Refugees, Democracy and the Law: Political Rights at the Margins of the State [1 ed.] 9781003027355, 9781000175783

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Refugees, Democracy and the Law

The book provides an in-­depth discussion of democratic theory questions in relation to refugee law. The work introduces readers to the evolution of refugee law and its core issues today, as well as central lines in the debate about democracy and migration. Bringing together these fields, the book links theoretical considerations and legal analysis. Based on its specific understanding of the refugee concept, it offers a reconstruction of refugee law as constantly confronted with the question of how to secure rights to those who have no voice in the democratic process. In this reconstruction, the book highlights, on the one hand, the need to look beyond the legal regulations for understanding the challenges and gaps in refugee protection. It is also the structural lack of political voice, the book argues, which shapes the refugee’s situation. On the other hand, the book opposes a view of law as mere expression of power and points out the dynamics within the law which reflect endeavors towards mitigating exclusion. The book will be essential reading for academics and researchers working in the areas of migration and refugee law, legal theory and political theory. Dana Schmalz is a scholar of international law and legal philosophy. She is a postdoctoral fellow of the Alexander von Humboldt Foundation and a visiting scholar at Columbia Law School, New York.

Law and Migration Series Editor Satvinder S. Juss

King’s College London, UK

Migration and its subsets of refugee and asylum policy are rising up the policy agenda at national and international level. Current controversies underline the need for rational and informed debate of this widely misrepresented and little understood area. Law and Migration contributes to this debate by establishing a monograph series to encourage discussion and help to inform policy in this area. The series provides a forum for leading new research principally from the Law and Legal Studies area but also from related social sciences. The series is broad in scope, covering a wide range of subjects and perspectives. Other titles in this series: Refugee Law and Durability of Protection Temporary Residence and Cessation of Status Maria O’Sullivan Implementing EU Mobility Partnership Putting Soft Law into Practice Fanny Tittel-­Mosser Persecution, International Refugee Law and Refugees A Feminist Approach Mathilde Crépin Human Rights and The Revision of Refugee Law Romit Bhandari Refugees, Democracy and the Law Political Rights at the Margins of the State Dana Schmalz For more information about this series, please visit: www.routledge.com/ Law-­and-Migration/book-­series/LAWANDMIG

Refugees, Democracy and the Law Political Rights at the Margins of the State  Dana Schmalz

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Dana Schmalz The right of Dana Schmalz to be identified as author of this work has been asserted by her 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 utilized 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 Library of Congress Cataloging-­in-Publication Data Names: Schmalz, Dana, author. Title: Refugees, democracy and the law : a deficit of rights / Dana Schmalz. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Law and migration | Based on author’s thesis (doctoral–Johann Wolfgang– Goethe–Universität, Frankfurt, 2017) issued under title: World citizens at the border : democratic theory, international law, and the figure of the refugee. | Includes bibliographical references and index. Identifiers: LCCN 2020014554 (print) | LCCN 2020014555 (ebook) | ISBN 9780367461676 (hardback) | ISBN 9781003027355 (ebook) Subjects: LCSH: Refugees–Legal status, laws, etc. Classification: LCC KZ6530 .S354 2020 (print) | LCC KZ6530 (ebook) | DDC 341.4/86–dc23 LC record available at https://lccn.loc.gov/2020014554 LC ebook record available at https://lccn.loc.gov/2020014555 ISBN: 978-0-367-46167-6 (hbk) ISBN: 978-1-003-02735-5 (ebk) Typeset in Galliard by Wearset Ltd, Boldon, Tyne and Wear

Contents



Table of cases Acknowledgments



Introduction

vii viii 1

Part I

The refugee

13

1 Who is a refugee?

15

2 Who decides who is a refugee?

27

Part II

Democracy’s edges

41

3 Citizenship and the claiming of rights

43

4 Democracy between the need for institutions and demands of inclusion

60

Part III

The legal conditions of refugees’ political voice

89

5 Institutions of refugees’ political participation

91

6 The role of associative rights for refugees’ political voice

106

vi   Contents

7 Humanitarian government and the political membership of refugees

121

8 Political representation of refugees in international forums

151



Outlook

167



Index

171

Table of cases

Administrative Court (Verwaltungsgericht, VG) Karlsruhe, decision of January 29, 2015, 7 K 57/15. Court of Justice of the European Union (CJEU), Opinion of Advocate General M. Paolo Mengozzi, C-­638/16 (X and X v. Belgium), delivered on February 7, 2017, ECLI:EU:C:2017:93. European Court of Human Rights (ECtHR), Sh.D. and others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, Application no. 14165/16, June 13, 2019. European Court of Human Rights (ECtHR), Perinçek v. Switzerland, Application no. 27510/08, Grand Chamber decision, October 15, 2015. European Court of Human Rights (ECtHR), Hirsi Jamaa and others v. Italy, Application no. 27765/09, Grand Chamber decision, February 23, 2012. European Court of Human Rights (ECtHR), Hirst v. the United Kingdom (No. 2), Application no. 74025/01, Grand Chamber decision, October 6, 2005. European Court of Human Rights (ECtHR), Bankovic and others v. Belgium and others, Application no. 52207/99, Grand Chamber Decision as to the admissibility, December 12, 2001. European Court of Human Rights (ECtHR), Piermont v. France, Application no. 15773/89; 15774/89, April 27, 1995. German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), decision of July 4, 2012, 2 BvC 1/11. Human Rights Committee, Concluding Observations (November 9, 1995), UN doc CCPR/C/79/add.59. International Court of Justice (ICJ), Nottebohm (Liechtenstein v. Guatemala), April 6, 1955. US Supreme Court, Fong Yue Ting v. United States, May 15, 1893, 149 U.S. 698.

Acknowledgments

It has been a privilege to work on this book, a privilege I owe to the support of many people and institutions. As the book is based on my doctoral dissertation, I want to thank first and foremost my supervisor Armin von Bogdandy and the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. I wrote my dissertation between 2011 and 2016 while working at the Institute. Armin von Bogdandy offered insightful advice and critique over those years, as well as the trust and patience that allowed me to develop my own thoughts. During my time in Heidelberg, I enjoyed the pleasant company and academic brilliance of many colleagues and guests: Carlino Antpöhler, Sabiha Beg, Iris Canor, Blake Emerson, Marie von Engelhardt, Anuscheh Farahat, Michaela Hailbronner, Michael Ioannides, Jannika Jahn, Alexandra Kemmerer, Matthias Kottmann, Christoph Krenn, Raffaela Kunz, Isabelle Ley, Michael Riegner, Stephan Schill, and Benedict Vischer should be specifically mentioned in that regard. I am indebted to Günter Frankenberg, who acted as second reader of the thesis with valuable comments. The affiliation with the Cluster of Excellence “Normative Orders” at the University of Frankfurt was a wonderful opportunity for exchange with colleagues from political theory and philosophy. Among the most formative phases for my doctoral thesis and my academic thinking were five months that I spent at the Global Trust Project directed by Eyal Benvenisti at Tel Aviv University in spring 2014. Further persons whose comments and advice have been invaluable at various stages include Alexander Aleinikoff, Jürgen Bast, Seyla Benhabib, Hannah Birkenkötter, Marcus Carlsen Häggroth, Pauline Endres de Oliveira, Andreas Fischer-­Lescano, Ayten Gündoğdu, Axel Honneth, Itamar Mann, Thilo Marauhn, Nora Markard, Anne Peters, Patricia Tuitt and Christian Volk. I am obliged to Jeff Crisp, Volker Schimmel, and Dominik Bartsch, who spoke with me about policies and practices of inclusion in refugee camps and helped me gain a better idea about UNHCR’s work. Moreover, I am grateful for the support of the German National Academic Foundation throughout the time of writing the dissertation. The process of transforming the thesis into a book manuscript began during my time as a postdoc at the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen from 2017 to 2018. I am indebted to Ayelet Shachar for her support and thankful for the exchange with amazing colleagues

Acknowledgments   ix like Stefan Schlegel, Max Scholz and Benjamin Boudou. In 2018/2019, I spent six months as a visiting scholar at the Zolberg Institute on Migration and Mobility of the New School in New York, and I warmly thank Alexander Aleinikoff in that regard, as well as the German Academic Exchange Service for funding the stay. I completed the manuscript while being a fellow of the Alexander von Humboldt Foundation at Columbia Law School since October 2019. Whereas the fellowship is directed at a new project, my gratitude extends to the Humboldt Foundation, Columbia Law School and the Columbia Center for Contemporary Critical Thought that provided an outstanding environment for those last months of work at the book. Finally, I want to thank Satvinder Juss as the editor of the Law and Migration Series, Alison Kirk, Emily Summers, the reviewers and the staff at Routledge for their help in the publishing process. An article that corresponds in parts to the first two chapters of the book has been published in the journal Inter Gentes 2 (2020) 2 under the title “A Counterbalancing Exception: the Refugee Concept as a Normative Idea.” During all these years, the company and love of friends and family was what made everything possible and joyful. The constant exchange with Stephanie Leder, often across time zones, is one of the huge blessings of my life. I have been lucky to meet individuals and find communities in Berlin and in New York City that have enriched my life and thinking. Most of all, I am endlessly grateful to my parents and my sister for their support, encouragement and humor.

