’s irreducible value. She represented freedom and equality, regardless of gender, religion, and ethnicity. She was against narrowness of vision and wanted to reconcile warring factions among those who believe that they are the only guardians of truth, a truth that is theirs forever. Fadime embraced all and everyone. (Wikan 2008, 24) When both host societies and accepted newcomers are convinced of the accommodative value of reflective inclusiveness as an integral part of Habermasian ‘political culture’ which the liberal state requires every immigrant and refugee as well as its citizens to accept and follow, we may expect that the integration of international migrants and their life prospects will change for the better, however slow the process may be.

Notes 1 I addressed this dilemma from another angle in Sakurai (2020). 2 Incidentally, this anxiety is not necessarily irrelevant to Japan, a non-Western and non-Christian country that had its very modern Constitution crafted by the Allied Powers in the wake of its defeat in the Second World War. The post-war notion of democracy and the idea of human rights were quite new to Japanese people then. It is curious to note that the Liberal Democratic Party, which has

Reflective inclusiveness  265 been the ruling party almost continually since the party’s founding in 1955, has invariably included ‘a self-motivated revision of the current Constitution’ among its priority policies. The Liberal Democrats’ long-cherished ambition has not been implemented so far. It seems to me that the respect for the idea of human rights, particularly for the human rights of non-Japanese people from developing countries, has not penetrated deeply enough into people’s consciousness. This might be related to the fact that Japanese society has been very ambiguous and even unconcerned about religion, including Christianity, throughout its history. 3 In fact, Kulikovsky admits that a wide variety of social rights stipulated by articles 22–30 have no corresponding commands in Biblical Christianity. He does add, however, that Christian ethics still affords the basis for providing certain social benefits, such as ‘Christian love, compassion, grace, mercy, generosity, and good will toward our fellow human beings who are all made in God’s image’ (2018, 205). 4 At the same time, it is necessary to pay enough attention to the actual condition that ‘populist category is extremely heterogeneous’ and comprises a broad spectrum from ‘a Christian pole, like the Polish PiS, and Marine Le Pen’s niece Marion Maréchal’ to ‘a secular pole, encompassing most of the populists in Northern Europe’ (Roy 2019, 109–28). 5 Jan-Werner Müller has it completely right when he points out that ‘populism is always a form of identity politics’ (2017, 3; italics original). 6 It is worth noting that, despite the utmost importance of Christianity, this manifesto refers to the word ‘Christian(ity)’ only four times, giving no detail of what ‘Christian tradition’ means (AfD 2017). Apparently, the AfD invokes Christianity only as a cultural marker, not as a religious faith, and selectively drops ‘empathy for refugees’ from the Christian tradition (Althoff 2018, 358). 7 The 2009 decision was a really ‘counter-majoritarian’ European court decision. As regards the turmoil it caused in European societies, see Joppke (2013) and Puppinck (2012). 8 See Grewal (2012), for example, for details of criticisms from postcolonial feminists. 9 Naturally, we should be careful not to readily connect honour killing to a specific religion, particularly Islam. Unni Wikan reminds us that ‘[h]onor killing is not an Islamic practice. Islam does not justify it. Honor killing is unknown, and would have been unheard of, in many Muslim societies. It has been practiced among Christians, Hindus, Buddhists, Confucians, and others, as documentary evidence shows. … Islamic law, sharia, can make it relatively easier for those looking for an Islamic sanction of violence against women. But liberal Muslims insist that it is a misinterpretation and a misuse of sharia, a literal reading of texts written down more than a thousand years ago’ (Wikan 2008, 248). 10 In a more recent paper, Kymlicka rephrases his scepticism about internal restriction as follows: ‘In so far as historically excluded or stigmatised groups struggle against earlier hierarchies in the name of equality, they too have to renounce their own traditions of exclusion or oppression in the treatment of, say, women, gays, people of mixed race, religious dissenters, and so on’ (Kymlicka 2010, 100), a notion with which I vehemently agree.