Introduction

The governance of migration belongs to the most vehemently debated political issues today. Who can and who cannot move freely across borders? What do states owe to persons arriving at the border, and to what extent are states allowed to hinder migration? What rights have those who must flee from their homes? Overarching the various aspects of migration and border regulation is the question: who decides? Laws regarding migration are complex. They involve different levels of regulation, from the domestic over the regional to the international level. On these different levels, they involve various agents and institutions that shape and apply the law, from the legislator over administrative bodies to courts. Laws on migration concern fundamental questions of rights and mutual obligations. They also concern, as democratic laws, the basis of their own legitimacy. Migration is not just one object of democratic politics, rather, migration and democracy have an intricate relationship in a dual sense. First, the regulation of migration has an influence on the future composition of the polity. Between the arrival of persons and their possible naturalization lie many years and steps, and many of those arriving in a state never plan to stay or will end up not doing so. Nonetheless, migration interrelates with the basis of politics: a shared political world begins with the co-­presence in a place. Second, laws on migration also raise particular questions about what makes them democratic. What the right constituency is to democratically decide on matter of borders and access to the political community forms an extensively debated issue in political theory. To further explain the first aspect: it is the role of territory as the reference point of political equality that makes migration so significant for a democratic state. Democracy means the organization of government based on principles of human equality and freedom. It is the principle that humans recognize each other as political equals and create institutions, through which government is distributed and underlies joint influence and control. Today’s democratic institutions developed in the framework of the territorial state, and this framework shaped their particular form. The exercise of government is delimitated by ­territory and, correspondingly, territory determines the reach of many rights. Territory is also a central reference point for citizenship and political influence. While regulations on acquisition of nationality and citizenship vary, the

2   Introduction ­ ermanent presence on the territory plays a key role. In a democratic state, p persons who are durably present on the territory usually also have access to ­citizenship after a certain duration. Other forms of political participation are often available based on durable presence. The second mentioned aspect means considering the relationship of migration and democracy from another angle, looking at the justification of borders. If democracy means that those subjected to certain rules can also have influence on those rules, borders pose a problem. Rules who can cross borders affect also, and particularly, those who are still outside, yet these persons do not have any political voice in the respective ­deliberations and decisions. Democracy is thus marked by a tension at its very basis. It builds on the principles of human equality and freedom on the one hand, yet on the other hand requires concrete institutions. Without institutions, the idea of equal freedom would be a hollow claim. For the rule of the people, effective institutions and procedures are indispensable. Without underlying demands of inclusion, however, those institutions could never be called democratic. As the rule of the people, democracy is bound to a universalist idea. From the very outset, there is a tension between the universalism at the core of democracy and the necessary institutions, which involve delimitations. In the modern state, these delimitations mostly run along territorial borders. For that reasons, the tension at the core of democracy becomes visible particularly in the context of migration. The demands of institutions and inclusion are negotiated at the various gates of the state: regarding territorial entry, access to political rights and access to full membership.

The refugee concept as a lever Refugees occupy a particular place vis-­à-vis these questions of migration, democracy and the law. Among the manifold forms of migration, refugee law concerns those who migrate involuntarily and under conditions of hardship. The definition of the refugee in international law draws an influential line. In general, states are free to regulate access to their territory; refugees, however, may not be rejected at the border or returned to a place in which their life or freedom is endangered.1 This principle of non-­refoulement is contained in the 1951 Geneva Refugee Convention (GRC) and also applies, according to wide consensus, as a rule of customary international law.2 It reflects the basic assumption

1 Cf. Article 33 para. 1 of the Convention Relating to the Status of Refugees (Geneva Refugee Convention, GRC), adopted on July 28, 1951, United Nations, Treaty Series, vol. 189, 137. 2 Elihu Lauterpacht/Daniel Bethlehem, The Scope and Content of the Principle of NonRefoulement: Opinion, in: Erika Feller/Volker Türk/Frances Nicholson (eds.), Refugee Protection in International Law. UNHCR’s Global Consultations on International Protection (2003), 89 (see also Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees Ministerial Meeting of States Parties, Geneva, Switzerland, December 12–13, 2001, para. 4).

Introduction   3 that refugees constitute a category of migrants, towards whom states have more far-­reaching obligations. This basic assumption precedes and goes beyond the legal codification of refugee protection. That the refugee concept carries a significant normative meaning is manifest in its contestations today. Public debates about migration regularly involve disagreement not only about the rights of persons, but already about the choice of terms. Long before an asylum procedure, it seems to matter whether a person is called a refugee. Such concern with designations was apparent, for instance, in the summer of 2015 when the broadcaster Al Jazeera announced that it would no longer speak of “migrants” when referring to the persons who risk their lives trying to reach Europe via the Mediterranean Sea, but would instead speak of “refugees.”3 The broadcaster pointed out the severe reasons that force people to flee; its statement was not a hypothesis about a person’s legal status but a stand on the legitimacy of their crossings. In a related vein, many protests of persons claiming protection have included signs saying, “we are refugees.” Such could be seen in 2014, when Eritreans and Sudanese people were protesting in the South of Tel Aviv.4 They opposed their labeling as “economic migrants” and while their signs could be read to reference a legal distinction, they also seemed to appeal to a moral recognition by the public. Similar signs were visible also in Athens in spring 2016, where citizens and migrants were protesting together after the passing of the EU-­ Turkey-Deal,5 or in Rome, where migrants protested homelessness and animosities.6 The refugee concept, as these different examples underline, has a normative significance that is not equivalent to its significance as a legal term. The significance is also confirmed in the trope of the “real refugee,” which mostly appears in negation.7 To speak of “real refugees” polices a “correct usage” of the refugee concept, suggesting that a broader usage would be “fraudulent.”8 This normative claim that is linked to the refugee concept and codified in international law is a starting point to explore the entanglement of refugee protection with questions of political rights and membership. Refugee law is a place

3 Barry Malone, Why Al Jazeera Will Not Say Mediterranean ‘Migrants’, Al Jazeera, August 20, 2015. 4 Maeve McClenaghan, Israeli Protests: A Refugee’s Story, Guardian, January 6, 2014. 5 Migrant Crisis: EU–Turkey Deal Comes into Effect, BBC, March 20, 2016. 6 Diego Cupolo, Failing Immigration System Leaves Thousands Homeless in Italy, Deutsche Welle, May 10, 2016. 7 E.g. Susan Reid, “The Tragic but Brutal Truth: They Are Not REAL Refugees! Despite Drowning Tragedy Thousands Of Economic Migrants Are Still Trying to Reach Europe”, The Daily Mail, May 27, 2016. Cf. also for several references Niklaus Steiner, Arguing About Asylum. The Complexity of Refugee Debates in Europe (2000), 38. 8 With the expression of “label fraud” Christian Hillgruber, Flüchtlingsschutz oder Arbeitsmigration. Über die Notwendigkeit und die Konsequenzen einer Unterscheidung, in: Otto Depenheuer/Christoph Grabenwarter (eds.), Der Staat in der Flüchtlingskrise (2016) 185, 191.

4   Introduction where many questions regarding migration and democracy crystallize. This is, on the one hand, because refugees typically lack any access to formal structures of political participation. Fleeing from their state of origin, the political membership in that state is oftentimes disrupted, while they also have no access to political participation in their place of shelter. On the other hand, refugee law is an important lens to look at the relationship of migration and democracy because refugees are seen to hold a claim against the state. The refugee concept in that sense functions as a block in the door of the territorial state. It forms a lever for internal critique within the legitimacy framework of the modern democratic state.

The first part: the refugee The book explores the relationship of refugees, democracy and the law. It asks how the marginal position of refugees vis-­à-vis democracy is addressed in law and what the case of refugees teaches about conditions of democracy more generally. The first part of the book examines the normative dimension of the refugee concept and its relationship with the legal codifications. Chapters 1 and 2 pursue the questions “who is a refugee?” and “who decides who is a refugee?” They do not purport to give conclusive answers, but rather view these questions as objects of ongoing processes of deliberation and contestation. Discussing the refugee concept sets the basis for the further inquiry of the book, yet it is more than a preliminary clarification. The refugee concept is fundamental to the legitimacy order of the territorial state, representing an exceptional claim to entry. This idea is the subject of fierce contentions precisely because the territorial community is considered the very basis of law. The refugee concept is placed at the edges of democracy, and it links to a dynamic at those edges. The first chapter is an inquiry into the refugee concept, its history and its position in the framework of the territorial state. The term “refugee” emerges in seventeenth century, around the time in which also the modern territorial state begins to take shape. This is more than a coincidence, as the subsequent development suggests. The refugee concept denotes the idea of an exception: the exceptional obligation towards a stranger in need at the border that competes with the usual discretion of the state in governing access to its territory. This normative idea develops alongside the modern territorial state in Europe and the corresponding political thought. The claim of the endangered person at the border is not simply an exception, it is a counterbalancing exception. The modern state builds on universalist principles of human equality and freedom yet at the same time, rights and obligations are in general delimited along territorial borders. This tension between the underlying universalism of the modern state and its particular institutions remains tolerable, as long as there is an exception for extreme cases. If a person is threatened in her life or freedom and that person is at the border and can be saved, the state has an obligation not to reject her.

Introduction   5 In its position of an exception, the refugee concept forms a site of opposing contentions today. On the one hand, the concept affirms the rule of states’ full discretion regarding immigration. In that role, the refugee concept is criticized as part of a framework that restricts and unfairly distributes mobility. On the other hand, as an exception to states’ unilateral decision about access the refugee concept bears a critical potential and forms a reference point of universalist claims. From a broad but vague normative idea, it is a big step to the legal codification of the refugee concept and to binding rules of refugee protection. The second chapter examines the history of codification and the theoretical questions it raises. The refugee definition in the GRC was the first legal definition of the refugee, and it was preceded by debates about the right strategy in that regard. Should one lay down an abstract definition in a treaty, or decide in each situation who will receive international protection? And if one seeks to lay down a definition, which should be the criteria for recognition as a refugee? The questions of definition are ongoing. The 1951 Convention and its 1967 Protocol have been influential not only for the legal definition of the refugee but also for the general understanding. They define the refugee, with further additions, as a person who owing to well-­founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.9 Regional treaties, especially the 1969 Refugee Convention of the Organization of African Unity (OAU) and the 1984 Cartagena Declaration among Latin American States, have adopted broader definitions. Other legal frameworks have introduced additional concepts, such as the concept of subsidiary protection in the European Union. Besides that, elements of the definition like “persecution,” “well-­founded fear,” or “membership in a particular social group” are subject to differing and dynamic interpretations. Yet the matter of definition also has a democratic theory dimension: while the refugee’s claim to access faces states from outside, the codification of refugee law mostly takes place in state-­centered procedures. This is a variation to the above-­mentioned challenge that migration poses for democracy. Yet while decisions on the law are primarily taken in formal procedures, contestations in public discourse also shape the understanding of the refugee concept and impact the interpretation of legal rules. The conditions of those contestations in public discourse and their influence are vice versa shaped, although not determined conclusively, by laws regulating public space and political activities. In summary, the question who is a refugee points to the margins of the state: the refugee is the person at the border, who is not inside but also not entirely

9 Article 1 A para. 2 GRC.

6   Introduction outside. As a person who has fled her home and is without support of her home state, the refugee is in a situation of precarity, even when already within the state. Yet the refugee also has a claim against the state, and therefore, even when still outside the territory, is not entirely without connection to its laws and politics. The question who decides who is a refugee, in turn, points to the margins of democracy. A proper understanding of democracy has to consider the conditions under which rules are created, in formal procedures and in informal processes of deliberations and public argument. This applies to any rule. Yet for rules about the status and rights of refugees, it includes the question how these processes of deliberations and public argument can include the voice of persons at the margins of the state. It should have become clear at this point, yet should be stressed again, that the book does not view refugees to constitute an essentially separate group of migrants. The distinction between refugees and other migrants is a normative and a legal distinction, the conditions of this distinction are precisely object of reflections.

The second part: democracy’s edges The overall aim of the book is to zoom in on the relationship between refugees and democracy, thus, to explore the margins of political membership and refugees’ access to political voice in specific constellations. In that pursuit, the second part examines the edges of democracy. The relationship between refugees and democracy, in a simple picture, appears as one of opposites. Democracy, in that simple picture, consists of procedures within states and among citizens. Refugees, by contrast, lack effective membership in a state. The picture of refugees and democracy as antithetical is a valid starting point, but it must be complicated. First, democracy does not have such a clear inside and outside. Even regarding formal procedures, entitlements to participation are gradual rather than black and white. For instance, some states grant non-­citizens voting rights on the local or regional level or open the right to petition to all inhabitants regardless of legal status. Moreover, democracy consists not only in formal procedures but also in political activities outside institutional channels. While legal citizenship demarcates the core of democracy, there also exists a wide periphery. The margins of political participation and voice are blurred; this blurriness allows the limits of citizenship to be challenged and negotiated, which is vital for emancipatory processes. This blurriness is also where the question of refugees’ political voice can be raised. Second, the position of refugees is equally more varied than the antithetical picture implies. The focus so far has been on the refugee’s claim to access, the moment at the border – figuratively or literally. This is a distinctive aspect of the refugee concept. Among the various forms of migration, the refugee concept reflects the idea of a legitimate claim to access and this turns the concept into such bone of contention. But while the claim at the border distinguishes the refugee in the beginning, refugee status persists throughout different stages of

Introduction   7 arriving in a place. The refugee retains a position of in-­between: he is never entirely outside the realm of law and rights, because he is making a claim towards the state that in principle is regarded as legitimate. But she is also never entirely within, since by definition she does not hold full membership. Beside the varied stages of arrival, also the relationships of refugees with their state of origin differ, ranging from a situation in which refugees enjoy some access to political voice in their home state to ones in which they are de facto or de jure stateless. Chapter 3 considers the role of citizenship at the junction of law and politics. Citizenship is at the basis of democratic legitimacy, and at the same time determined by law. It delimitates who takes part in politics, and these delimitations are themselves the outcome of political processes. Citizenship thereby takes the form of a legal status, but the concept also describes the exercise of political activities outside institutional channels. In that sense, citizenship forms a gradual rather than categorical concept. This does not mean that the legal regulations were less significant. In its position at the junction of law and politics, democratic citizenship is subject to demands of universalism and the necessity of concrete institutions. On the one hand, it links to the universalist idea of non-­domination: that individuals participate in politics actively rather than being subjected to governance they have no part in. On the other hand, it refers to membership in a polity – the city, the state, or else – and thereby to institutions that secure equality among persons. The case of refugees shows how the interrelation of law and politics plays out at the very margins. Hannah Arendt’s reflections about a “right to have rights” and the debate that builds on it are insightful in that regard. Arendt’s phrase is regularly referred to in debates about the rights of refugees, and about the basis of rights more generally. It has become seen as key in understanding the specific precarity of the refugee situation. One insight it transports is that a minimal recognition of political agency and the guarantee of basic rights interdepend. Whereas legally recognized citizenship marks the junction of law and politics at the center, the “right to have rights” marks the junction of law and politics at the outer edge. Chapter 4 turns from the individual to the institutional level, asking how demands of concrete institutions can be balanced with the demands of inclusion. The values that underlie democracy, equality and freedom, cannot be limited to a certain group of persons without compromising their very meaning. Yet in order to be meaningful to social and political life, these values must be concretized in institutions. The chapter discusses the subject of democracy and the boundary problem. The regulation of territorial borders and of boundaries of formal citizenship are sites in which conflicts between democracy’s universalist basis and its institutional guarantees are articulated legally. The chapter explores, moreover, how democracy can be understood with view to law and government beyond the state. Debates about international, transnational or cosmopolitan democracy seek to describe how the demands of inclusion and institutions take new shapes or can be thought of differently. The refugee

8   Introduction concept offers a lens for assessing these debates and can inform reflections about a critical cosmopolitanism.

The third part: the legal conditions of refugees’ political voice On that basis, the third part of the book explores the conditions under which refugees have access to democratic voice and participation. It asks how law structures the political participation, visibility and voice of refugees. Refugees fall outside most institutions of political membership. The status of a refugee is defined by an in-­between: having fled one state and having not yet acquired citizenship elsewhere. In that sense, the political membership in the state of origin is broken or suspended in one way or the other, while refugees also lack full political membership at the place where they are. It is this situation at the margins of institutional political structures, which makes considering the refugees access to political voice so important, and so insightful for understanding citizenship and democracy. In writings about the political membership of refugees, the two poles receive most attention. On the one hand, scholars have shown how state structures systematically exclude refugees from the political realm and how this political exclusion is central to refugees’ precarity.10 On the other hand, analyses highlight the political agency of refugees which defies these limitations and thereby shifts the understanding of politics.11 There is attention to the suppression of politics through law, and attention to the defiance of law through politics. Both these strands of scholarship are important for understanding the situation of refugees, and I build on them. I am interested, however, less in the poles and more in the grey zones. While state structures tend to exclude refugees from politics, there are also attempts at creating forms of political representation or at otherwise enabling political participation. And while the political agency of refugees to a large extent takes place outside formal institutions and procedures, the law is nonetheless present in structuring these political activities. Chapters 5 to 8 explore these grey zones; they examine how the law enables and conditions the political voice of refugees in different realms. Legal provisions are relevant for democracy on many levels. They grant formal entitlements of participation and regulate democratic procedures, for instance through nationality laws and voting laws. And they condition non-­formal democratic processes, by governing who can form associations and how persons can

10 Emma Haddad, The Refugee in International Society (2008); Patricia Tuitt, False Images: Law’s Construction of the Refugee (1996); Simon Behrman, Law and Asylum. Space, Subject, Resistance (2018). 11 Anne McNevin, Ambivalence and Citizenship: Theorising the Political Claims of Irregular Migrants, Millennium: Journal 41 (2013) 2, 182.