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Conclusion Mauro Zamboni

As briefly pointed out by Tetsu Sakurai in the Introduction of this book, since the Japanese project of which this work is a part of—namely the Coreto-Core Program on ‘Research on the Public Policies on Migration, Multiculturalisation and Welfare for the Regeneration of Communities in European, Asian and Japanese Societies’—started in 2016, the phenomenon of migration fluxes appears to have lost, though momentarily and for the wrong reasons, its emergency character. However, the main objective of this book remains steadfastly present and relevant, at least from the perspective of legal discourse, since it tackles a problem embedded in the political form of organisation known as the state (and state-based supranational organisations): its structural difficulty to legally relate itself to vast migrations of human beings across national borders. In particular, this book aims to confront, discuss, and clarify the structural antinomy extant in the legal discourse between the state and the state’s obligation to protect human rights. At least since the United Nations’ Universal Declaration of Human Rights (1948), this confrontational relationship has been a clear feature of the problems that may be arise in a political organisation of world relations grounded on nation states. On one side, there is the traditional and established claim by the state to sovereignty, in that it has the legal capacity to decide on how and what to regulate when pertaining to matters taking place within its borders. On the other side, since the end of the Second World War, the emergence of the ‘culture of rights’ is equally undisputed in the legal discourse, following the assumption that there are rights that are assigned by international public law to individuals (or groups of individuals) merely due to them being human beings; this means that they are assigned to people regardless of state regulations and of people’s formal belonging (e.g. through citizenship) to a certain state community. The law is central to how the state and its sovereignty relates to migration issues, particularly to the rights of migrants, because both categories find in the law the preferred (or often the ultimate) tool to promote and establish themselves in a political community. Although the terms sovereignty and rights are now used in many other contexts, they have their primary sources in the legal discourse. For example, national and supranational legislations are the favourite tools through which the state apparatus attempts to DOI: 10.4324/9781003102717-15

270  Mauro Zamboni regulate and limit the entrance of migrants in its own sphere of sovereignty; concomitantly, migrants usually bring into the fore par excellence legal actors, namely the national or supranational courts, as the ultimate defence of their rights against the state. It goes without saying that the difficult relations between sovereignty and rights from a legal discourse perspective are a general feature of modern societies, being spread throughout the entire spectrum of the social, economic, and political arenas within a certain community. For instance, in the economic arena, the legal controversies surrounding the state’s right to expropriate an individual’s private property are quite diffuse in many democracies. However, perhaps the problems around the association between individual or collective fundamental rights and the legal competence assigned to the state manifest themselves in the clearest way when the topic pertains to migration. There are many reasons underlying the ‘visibility’ of these conflictual interactions when looking at the regulation of migration fluxes. Just to name one, migration spotlights the hard-core of the two legal concepts of state sovereignty and fundamental rights, showing that, when considered separately, the individual existence and implementation of these concepts are quite uncontroversial: on one side, there is the right of the state to decide who may live within its national borders; on the other side, there are some of the most fundamental universal rights of individuals, including the right to live or the right to have a family life at the place of their choosing. This book aims to investigate these state-rights problematic relations by studying them from the perspective of the legal discourse in its broad sense. Accordingly, the ‘legal discourse perspective’ is conceived and used in this book not to simply look at the conflict from the point of view of the legal actors involved and their scholarships—which would configure the narrow sense of the legal discourse—but to investigate the role that law plays or may play in such an intricate relation. Particularly, the framework of this book follows the notion that migration fluxes and forces have a complex, and sometimes even contradictory, nature (e.g. economic migration vs political migration, ethnicity vs integration, and humanitarian reasons vs political opportunism). Therefore, holistically understanding the issues at stake mandates an outlook that stretches beyond the simple examination of the black letter of the law and how legal actors see and use it; that is, it is essential and unavoidable to use a multidisciplinary perspective to probe into how the state or state-based law conceives or should conceive its role in confronting migratory fluxes. Based on this assumption, the state law and its relation to migration are investigated not only from the standpoint of legal philosophy (Chapter 5) but also from that of constitutional law (Chapter 6), international public law (Chapter 8), legislative studies (Chapter 4), and EU law (Chapter 7). Then, to better understand the facts and ideologies behind the purely legal matters related to the topic at hand, the book also includes the perspectives of political science (Chapter 3), migrations studies and ethics (Chapter 9), international relations (Chapter 2), and history of ideas (Chapter 1).