Introduction   9 assemble on the streets, and by regulating the power of state institutions to interfere with such political activities. Chapter 5 examines the relationship between refugee status and institutional forms of political membership. It looks at international law provisions regarding naturalization and citizenship, as well as at refugees’ access to voting, both in their state of residence and in their state of origin. Finally, the chapter considers how forms of special representation for refugees may enable political voice. Chapter 6 then turns to the ways in which law governs non-­institutional ways of political influence, discussing in particular the right of assembly and of association in their relevance for the political voice of refugees. It also points out how restrictions on free movement as a result of refugee status can impact these rights. The two chapters focus on international legal rules and draw on examples from state constitutions; they are oriented at the constellation that refugees find protection in a state and by a state, as foreseen by the GRC. A considerable percentage of refugees, however, find shelter in a state yet live within confined zones and receive assistance from humanitarian organizations. Such situations of humanitarian government affect the conditions of political voice. Chapter 7 considers the specifics of humanitarian government and examines policies of UNHCR that are directed at representation of refugees in camps. Through a lens of political voice and membership, the chapter argues, critiques of the conditions in refugee camps must be linked to a critique of structures that underlie humanitarian government, such as the responsibility-­ sharing between states and conditions of mobility. Chapter 8 turns to the international level, asking how refugees can have a voice in the procedures within UNHCR and other international forums that shape rules of refugee protection. The participation of refugees was a demand acutely raised around the drafting of the 2018 Global Compact on Refugees. The chapter situates the demands theoretically, asking what participation and representation of refugees might mean in that connection. It draws on the distinction between interest and opinion as two factors in the democratic process, which further elucidate a first distinction between voice and advocacy.

Between survival and political equality The book traces structures and developments regarding refugees’ political rights. None of these developments are simple and linear. In many of the contestations and practices, a recognition of refugees’ claim to political rights is visible: in the growing efforts to enable access to voting in the home state, in the endeavors for self-­reliance and self-­determination of refugees in camps, in the attention to participation on the international level. At the same time, many of these policies are embedded in an overall decline in the respect for refugee rights, at times even for the most basic principles of refugee law. Not only are commitments on paper often at odds with the practice on the ground, even explicit commitments of refugee protection have dwindled. From the Australian practice of offshore detention, over the restriction of access to asylum at the

10   Introduction US–Mexican border, to the pushbacks at the European Southern and Eastern borders, the core rules of refugee law are questioned or openly violated in many places.12 Refugee law has come to a breaking point in these past years. Are political rights a “luxury problem” under these conditions? Most certainly not. The aim of the book is also to explain why the access to political voice cannot be detached from the safeguarding of the most fundamental rights. Already the inquiry into the refugee concept underlines how border regulation and the delimitation of political membership are entangled. The Arendtian notion of the “right to have rights” and the ensuing debate revolve around the fact that a lacking recognition of political standing makes people susceptible to being denied any rights. This also responds to the objection that many states in the world are not democratic: why should one care about refugees’ democratic situation then? Here it is important to stress that the analysis does not proceed from an abstract claim that democratic rights are necessary, but rather from an internal critique. The refugee concept cannot be detached from the territorial state, because of the particular limitation on free movement that the territorial state entails, and because of the refugee concept developing as a response within this framework. In that sense, the premises of the modern territorial state that develop into democratic institutions are directly linked to the refugee concept. To understand the crossroads that refugee protection finds itself at, we must see the radicalness of the normative idea of the refugee in today’s world, as well as the opposite interpretation given to refugee protection. The refugee concept refers to persons who migrate under conditions of extreme hardship and who therefore depend on access to territory in order to preserve their lives and freedom. At the same time, it is a basic assumption that access to territory corresponds to eventual political equality of persons. It is this combination that turns the refugee concept into such an unsettling cosmopolitan claim. Yet the association of access to territory and political equality is by far not uncontested. Especially the discussion of humanitarian government shows how protection is increasingly oriented at mere survival, detaching presence from a road to political equality. In that sense, there are different lines, in which refugee protection and the protection of fundamental human rights are negotiated today. They are negotiated at moments in which saving a person’s life is at stake, and they are negotiated in the instances, in which people claim their recognition as political actors.13 Jointly, these instances form a source of a concrete universalism.

12 For the Australian model and background Daniel Ghezelbash, Refuge Lost. Asylum Law in an Interdependent World (2018), 43, 81. For the US-American situation Paul Wickham Schmidt, An Overview and Critique of US Immigration and Asylum Policies in the Trump Era, Journal on Migration and Human Security 7 (2019) 3, 92 (96). 13 See also with a focus on the former Itamar Mann, Humanity at Sea. Maritime Migration and the Foundations of International Law (2016), 56.

Introduction   11

Concrete universalism The book proceeds from an understanding of norms as rooted in social reality and, correspondingly, views normative analysis itself as situated. This understanding guides the perspective on norms and legal institutions, which are dependent in their meaning on the surrounding narratives and practices.14 The understanding shapes also the view on the yardsticks of critique. Assessing laws and their development cannot rely on abstract benchmarks but draws on yardsticks that stem from the same social reality. Axel Honneth has described with his method of “normative reconstruction” how such an immanent critique might proceed.15 The book is oriented at this reconstructive approach. In that sense, the inquiry into the refugee concept does not seek to find a “right” meaning, but to reconstruct the meaning that was shaped over time and continues to develop in dialogue with the legal rules. Similarly, the concepts of citizenship and democracy are treated as dynamic concepts that cannot be understood but through the contestations and changing premises. The third part draws on the legal and factual developments regarding refugees’ political rights in different sites. Here too, the aim is not to formulate an abstract demand or sketch a model, but rather to uncover the soundness or contradictions within the evolution, in order to point out shortcomings as well as potentials. Of course, any reconstruction means choosing a particular interpretation and it is not logically dictated. That corresponds to another aspect that should be made explicit, namely the situated perspective of the book. That involves a disciplinary focus: the book is interested in the role of law and in the complexity of law. It opposes a positivist approach that excludes from view the structures behind written norms. Yet it also opposes perspectives that view law as a mere expression of power, as they do not adequately capture the manifold dynamics inside the law and the influence of surrounding social reality on the law. Beside the disciplinary focus, the argument also constitutes to some extent a view from Europe. Whereas the inquiry is directed at international refugee law and legal theory and in that sense not geographically limited, the European viewpoint will be obvious in some of the material and in the outlook on current challenges. Finally, recognizing the situatedness of the perspective means to underline that the analysis is not disengaged from the social processes surrounding it. The book is written throughout years in which refugee law and democratic institutions have been in upheaval, and it forms an attempt to contribute to the debate about a viable conception of refugee protection and democracy in an interconnected world.

14 Cf. Robert M. Cover, Nomos and Narrative, Harvard Law Review 97 (1983) 1, 4. 15 Axel Honneth, Freedom’s Right: The Social Foundations of Democratic Life (2014), 3.

12   Introduction

Bibliography BBC, Migrant Crisis: EU-­Turkey Deal Comes into Effect, BBC, March 20, 2016, www. bbc.com/news/world-­europe-35854413. Behrman, S., Law and Asylum. Space, Subject, Resistance (2018, London: Routledge), doi: 10.4324/9780203730348. Cover, R. M., Nomos and Narrative, Harvard Law Review 97 (1983) 1, 4. Ghezelbash, D., Refuge Lost. Asylum Law in an Interdependent World (2018, Cambridge: Cambridge University Press). Haddad, E., The Refugee in International Society (2008, Cambridge: Cambridge University Press), doi: 10.1017/CBO9780511491351. Hillgruber, C., Flüchtlingsschutz oder Arbeitsmigration. Über die Notwendigkeit und die Konsequenzen einer Unterscheidung, in: Otto Depenheuer/Christoph Grabenwarter (eds.), Der Staat in der Flüchtlingskrise (2016, Paderborn: Schöningh), 185. Honneth, A., Freedom’s Right: The Social Foundations of Democratic Life (2014, Cambridge: Polity Press). Lauterpacht, E./Bethlehem, D., The Scope and Content of the Principle of Non-­ Refoulement: Opinion, in: Erika Feller/Volker Türk/Frances Nicholson (eds.), Refugee Protection in International Law. UNHCR’s Global Consultations on International Protection (2003, Cambridge: Cambridge University Press), 89. Malone, B., Why Al Jazeera Will Not Say Mediterranean ‘Migrants’, Al Jazeera, August 20, 2015, http://aje.io/mmk8. Mann, I., Humanity at Sea. Maritime Migration and the Foundations of International Law (2016, Cambridge: Cambridge University Press). McClenaghan, M., Israeli Protests: A Refugee’s Story, Guardian, January 6, 2014, www. theguardian.com/world/2014/jan/06/israel-­refugees-protest-­sudan. McNevin, A., Ambivalence and Citizenship: Theorising the Political Claims of Irregular Migrants, Millennium: Journal 41 (2013) 2, 182, doi: 10.1177/0305829812463473. Reid, S., The Tragic but Brutal Truth: They Are Not REAL Refugees! Despite Drowning Tragedy Thousands of Economic Migrants Are Still Trying to Reach Europe, The Daily Mail, May 27, 2016, http://dailym.ai/1TFQdIG. Schmidt, P. W., An Overview and Critique of US Immigration and Asylum Policies in the Trump Era, Journal on Migration and Human Security 7 (2019) 3, 92. Steiner, N., Arguing About Asylum. The Complexity of Refugee Debates in Europe (2000, London: Palgrave). Tuitt, P., False Images: Law’s Construction of the Refugee (1996, East Haven: Pluto Press).