Conclusion  271 The choice in favour of a multidisciplinary approach and limiting the range of the investigations to the law indicate that the book does not aim to resolve the problems surrounding the complex relation between state sovereignty and the challenges posed by migration to the legal discourse once and for all. Actually, looking at the sum of all contributions, the fundamental message of this work emphasises moving away from ‘trying to solve the issue’ and towards understanding that all possible venues to solve the issue in a ‘legal way’ must start from one proposition: fundamental rights are the goal of the law, and the state’s sovereignty and regulatory tools are only the means— even if essential—to reach these goals. Namely, the underlying message throughout all the chapters of this book to the prospective legal literature and practice is that a fundamental shift is taking place in the legal discourse. Regarding migration issues, during the ‘golden age’ of the nation state (ideally since the Peace of Westphalia in 1644), state sovereignty was considered as the final and decisive goal according to which and for which laws that superseded the movements of human beings across national borders were created. Today, since the outset of a post-national world (ideally since the end of the Second World War and the United Nations’ Universal Declaration of Human Rights in 1948), the state apparatus and its interests can still be regarded as key figures and criteria for migration regulation, albeit we believe that these interests should always be understood as means to reach the higher goal of the realisation of human rights. To recalibrate the legal discourse on migration from a national to a post-national context, the authors have suggested three major areas where the law and its actors may ‘re-think’ the complex relation between state sovereignty and individuals’ rights to move from one country to another. First, revising and re-adapting the terminology of the legal and political discourses surrounding the phenomenon of migration, in particular when it comes to its basic components, is warranted. In this direction, Rainer Keil uses historical analysis in Chapter 1 (Human Rights to Asylum and Non-Refoulement) to push forward the significance of going back to the historical roots of the term ‘rights’, particularly the ‘right to asylum’ terminology used in continental Europe. Similarly, Kevin Ip and Joshua Kassner—in Chapters 2 (Selfdetermination and Immigration Control) and 3 (International Borders, Immigration and Nondomination), respectively—discuss and re-adapt the current situation of the traditional concepts behind the legal categories of sovereignty and rights, namely the political ideas of ‘self-determination’ and ‘freedom’, from a more political point of view. Second, another group of authors aspire to give traction to structural changes in the approach used to tackle legal issues raised by migration in relation to the sovereignty of the state. In Chapter 4 (Law-Making to Face the Migration Crisis), Mauro Zamboni considers the necessity of increasing the quasi-legislative role that the courts play in migration issues, which should be operationalised by reducing the law-making space assigned to public agencies. On the same path, Akiko Ejima in Chapter 6 (The Gap between Constitutional Rights and Human Rights) suggests the use of

272  Mauro Zamboni constitutional mechanisms to enforce the aliens’ rights at the highest, and therefore legally strongest, level. Regardless of the regulatory regime chosen, in Chapter 5 (Can the Law Create Discrimination?), Valeria Marzocco points out that lawmakers should consider the rights to emigrate and immigrate as a ‘Janus two-faces’ legal category. Third and finally, the book generally boosts the setting up of individuals and their rights at the centre of the legal discourse about migrants and state sovereignty. This repositioning of the placement of human beings, putting them at the centre of migration law, is achieved in different ways across chapters: Stefan Schlegel in Chapter 8 (Does International Human Rights Protection Trigger a Copernican Revolution for Immigration Law?) urges the need to consider human rights and their protection as the ultimate normative criterion governing migration law; Frederik von Harbou stresses the idea that fundamental rights in the legal discourse at the EU have a principle status (i.e. they are valid regardless of and above all other policy considerations) in his Chapter 7 (From Formalist Circumvention to Substantive Fulfilment); Steven Scalet’s Chapter 9 (Migration, Neighbourliness, and Belonging) pushes the bar even further, emphasising the need not only for the measures taken by the state apparatus to legally recognise migrants, such as by offering citizenship, but also for developing the virtue ethics of ‘neighbourliness’, which encompasses the aspirations and attitudes related to good relationships among newcomers and old-timers living in neighbourhoods. In sum, regardless of the stand taken on the several and diverse subjects tackled in the book, this volume sends out a strong and clear message for future research on the legal aspects connected to the migration phenomenon. The antinomy between sovereignty and rights, particularly within the context of migration, is an extremely complex issue. Despite the simplistic and often dualistic solutions broadcasted in the political arena (e.g. open borders vs closed borders), a serious addressing of the legal issues raised by migratory fluxes vis-à-vis the state’s claims pertaining to its own territory entails taking the premise that such matters must be dealt with at multilevel stages and investigated from a multidisciplinary perspective. Accordingly, a resolute solution to the conflictual association analysed in this book should widen beyond both the idea that it is a simple question of state vs individual and the notion that it is either a pure legal (i.e. a monopoly of the legal actors) or political matter (i.e. outside the scope of the competence of legal discourse players. To conclude, the authors of this book point out the preliminary steps to be taken in the legal arena, as follows: first, recalibrate ‘what’ participants in the legal discourse talk about when confronting the issues raised by migration in relation to the state (Part I); second, redefine ‘how’ (i.e. modalities and criteria used) to regulate migratory fluxes (Part II); third, mandatorily relocate ‘where’ individuals and their rights stand in these clashes between migration and the state apparatus (Part III). All three operations must be performed following one basic paradigm, which is described by Tetsu Sakurai in his Chapter 10 (Reflective Inclusiveness as a Bridge between Human

Conclusion  273 Rights and Nationalistic Attachment). It is clear that human rights, their respect, and their implementation serve as the basis for navigating in the troubled seas wherein the migrants’ rights collide with the state’s sovereignty. However, as pointed out by Sakurai, the bearers of such rights are concrete beings operating (or who will operate) in the political and social realities that go past the abstract concept of ‘state’, namely the national communities. Therefore, while the idea of fundamental rights must be the ultimate goal of and criterion for every legal approach to the problematic relations between migrations and the state, this paramount role of fundamental rights in the legal discourse can be maintained under the precondition that the holders of such rights are willing to recognise the basic values at the root of the order of the recipient community.

Index

Note: Page numbers followed by “n” refer to notes. Abe, Shinzo 149 administrative legislative model 103, 104, 106, 107, 109, 110 administrative legislative policy 106, 108, 109 Alexy, Robert 175 Alhambra-Decree of Expulsion 30 Ali, Hirsi 261 American immigrants 61 Anderson, Benedict 2, 245, 255 Arab Spring crisis 207 Arendt, Hannah 36, 41, 222 argumentative approach 74, 83 Aristotle 225, 227 Articles on State Responsibility (ASR) 173 Articles on the Responsibility of International Organizations (ARIO) 173 asylum: in Grotius’s work 36–39; human rights to 39–44; inter-state legal relations 20–26; nonrefoulement in current international law 18–20; of political character 33–36; rights to an asylum procedure 33–36 Barbeyrac, Jean 136 Basic Plan for Immigration Control and Residency Management 149 Bauman, Zygmunt 5, 6, 7, 246 Becerra, M. Victoria Quiroz 221, 240n11 Beck, Ulrich 6 Benhabib, Seyla 144 Berlin, Isaiah 75 Bertram, Christopher 67 Böckenförde, Ernst-Wolfgang 178

Brandeis, Louis 251 Brown vs. Board of Education 117 Brubaker, Rogers 259 Bundesverfassungsgericht 175, 176 Bung, Jochen 39 Carens, Joseph 83, 85, 86, 222, 223, 231, 237, 239n8, 240n19 carrier sanctions 172 Cebulak, Pola 199 ceteris paribus arguments 74, 83–85 Christianity 30, 31, 36, 245–263 clash of civilisations 260 Cohen, Roger 241n24, 241n25 Common European Asylum System (CEAS) 199 conceptions of freedom 75, 79 Constitutional rights and human rights: demystifying ‘no immigration,’ 149–151; domestic implementation of human rights treaties 158–159; history of 151–154; international human rights treaties 156–158; Korean residents in Japan 160–161; status of foreigners 154–156; Technical Intern Training Programme (TITP) 161–163 Constitution of the Empire of Japan (CEP) 151 Convention and Protocol Relating to the Status of Refugees 44 Convention and the Protocol Relating to the Status of Refugees 45 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 156–159, 194 Convention on the Status of Refugees 37, 46