Part I

The refugee

1 Who is a refugee?

Dimensions of the refugee concept There are different uses of the refugee concept, which are not mutually exclusive. The term is used descriptively, it is defined in law and used as a legal concept, and it has a broader normative dimension. In a most general sense, the term “refugee” refers to a person migrating or having migrated for reasons of hardship.1 The English word “refugee,” over the French “réfugié,” goes back to the Latin refugium: a place, where a person can find shelter.2 These terms highlight the aspect of a refugee being a person in search for, or who has found, shelter. In other languages, the corresponding term puts the emphasis on the flight itself.3 What characterizes the refugee is first a movement from one place to another, and second an element of hardship and involuntariness, as the notions of flight and shelter indicate. A descriptive use of the refugee concept builds on this general understanding. In that sense, the term is used with a view to displacement of various kinds and for various reasons, in relation to war or civil war, to environmental disasters, or broadly to persons migrating under deprived conditions. Even in this general, descriptive sense, the refugee notion involves a dual demarcation: from persons not migrating, and from those migrating without reasons and conditions of hardship. It is along these demarcations that questions of definition arise. What constitutes hardship, how can one assess the often mixed and entangled motives for migration? And up to which point in time do we distinguish persons who have “found shelter” from permanent members of a community? These questions gain relevance where a consequence is attached to someone being called a refugee. The main consequence that international law attaches to the refugee notion is the prohibition of refoulement: the prohibition to expel or return a person to the place she is fleeing. The 1951 Geneva Refugee Convention (GRC) in that

1 Cf. also the definition of the refugee as an “uprooted, homeless, involuntary migrant […],” Encyclopedia Britannica Online: www.britannica.com/topic/refugee. 2 The same is the case for the term in Roman languages, such as “rifugiato” in Italian. 3 This is the case for “Flüchtling” in German, “‫ליט‬ ּ”ִ ‫ ָפ‬in Hebrew, or “беженец” in Russian.

16   The refugee regard contains a stipulation of who is to be considered a refugee.4 It states that for its purposes the term “refugee” shall apply to any person who […] owing to well-­founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.5 This core definition formulates three main criteria for refugee status: having crossed an international border, a well-­founded fear of persecution, and the causality of one of the five enumerated reasons for persecution. In addition to the quoted part, the GRC contains several qualifications and exceptions as to whom the definition applies. It begins with a temporal limitation to flight resulting from events before January 1, 1951, which was lifted by the 1967 Protocol that almost all state parties to the GRC have ratified.6 Moreover, the GRC included the possibility of declaring a geographical limitation of its applicability to refugees coming from Europe.7 This possibility was ended by the 1967 Protocol; declared geographical limitations remained, however, valid.8 Furthermore, the GRC contains exclusion clauses in its Article 1 D and F. Article 1 D exempts from its application persons who are under the protection of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).9 Article 1 F exempts from protection as a refugee persons who have committed serious crimes. The refugee definition of the GRC is thus elaborate, and the criteria have been subject to extensive interpretation by courts and administrative bodies.10 Especially the criterion of “membership of a particular social group” has enabled a dynamic interpretation, which successively

  4 Convention Relating to the Status of Refugees (Geneva Refugee Convention, GRC), adopted on July 28, 1951, United Nations, Treaty Series, vol. 189, 137.   5 Article 1 A para. 2 GRC.   6 All state parties to the GRC also ratified the 1967 Protocol with the exception of Madagascar, Saint Kitts and Nevis (as of April 2015).   7 Article 1 B GRC.   8 Four states have declared such limitations: Congo, Madagascar, Monaco and Turkey.   9 Article 1 D does not mention the UNRWA explicitly but speaks of “persons […] receiving from organs or agencies of the United Nations other than the UNHCR protection or assistance”; the UNRWA has remained, however, the only case in which this applies. 10 Andreas Zimmermann/Claudia Mahler, Article 1 A, Paragraph 2, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011), 281.

Who is a refugee?   17 included, for instance, persecution based on gender or sexual orientation.11 The United Nations High Commissioner for Refugees (UNHCR) since 1979 has issued a handbook that summarizes and guides the interpretation of the GRC refugee definition.12 There is, however, no institution that has a binding last word regarding the interpretation of the GRC. Despite this complexity, the refugee definition of the GRC is pivotal today not only for international refugee law but has shaped the understanding of who is a refugee far beyond. In debates about states’ obligations towards migrants, the core definition often serves as a reference point. At the same time, the GRC definition must be seen in its specific context, embedded in a preceding history of the refugee concept and a subsequent development. Neither does it foreclose differing legal definitions, nor does it answer the question who should receive protection. The second chapter will return to the question of codification and competing definitions of the refugee. For now, it should be noted that the refugee concept is widely used in the sense of a legal term and that its legal definition influences the understanding more generally. Beside the descriptive uses of the refugee concept and its legal definition, the refugee is also referred to as a normative category in political philosophy.13 Refugees, in that understanding, are a category of migrants with special entitlements, persons towards whom states have special obligations.14 Such a perspective focuses on the claim to inclusion and to rights that is linked to the refugee concept. There have been various attempts to formulate a definition of the refugee in relation to this normative specificity.15 The philosophical debate thereby does not take place without note of the legal regulations,16 yet aims at an abstract understanding of what is specific to the refugee and what are adequate criteria of distinction. Another strand of the debate, particularly in social and political sciences, engages with the specificity ascribed to the refugee concept and focuses on its exclusionary side. The refugee concept, as seen in its basic definition, contains a

11 Maryellen Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal 26 (1993), 505. 12 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (3rd revised edition, 2019). 13 The strand of political philosophy summarized here could be called Kantian approaches, in opposition to critical theory approaches, cf. Dana Schmalz, Social Freedom in a Global World: Axel Honneth’s and Seyla Benhabib’s Reconsiderations of a Hegelian Perspective on Justice, Constellations 26 (2019) 2, 301 (302). 14 Cf. David Miller, Strangers in Our Midst: The Political Philosophy of Immigration (2016), 78. 15 Andrew E. Shacknove, Who Is a Refugee?, Ethics 95 (1985) 2, 274; Matthew Lister, Who Are Refugees?, Law and Philosophy 32 (2013), 645 (648). 16 Cf. Max Cherem, Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere, The Journal of Political Philosophy 24 (2016) 2, 183 (187).

18   The refugee dual demarcation: from other migrants and from the citizens at the place of a refugee’s presence. Regarding conditions of mobility, the refugee is a category of entitlement, which strengthens the perception that other migrants have no legitimate claim to access. In that vein, the refugee concept is criticized as part of an order that distributes freedom of movement unfairly. Simon Behrman describes, for instance, how refugee law works as a means of controlling, placing the person claiming asylum in dependence from criteria she has no influence on.17 Heaven Crawley and Dimitris Skleparis argue that the monopolization of claims to territorial entry under the refugee notion tends to ultimately reduce the schemes for legal migration.18 These different perspectives on the refugee concept do not require adjudication. They do not necessarily reflect a disagreement, although some views do. Foremost, the different uses lead at times to a talking past each other in scholarship. A descriptive use of the refugee concept does not exclude its use as a legal term in another context, and a use in a legal sense does not preclude reflections about the best definition in a philosophical discourse. One core point of disagreement is whether the refugee concept is something to uphold or to move beyond. The chapter will return to this question in the last section. Ultimately, the aim is not to claim a right view, but to unpack some of the refugee concept’s complexity by exploring its history and its theoretical position in the thinking about law.

The emergence of the refugee concept alongside the territorial state in Europe There have always been people fleeing their homes, but there have not always been refugees. The terms “réfugié” in French and “refugee” in English appear in the sixteenth and seventeenth century.19 The flight of about 200,000 Huguenots from France in the late seventeenth century is often referred to as the first

17 Simon Behrman, Refugee Law as a Means of Control, Journal of Refugee Studies 32 (2018) 1, 42; Simon Behrman, Law and Asylum. Space, Subject, Resistance (2018), 116; see also Patricia Tuitt, False Images: Law’s Construction of the Refugee (1996), 24. 18 Heaven Crawley/Dimitris Skleparis, Refugees, Migrants, Neither, Both: Categorical Fetishism and the Politics of Bounding in Europe’s ‘Migration Crisis’, Journal of Ethnic and Migration Studies 44 (2018) 1, 48; Robert Zetter, More Labels, Fewer Refugees: Remaking the Refugee Label in an Era of Globalization, Journal of Refugee Studies 20 (2007) 2, 172. 19 Aristide Zolberg/Astri Suhrke/Sergio Aguato, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989), 3; Patricia Tuitt, Rethinking the Refugee Concept, in: Frances Nicholson/Patrick Twomey (eds.), Refugee Rights and Realities (1999), 110.