Index  275 Copernican revolution 10, 186–208, 272; Ptolemaic view 206 counter-movements in courts: Embassies: X and X v. Belgium 201–203; Fences: N.D. and N.T. v. Spain 203–205; Islands: NF, NG, und NM v. European Council 200–201 Court of Justice of the European Union (CJEU) 175 crimes against humanity 37, 46 cultural and identity-linked symbol 256 culture of rights 117, 118, 269 Cupitt, Don 247, 252 decision-making process 61–63, 67, 78, 85, 90 demystifying ‘no immigration,’ 149–151 Derrida, Jacques 138, 139 De Soto, Hernando 239n7 De Vattel, Emer 27, 38 de Vitoria, Francisco 137 Dewey, John 222 De Wilde, Marc 17, 24, 29, 30, 31, 32, 33, 38, 40 dialectic tension 206 Diderot, Denis 27 Dilthey, Wilhelm 176 Dürig, Günter 177 Dworkin, Ronald 175 Ejima, Akiko 10, 271 Ellickson, Robert C. 239n7 emancipatory dynamic 10, 11, 186, 187, 190–205 emancipatory dynamic of jurisprudence: non-refoulement 190–194; right to family life 194–196; right to private life 196–198 emigration 6, 9, 59, 68, 134–136, 139 Essai sur les Privilèges 4 ethics of newcomers and old-timers 217–218 EU migration policy 171; consequences for 181–182; ECHR 178–179; EU-CFR 180–181; formalist circumvention 172–174; fundamental rights 175–178; non-refoulement 172, 173; rules and principles 174–175 European Convention on Human Rights (ECHR) 173, 175, 178–182, 188, 190, 191, 195, 196, 204

European Court of Human Rights (ECtHR) 135, 173–175, 188, 191, 192, 194–198, 200, 202–204, 207, 208, 255–257 European governments and courts 255–258 exit ramps: community of belonging 232; morality and interests 231–232; negotiating aspirations in ethics 233–234; neighbourliness 232, 238 expulsi 7, 18–21, 25, 26, 28–33, 36–39, 44, 144, 173, 174, 182, 195, 197, 204; admission of 26–29; notion of 32; On the Law of War and Peace 31–33; Remonstrantie on the Regulations Regarding Jews 29–31; settlement of 38 Federal Constitutional Court 175–179 female genital mutilation (FGM) 260 foreign-born residents 57 Foreign Nationals Act 103, 104, 106 Forsthoff, Ernst 177 free cross-border movement 140, 141 freedom: of association 58–60; of cross-border movement 139–141; of international movement 68–69; as nondomination 8, 73–80, 86, 88; as non-interference 8, 75 García-Mora, Manuel R. 39 Gedalof, Irene 240n18 Geisteswissenschaften 176 Gellner, Ernest 244, 245 gentrification 69 Gray, John 250 Grewal, Kiran 265n8 Griffin, Chris 241n26, 241n27 Griffin, Christopher 239n6 Griffin, James 40 Grotius, Hugo 8, 17–46 Hartmann, Nicolai 176, 262 Hate speech 151, 160–163 Hate Speech Elimination Act (HSEA) 160, 161 Hegel, Friedrich 176 Hesse, Konrad 178 Hirschman, Albert 82 Hirsi Ali, Ayaan 259, 260 Hohfeldian typology 76 Hohfeld, Wesley Newcombe 76 home, neighbourhood, and belonging 219–225 human rights and border control 10–12