Who is a refugee?   19 case of refugees in that sense,20 although several events of forced migration took place within Europe around that time.21 What can explain the emergence of the refugee notion during that period, and how is it distinct from prior concepts dealing with persecution and flight? When the refugee concept emerges in Europe, it is a time in which the political order and legal thinking undergo fundamental changes. From an order mainly structured by religious belonging, a process of change towards a territorially defined order begins. The Westphalian Peace Treaties from 1648 are in that sense often viewed as the birthdate of the territorial state order.22 They ended the Thirty Years’ War, which had been fought between Catholic and Protestant states, and were concerned with religious groups and belonging.23 Already the Peace of Augsburg in 1555 had introduced the principle cuius regio eius religio, according to which the confession of the ruler should determine the religion of the population, leaving the option to move away or to change one’s religion. These treaties mark by no means an instantaneous change, rather the beginning of a successive aligning of religious and territorial belonging. Together with the changes in political order, legal and political thought changes fundamentally. While the Westphalian Peace Treaties are negotiated, Thomas Hobbes writes his book The Leviathan, which appears in 1651 and introduces the idea of a social contract, by which individuals establish a society and submit to a governing authority. John Locke’s Two Treatises of Government from 1689 builds on this conception of the social contract and develops it further, complementing the focus on peace and security with one of property and rights. Together with further thinkers of their time, these works on the social contract mark a turn to the individual as reference point of legitimacy. From the idea of natural or divine law and the discretionary ruling of a monarch, the understanding of law’s foundation moves towards the notion of agreement. The social contract represents an imagined first agreement of individuals about the existence of society and the necessity of government. That the refugee concept emerges during that time period can be understood in relation to these two changes. First, as territory is gaining significance as criterion of political belonging, the perspective on migration changes. Reasons for migrating become more relevant – and the refugee concept, at the very basis, offers a distinction of reasons: it describes that a person migrates for reasons of

20 Laura Barnett, Global Governance and the Evolution of the International Refugee Regime, International Journal of Refugee Law 14 (2002) 2/3, 239; Philip Marfleet, Refugees and History: Why We Must Address the Past, Refugee Survey Quarterly 26 (2007) 3, 136 (140). 21 Heinz Schilling, Early Modern European Civilization and Its Political and Cultural Dynamism (2008), 37. 22 Cf. Hendrik Spruyt, The End of Empire and the Extension of the Westphalian System: The Normative Basis of the Modern State Order, International Studies Review 2 (2000) 2, 65. 23 Cf. Emma Haddad, The Refugee: Forging National Identities, Studies in Ethnicity and Nationalism 2 (2002) 2, 23 (25).

20   The refugee hardship. Second, the refugee concept corresponds to the growing focus on the individual. What distinguishes the refugee concept from the prior notion of asylum is a turn of perspective from a place to a person as reference point of a rule. The Greek term a-­sylon expresses that something is exempt from seizure, a status often linked to the sanctuary of a religious place.24 Asylum relates to a certain place and thereby expresses a competing sovereignty. Several legal institutions continue this normative tradition today. Church asylum reflects a certain sovereignty of the church within the state. Diplomatic asylum, which an individual can seek in an embassy, reflects the sovereignty of one state’s diplomatic presence on the territory of another state.25 Political asylum expresses the sovereignty of the receiving state vis-­à-vis the state from which the individual flees. In all these cases, the point of contention is the extradition of the individual and the contending parties are the two entities considered sovereign. The refugee concept, by contrast, does not link primarily to a place but to a person and their act of migration. The point of contention is not extradition but access and protection. The contending parties are not two sovereigns but the individual migrant and the state he seeks protection in. This does not mean that the concepts of asylum and the refugee would be neatly separated. They intersect in practice and are today often used interchangeably. Yet these two angles of perspective are worth distinguishing to understand the underlying normative histories and the novelty of the perspective that begins to form in the seventeenth and eighteenth centuries.

The refugee concept as a counterbalancing exception The emergence of the refugee concept as well as the changes in the political order and legal thinking were slow, gradual and complex developments. From the refugee concept’s appearance to its first codification in law, more than two centuries pass. Equally, from the Westphalian Peace Treaties, the territorial state develops in Europe over the course of the subsequent two centuries. While the French Revolution marks a first emphasis on a principle of popular sovereignty, democratic institutions emerge only slowly in the nineteenth century in different states. The territorial state gradually develops into a constitutional state, and later a democratic state. This development is in itself the subject of extensive scholarship, which is not necessary to enter into here.26 The European focus is also not meant to claim that these developments were exclusive to Europe. It is, however, the context in which the refugee concept is shaped that becomes the

24 Kay Hailbronner/Jana Gogolin, Territorial Asylum, in: Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (2012), 1, Marginal No. 1. 25 Cf. Charles Chatterjee, International Law and Diplomacy (2013), 8; for a detailed discussion see Gregor Noll, Seeking Asylum at Embassies: A Right to Entry under International Law?, International Journal of Refugee Law 17 (2005) 3, 542. 26 E.g. Charles Tilly, The Formation of National States in Western Europe (1975).

Who is a refugee?   21 basis for the codification in international law, as the following chapter shall discuss. The conception of law and legitimacy that begins to form in seventeenth and eighteenth centuries centers on the individual and builds on the principles of human equality and freedom. That justice comes to be understood with reference to individual freedom is thereby more than a historical occurrence that could subsequently be replaced.27 The recognition of individual autonomy is so fundamental that it cannot simply be reversed. The human capacity to question social orders and to demand justification is asserted in practice through political movements, it becomes the basis for thinking about legitimacy. The principles of human equality and freedom underlie a democratic order. Yet for law, they mean a continuous tension between demands of concreteness and of universality.28 In order to be concrete, law requires institutions through which persons mutually recognize and guarantee their rights. Concreteness requires delimitations, and in the case of the territorial state the most basic delimitations are along borders and along boundaries of membership determined with reference to the territory. The territorial state constitutes the framework for institutions of public law; it is through these institutions that legal obligations and rights exist. These delimitations can come into conflict, however, with the law’s demand for universality, the underlying principles of human freedom and equality. Based on these principles, the delimitation of membership and obligations of solidarity along territorial borders appears in many cases arbitrary. The claim of the individual at the border forms a particularly acute question in that regard. What right a person has to migrate, and what claim to enter a state, are questions that have occupied legal thinkers throughout the centuries. In the sixteenth and early seventeenth centuries, Francisco de Vitoria and Hugo Grotius discuss a principle of free movement.29 Their reflections take place mainly against the background of the conquest of the New World, the right to passage on high sea and to settle in a place.30 While primarily looking at the principle of free movement, Grotius was also concerned to some extent with conditions of individual migration.31 These reflections differ from later thinkers who draw on the territorial state and a social contract conception. Scholars such as Samuel von Pufendorf, Christian von Wolff, and Emer de Vattel focus less on the question of free movement but accept the general right of a state to control

27 Axel Honneth, Freedom’s Right: The Social Foundations of Democratic Life (2014), 17. 28 Cf. in a related sense Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), 21. 29 Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vittoria to Vattel, European Journal of International Law 27 (2016) 4, 903; Jane McAdam, An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty, Melbourne Journal of International Law 12 (2011), 27 (33). 30 Elke Tießler-Marenda, Einwanderung und Asyl bei Hugo Grotius (2002). 31 Chetail, op. cit., 907.

22   The refugee i­mmigration. Their framing of the question shifts from conditions of movement and collective processes of settling towards individual migration and the specific claims of persons. In these accounts, the state’s right to decide about access always corresponds with the idea of an exception to the state’s unilateral discretion. Hugo Grotius in that sense advocates for a right to stay in a foreign country if there exists a “just cause.”32 Von Pufendorf writes about a duty to admit strangers driven from their homes.33 Von Wolff, despite a strong emphasis on state sovereignty, demands an exceptional admittance of persons expelled from their homes.34 De Vattel recognizes that a “right of necessity” under certain conditions restricts the state’s sovereign prerogative to exclude persons, which amounts to a right to entry.35 Most famously, Immanuel Kant in his essay “Perpetual Peace” describes the right of a stranger not to be rejected if it cannot be done without causing his destruction.36 Kant emphasizes that the obligation towards the stranger is legal in nature and not a mere question of “philanthropy.”37 In the normative reasoning about conditions of migration and territorial access thus appears in different terms the idea of an exception. This idea of an exception should be understood against the background of the above described tension between the demands of universality and of concreteness in the territorial state framework. While the limitation of the universality of rights is generally accepted in favor of the concreteness of rights, this is deemed not acceptable in certain extreme cases, when the life of a person is threatened, and this person is at the border. There is, in that exceptional case, a link to universality, the equal worth of that person, and a link to concreteness, because it is not any person, but the stranger at the border, who can be saved. The idea of an exception in that sense builds on the universalist principles that underlie the modern state and counterbalances their delimitation along territory and membership. The reasoning about an obligation towards the stranger at the border does thereby not take place exclusively with reference to the refugee concept. The concept’s appearance in the same period as the territorial state is significant, yet

32 Ibid., 909; quoting Hugo Grotius, De Jure Belli Ac Pacis (1625; Engl. ed. by Richard Tuck 2005), 1075. 33 Samuel Pufendorf, De Jure Naturae Et Gentium Libri Octo (1672, Engl. ed. by C. Oldfather/W. Oldfather 1934), 366. 34 Christian von Wolff, Jus Gentium Methodo Scientifica Pertractatum (Engl. ed. by J. H. Drake 1934), 149. 35 Chetail, op. cit., 920. 36 “The law of world citizenship shall be limited to conditions of universal hospitality. Here, as in the preceding articles, it is not a question of philanthropy but of right. Hospitality means the right of a stranger not to be treated as an enemy when he arrives in the land of another. One may refuse to receive him when this can be done without causing his destruction; but, so long as he peacefully occupies his place, one may not treat him with hostility,” Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903), 137. 37 Ibid.

Who is a refugee?   23 the subsequent political and legal discourse uses different expressions. Several of the mentioned scholars do not speak about refugees. It is only towards the end of the nineteenth century and beginning of the twentieth century that the refugee notion turns omnipresent.38 As the concept becomes prevalent, it firmly joins with the described idea of a normative exception. This is what today can be called the “normative idea of the refugee,” making the refugee concept such a remarkable point of contestation.

The ambivalence of the refugee concept The refugee concept corresponds to the idea of an exceptional claim to territorial access. In this role of an exception, it is contested from different sides. It is bound to the general rule of a state’s unilateral decision about entry, and in that sense affirms the territorial state order. But as category of exception, it also enables claims to entry and reflects universalist premises which are as fundamental to the modern state as its territorial framework. This ambivalence is tangible in much refugee law litigation and advocacy,39 and it is reflected in the different scholarly perspectives on the refugee concept today. Critiques of the refugee concept can be summarized along three aspects. A first aspect is the fact that the concept supports the general unilateral decision about access. The refugee concept not only expresses an individual story of flight, it also results from restrictions on free movement. In a world without territorial borders there would be no need to justify migration and one would not speak of refugees in the current sense of the term. Obviously, this does not mean that without borders there would be no persecution or flight. Yet different reasons for migration are legally significant only in a system with restricted mobility. In that sense, the refugee concept is seen as affirming the state’s prerogative of regulating and closing borders. Especially where the exceptional claim of the refugee concept is narrowed down, it risks turning into a fig leaf for an order that suppresses migration. A second strand of critique points to the particular European history of the refugee concept and the corresponding bias in its assumptions. “[T]he modern refugee,” Saskia Sassen writes, “is a European product in the same way that the state we see emerging in twentieth century is a European product.”40 This not only underlines the correlation between the refugee concept and the territorial state, but also pinpoints how the European history shaped assumptions about what constitutes significant hardship. In that vein, one can question the hierarchy of reasons for flight, which focuses on religious and political persecution

38 Nevzat Soguk, States and Strangers: Refugees and the Displacement of Statecraft (1999), 103. 39 Jacqueline Bhabha, Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights, Harvard Human Rights Journal 15 (2002), 155 (160). 40 Saskia Sassen, Guests and Aliens (1999), 96.

24   The refugee and views extreme economic hardship to not justify a claim to entry.41 A third strand of critique takes issue with the framing of hardship and suffering that the refugee concept creates. Even if the criteria for protection are debatable, the reference to deprival and vulnerability is built into the concept. This can lead to hard conditions for claiming rights, when persons have to prove their vulnerability. Moreover, the discourse of victimization has been problematized especially in the context of humanitarian aid.42 All these aspects are relevant to the legal codifications of the refugee concept, which the following chapter will turn to. At the same time, the refugee concept has not just a limiting role but also a considerable potential to unsettle. It is not only an object but also an engine of critique. The refugee concept references a claim to protection, which Immanuel Kant describes as the one case of cosmopolitan law.43 Although this claim remains contested and criteria debated, it challenges the idea that the state is the only or the ultimate framework of law. As a claim towards the state from outside, the refugee concept questions the assumption that the political community precedes all law. Theories of the social contract otherwise imagined the political community as already existing and not itself subject to considerations of justice.44 Kant calling this a “cosmopolitan law” invites thinking about how this claim of the refugee concept is distinct from the international or domestic law codifications. Independently from Kant’s choice of terms, the refugee concept offers an important lens on law and democracy beyond the state. Its counterbalancing role within the state framework highlights that the territorial delimitation of rights and obligations has always been accompanied by commitments to openness and solidarity beyond the territorially defined community. This cross-­border commitment of the refugee concept references a concrete, rather than an abstract, universalism. At the basis of this universalism stand not abstract considerations about the equality of human beings, but the concrete encounter of persons at the border.45 This adds a vital perspective to debates in philosophy, political theory and law, which often have contrasted universalism in a Kantian tradition with communitarianism in a Hegelian or critical theory tradition. The refugee concept in that sense can be a starting point for

41 Cf. critically Michelle A. McKinley, Conviviality, Cosmopolitan Citizenship, and Hospitality, Unbound 5 (2009), 64. 42 Liisa H. Malkki, Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization, Cultural Anthropology 11 (1996) 3, 377 (278); Prem Kumar Rajaram, Humanitarianism and Representations of the Refugee, Journal of Refugee Studies 15 (2002) 3, 247; Natasha Saunders, International Political Theory and the Refugee Problem (2018), 33. 43 Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903), 142. 44 Cf. for a contemporary account that excludes questions of borders and access from justice considerations John Rawls, A Theory of Justice (1971), 7. 45 Cf. for a theory of encounter as founding human rights in the context of maritime migration Itamar Mann, Humanity at Sea. Maritime Migration and the Foundations of International Law (2016), 11, 102.

Who is a refugee?   25 c­ onsiderations about law and democracy in a global world, not giving simple answers but allowing to better spell out the questions and to trace the concrete negotiations that take place around access to political membership.

Bibliography Barnett, L., Global Governance and the Evolution of the International Refugee Regime, International Journal of Refugee Law 14 (2002) 2/3, 239. Behrman, S., Law and Asylum. Space, Subject, Resistance (2018, Abingdon: Routledge), doi: 10.4324/9780203730348. Behrman, S., Refugee Law as a Means of Control, Journal of Refugee Studies 32 (2018) 1, 42, doi: 10.1093/jrs/fey016. Bhabha, J., Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights, Harvard Human Rights Journal 15 (2002), 155. Chatterjee, C., International Law and Diplomacy (2013, Abingdon: Routledge), doi: 10.4324/9780203830659. Cherem, M., Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere, The Journal of Political Philosophy 24 (2016) 2, 183, doi: 10.1111/jopp. 12071. Chetail, V., Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vittoria to Vattel, European Journal of International Law 27 (2016) 4, 901, doi: 10.1093/ejil/chw059. Crawley, H./Skleparis, D., Refugees, Migrants, Neither, Both: Categorical Fetishism and the Politics of Bounding in Europe’s “Migration Crisis,” Journal of Ethnic and Migration Studies 44 (2018) 1, 48, doi: 10.1080/1369183X.2017.1348224. Fullerton, M., A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal 26 (1993), 505. Grotius, H., De Jure Belli Ac Pacis (1625; Engl. ed. by Richard Tuck 2005, Indianapolis: Liberty Fund). Encyclopedia Britannica Online, entry: refugee, www.britannica.com/topic/refugee. Haddad, E., The Refugee: Forging National Identities, Studies in Ethnicity and Nationalism 2 (2002) 2, 23, doi: 10.1111/j.1754-9469.2002.tb00025.x. Hailbronner, K./Gogolin, J., Territorial Asylum, in: Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (2012, Oxford: Oxford University Press). Honneth, A., Freedom’s Right: The Social Foundations of Democratic Life (2014, Cambridge: Polity Press). Kant, I., Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903, Whitefish: Kessinger Publishing). Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (1989, Cambridge: Cambridge University Press), doi: 10.1017/ CBO9780511493713. Lister, M., Who are refugees?, Law and Philosophy 32 (2013), 645, doi: 10.1007/si 0982-012-9169-7. Malkki, L. H., Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization, Cultural Anthropology 11 (1996) 3, 377. Mann, I., Humanity at Sea. Maritime Migration and the Foundations of International Law (2016, Cambridge: Cambridge University Press), doi: 10.1017/ CBO9781316563106.