276 Index Human Rights Committee of the CCPR (HRC) 160 human right to asylum 39–44 Imagined Communities 2, 255 immigration 1, 5, 6–11, 54–70, 73–92, 99, 106, 134, 135, 137, 139, 142, 150, 151, 163, 186–208, 216, 218, 224, 237–238, 246, 247, 252–255, 258, 261, 262, 271 Immigration and Nationality Act 89 immigration control 8, 54–68, 149 Immigration Control and Residency Management 149 Immigration Services Agency of Japan (ISA) 149 international borders, immigration, and nondomination: conflict remains 83–86; current debate 73; evaluating the legitimacy 81–83; international political boundaries legitimate 86–88; Northern Triangle 9, 73, 88–92; preliminary matters 74–77; provisional argument 77–81; US immigration and border control policy 88–92 international crimes 37, 46 International Law and Asylum as a Human Right 39 international migration regime 65–69 Ip, Kevin K. W. 8, 70n10, 271 ius migrandi 9, 135–139; balancing individual rights and public interest 136; conditional nature of 139; doctrine of 139; dual nature of 138; explicit theorisation 137; migration and territorial sovereignty 138 Jellinek, Georg 26 Joppke, Christian 257, 265n7 judicial legislative model: (un)accountability 116–118; (un)feasibility 116–118; migration regulation 114, 115; statutedominated model 110; statutory legislative model 110–113; structural flaw in administrative model 107–110 jurisdictional authority 60, 61 jus 25, 37, 38, 42, 43, 45 justice, policy, and the ethics of local interaction 237–239 Kadelbach, Stefan 17 Kant, Immanuel 27, 40, 138, 230

Kassner, Joshua J. 8, 241n27, 271 Keil, Rainer 8 Keller, Simon 241n23 Kelsey, Francis W. 24, 25 Keyhani, Nootash 261, 264 Kimminich, Otto 34 Kinzel, Till 219 Korean residents in Japan 160–161 Kottusch, Peter 188 Kuhn, Thomas 206 Kulikovsky, Andrew 250, 251, 265n3 Kymlicka, Will 263, 265n10 Landau, Peter 39 Langlois, Anthony 248, 249, 250, 251 The Law of War and Peace 17, 20, 31–33, 35, 36 Lebar, Mark 241n27 legislative policy: administrative model 100; judicial model 100–101, 106–118; on migration crisis 102–106; statutory model 99–100; typology of 101 legitimacy of international borders 8, 73, 74, 77, 78, 81–83, 85, 88, 92 Leibniz, Gottfried W. 41 liberal immigration policy 247 liberal multiculturalism 263–264 Litt, Theodor 176 Locke, John 27, 138 Lowe, Barbara J. 222 Luther King, Martin, Jr. 240n17 MacArthur, Douglas 151 MacIntyre, Alisdair 241n23 Madsen, Mikael Rask 199 Malsbary, Christine Brigid 231 Maréchal, Marion 265n4 Marzocco, Valeria 9, 272 Mason, Andrew 222 the McLean case 151, 154–156 Meaning of the West 252 Meijer, Jacob 39 Ménard, Robert 257 Mengozzi, Paolo 182, 202 Merkel, Angela 251, 252, 253 Migrant Integration Policy Index (MIPEX) 150 migration and sovereignty 134, 135, 137, 139–144 Migration Court of Appeal 105 Miller, David 55, 56–57, 62, 63, 70n2, 70n4, 83, 85 Modernity and the Holocaust 246 Moore, Margaret 60, 61, 65

Index  277 Moria Reception and Identification Centre 171 Müller, Jan-Werner 265n5 Murray, Douglas 246, 247, 248, 251, 252, 258, 259 National human rights institutions (NHRIs) 158, 159 nationalism 2, 207, 235, 244, 245, 255 the Nationality Act 89, 153, 158, 159 national sovereignty and rights of immigrants 7–9 Nations and Nationalism 245 neighbourliness 225–231; advantage of 230; bare recognition 226; belonging and prospects 234–237; inevitable change 229; neighbourhood virtue 226; oldtimers and newcomers 228 Nellen, Henk 35 New Pact on Migration and Asylum 143 Nickel, James 42, 43 Nicomachean Ethics 225 non-domination 8, 54, 65–69 non-refoulement 172, 173, 190–194; in current international law 18–20 Northern Triangle 9, 73, 88–92 Nozick, Robert 234 On the Law of War and Peace 17, 31–33, 35, 36 Orwell, George 244 Patriotische Europäer gegen die Islamisierung des Abendlandes (PEGIDA) 245 Paz, Moria 207 Pettit, Philip 65, 66, 68 political and migration authorities 198–200 political character of asylum 33–36 political community 2, 8, 10, 55–60, 63, 64, 67, 78, 79, 80, 85–88, 134–138, 222, 245, 256, 261, 262, 269 political self-determination 8, 54–57, 59, 61, 64, 65, 73, 78, 79, 85–88, 237 Pradier-Fodéré, P. 24 productive disharmony 44 Prolegomena 20, 32, 41, 43 Ptolemaic view 206 Puppinck, Gregor 265n7

Rabbie, Edwin 35 Rahmenordnung 178, 179 Rajendra, Tisha M. 239n4 Rawls, John 249 reflective inclusiveness 261–264 Reinhardt, Karoline 44 Remonstrantie on the Regulations Regarding Jews 29–31 republican commitment 73, 74, 79, 86 restratification 6 right to select immigrants 67, 70n10 Rousseau, Jean-Jacques 3, 4, 40, 41 Roy, Olivier 252, 253, 254 Sahindal, Fadime 261, 264 Said, Edward 259 Sakurai, Tetsu 54, 240n20, 241n27, 269 Sato, Tatsuo 152 Scalet, Steven 11, 272 Scheffler, Samuel 240n10, 241n22 Scheler, Max 176 Schlegel, Stefan 10, 272 Schmidtz, David 240n14 Schmiedel, Ulrich 245, 259 Schmitt, Carl 177 Schnapper, Dominique 12n1 self-determination: associational account 54, 58–60; border coercion 63; boundary of 63–65; culturalnationalist account 55–58, 70n4; defenders of 62; democratic account 54, 60–62; external legitimacy 63; non-domination 65–69; noninterference model 62–65; political 8, 54–57, 59, 61, 64, 65, 73, 78, 79, 85–88, 237 Sieyès, Emmanuel Joseph 3–5 Singer, Peter 44 Singer, Renata 44 Smend, Rudolf 176 Smith, Anthony 244–245 Song, Sarah 60–62 sovereignty 1–5, 7–9, 11, 19, 23, 62, 74, 81, 115, 133–145, 151, 153, 154, 163, 186, 190, 198, 205, 207, 208, 216, 233, 237, 245, 246, 269–273 Spranger, Eduard 176 state legislation and the statuses of immigrants 9–10 Stoyanova, Vladislava 203 The Structure of Scientific Revolutions 206

278 Index Supreme Commander for the Allied Powers (SCAP) 151–153 Swedish lawmakers 9, 97–99, 104, 108, 114, 115 Swedish legal system 113 Swedish welfare model 97, 98 Syrian refugee crisis 110 Taylor, Charles 262 Technical Intern Training Programme (TITP) 10, 155, 159, 161–163 Tiedemann, Paul 45, 46 Tießler-Marenda, Elke 20, 21, 32, 33, 34 Toner, Christopher 219, 240n16 Torpey, John 102 Torres, Carlos Alberto 231 Tsolidis, Georgina 222, 235 Tuck, Richard 24, 27 Universal Declaration of Human Rights (UDHR) 19, 135, 248, 251, 262, 269, 271

US Expatriation Act 135 US immigration and border control policy 88–92 van Heemskerck, Jakob 26 van Nifterik, Gustaaf 36, 42 Verfassung und Verfassungsrecht 176 Vermeulen, Bernardus Petrus 43 Vitoria, Francisco 26, 30 von Harbou, Frederik 10, 240n20, 272 Walzer, Michael 55, 56, 61, 70n1 Warrens, Samuel 251 Wellman, Christopher H. 58–60, 61, 62, 63, 65, 70n3, 70n9 What is the Third Estate 3–5 Wiebusch, Micha 199 Wikan, Unni 264, 265n9 Wilhelm, Georg 176 Young, Iris 8, 54, 62, 64, 66–68 Zamboni, Mauro 9, 54, 241n27