26   The refugee Marfleet, P., Refugees and History: Why we must address the past, Refugee Survey Quarterly 26 (2007) 3, 136, https://doi.org/10.1093/rsq/hdi0248. McAdam, J., An Intellectual History of Freedom of Movement in International Law: the Right to Leave as a Personal Liberty, Melbourne Journal of International Law 12 (2011), 27. McKinley, M. A., Conviviality, Cosmopolitan Citizenship, and Hospitality, Unbound 5 (2009), 64. Miller, D., Strangers in Our Midst: The Political Philosophy of Immigration (2016, Cambridge: Harvard University Press). Noll, G., Seeking Asylum at Embassies: A Right to Entry under International Law?, International Journal of Refugee Law 17 (2005) 3, 542. Pufendorf, S., De Jure Naturae Et Gentium Libri Octo (1672, Engl. ed. by C. Oldfather/W. Oldfather 1934, Oxford: Clarendon Press). Rajaram, P. K., Humanitarianism and Representations of the Refugee, Journal of Refugee Studies 15 (2002) 3, 247, doi: 10.1093/jrs/15.3.247. Rawls, J., A Theory of Justice (1971, Cambridge: Harvard University Press). Sassen, S., Guests and Aliens (1999, New York: The New Press). Saunders, N., International Political Theory and the Refugee Problem (2018, Abingdon: Routledge). Schilling, H., Early Modern European Civilization and Its Political and Cultural Dynamism (2008, Waltham: Brandeis University Press). Schmalz, D., Social freedom in a global world: Axel Honneth’s and Seyla Benhabib’s reconsiderations of a Hegelian perspective on justice, Constellations 26 (2019) 2, 301, doi: 10.1111/1467-8675.12391. Shacknove, A. E., Who Is a Refugee?, Ethics 95 (1985) 2, 274. Soguk, N., States and Strangers: Refugees and the Displacement of Statecraft (1999, Minneapolis: University of Minnesota Press). Spruyt, H., The End of Empire and the Extension of the Westphalian System: The Normative Basis of the Modern State Order, International Studies Review 2 (2000) 2, 65. Tießler-Marenda, E., Einwanderung und Asyl bei Hugo Grotius (2002, Berlin: Duncker & Humblot). Tilly, C., The Formation of National States in Western Europe (1975, Princeton: Princeton University Press). Tuitt, P., False Images: Law’s Construction of the Refugee (1996, East Haven: Pluto Press). Tuitt, P., Rethinking the Refugee Concept, in: Frances Nicholson/Patrick Twomey (eds.), Refugee Rights and Realities (1999, Cambridge: Cambridge University Press), 106–118. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (3rd revised edition 2019, Geneva). von Wolff, C., Jus Gentium Methodo Scientifica Pertractatum (Engl. ed. by J. H. Drake 1934, Oxford: The Clarendon Press). Zetter, R., More Labels, Fewer Refugees: Remaking the Refugee Label in an Era of Globalization, Journal of Refugee Studies 20 (2007) 2, 172, doi: 10.1093/jrs/fem011. Zimmermann, A./Mahler, C., Article 1 A, Paragraph 2, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011, Oxford: Oxford University Press). Zolberg, A./Suhrke, A./Aguato, S., Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989, New York: Oxford University Press).

2 Who decides who is a refugee?

The beginnings of international refugee law In the codification of refugee law, two strands of norms and normative thought merged: the acceptance of refugees as a special kind of migrants, and the non-­ extradition of persons in case of certain political offenses. The former links to the refugee concept and the idea of an exceptional claim to territorial access, the latter developed in the context of state cooperation in criminal law. These two strands are visible in the slow move towards codification in some domestic legal systems and, in the twentieth century, in international law. The codification did thereby not so much mark a new openness towards immigration and refugees, but rather reacted to a successive narrowing of possible migration. For a variety of factors, conditions of mobility and access to political membership tightened in Europe in the course of the nineteenth century. Among them was a shift in the political significance of nationalism in Europe, from popular movements using the reference to the nation in struggles for independence or democracy, to a form of “official nationalism” employed to retain power by referring to a legitimating national subject.1 The emphasis on this national subject went hand in hand with an increasing focus on unified language and a projection of cultural homogeneity. Rules differed from state to state, yet overall, immigration became regulated in a more restrictive manner.2 At the end of the nineteenth century, the assumption that a state had full discretion in regulating immigration was broadly shared and reflected in law.3

1 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983), 86. 2 John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (2010), 93; Phil Orchard, The Dawn of International Refugee Protection: States, Tacit Cooperation and Non-Extradition, Journal of Refugee Studies 30 (2017) 2, 282 (290). 3 Henry Sidgwick, The Elements of Politics (1891), 248; discussed in David Miller, Immigrants, Nations, and Citizenship, The Journal of Political Philosophy 16 (2008) 4, 371 (373); cf. also the extensive references to international legal scholarship in the US Supreme Court, Fong Yue Ting v. United States, May 15, 1893, 149 U.S. 698, as discussed in T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, American Journal of International Law 83 (1989), 863.

28   The refugee At the same time, there were first rules on the protection guaranteed to strangers. The 1905 British Aliens Act is exemplary for the restrictive stance towards immigration, yet it also contains a clause about an exception to the bar on entry, in case of persecution for political opinion or religious identity.4 This legal codification was a novelty.5 Other states in Europe did not have comparable rules at the time; while refugees were received in many cases, no specific legal status existed.6 In France, the constitution of 1793 had laid down that “[t]he French people grants asylum to strangers expelled from their home for reasons of liberty,”7 however, this constitution never entered into force. In the United States of America, a destination for many refugees at the time, no specific policy existed yet there was also no numeral restriction on immigration.8 The second strand of norms concerns the non-­extradition of persons. The cooperation of European states in matters of police and criminal law intensified in the nineteenth century and included the mutual promise to extradite persons.9 Contained in these agreements were limits for which crimes states promised to extradite a person.10 That persons sought on political grounds would not be extradited became a principle.11 Phil Orchard describes how several states concluded agreements and included provisions in their domestic legislation: Belgium in 1833, France in 1834, the United States in 1848 and Britain in 1870.12 In the later codification of refugee protection in the twentieth century, this history of non-­extradition joins with the normative idea of an exceptional claim to entry and protection. From the 1880s onwards, large movements of flight took place in Europe, especially of Jews from Russia and Eastern Europe, and of populations that had been part of the dissolving Ottoman Empire.13 World War I raised the extent of displacement to unprecedented levels.14 In reaction to these events, first international instruments of refugee protection were established. In 1921, the office of a High Commissioner for Refugees was created in the League of Nations,

  4 Aliens Act, 1905 [5 Edw. 7, Ch. 13], Article 1 para. 3.   5 Alison Bashford/Jane McAdam, The Right to Asylum: Britain’s 1905 Aliens Act and the Evolution of Refugee Law, Law and History Review 32 (2014) 2, 311.   6 On the history in Germany Jochen Oltmer, Ein deutsches Asylrecht am Ende der Weimarer Republik? Das Auslieferungsasyl in Westeuropa und seine Grenzen, in: Themenportal Europäische Geschichte (2017).   7 Article 120 of the 1793 Constitution, original text: Le peuple français donne l’asile aux étrangers bannis de leur patrie pour la cause de la liberté. Il le refuse aux tyrans.   8 Deborah Anker, U.S. Immigration and Asylum Policy: A Brief Historical Perspective, In Defense of the Alien 13 (1990), 74 (75).   9 See Oltmer, op. cit. 10 M. Charles Brocher, Rapport sur l’extradition et les commissions rogatoires en matière pénale, IDI Annuaire Volume 3–4 (1879/80). 11 Orchard, op. cit., 292. 12 Ibid., 293. 13 Saskia Sassen, Guests and Aliens (1999), 77. 14 Ibid., 83.

Who decides who is a refugee?   29 and Fridtjof Nansen appointed the first High Commissioner.15 The refugee notion in those years became the reference term for humanitarian activities, legal protection, and the surrounding debates.16 The first instruments for international protection thereby worked without explicit definition of the refugee. Instead, the instruments applied to specifically identified groups. The first international treaty was the 1933 Refugee Convention Relating to the International Status of Refugees, which applied to Russian, Armenian, and assimilated refugees.17 In the subsequent years, international legal endeavors focused on refugees from Nazi Germany and from occupied European states. The 1938 Convention Regarding the Status of Refugees Coming from Germany in that sense designated to whom it should apply and did not contain an abstract definition of refugees. It excluded from its scope of application, however, persons “who leave Germany for reasons of purely personal convenience.”18 In summary, the responses offered to refugees fleeing persecution from the Nazis and World War II were insufficient. Many who sought escape could not find a state that allowed them to enter.19 In that sense, the Évian Conference in 1938 and the Bermuda Conference in 1943 have become seen as epitomes of the international community’s inability to agree on more effective protection. The International Refugee Organization (IRO) was created in 1946 in the framework of the United Nations, to administer and provide support to refugees in the aftermaths of World War II. The IRO Constitution contained a section on the “definition of refugees.”20 It stipulates as a general criterion for refugee status the situation of a person outside their country of nationality or former habitual residence, and subsequently enumerates several categories of persons. On the one hand, the definition remains case-­specific with a focus on “victims of the Nazi or fascist regimes” or their allies,21 or “victims of the Falangist regime.”22 On the other hand, the definition includes rather broadly persons “considered refugees before the outbreak of World War II, for reasons of race, religion, nationality or political opinion,”23 persons who have left their state of

15 Gilbert Jaeger, On the History of the International Protection of Refugees, International Review of the Red Cross 83 (2001) 843, 727. 16 E.g. Norman Angell, You and the Refugee (1939). 17 Cf. Article 1 of the 1933 Convention relating to the International Status of Refugees. Assimilated refugees encompassed Syrians, Assyro-Chaldeans, Syrians, Kurds and a small number of Turks, cf. Jaeger, op. cit., 730. 18 Article 1 para. 2 of the Convention concerning the Status of Refugees coming from Germany, February 10, 1938. 19 Cf. the paradigmatic story of the Ship St. Louis, United States Holocaust Memorial Museum, Voyage of the St. Louis, Holocaust Encyclopedia; www.ushmm.org/wlc/en/ article.php?ModuleId=10005267; cf. also Norman Angell, You and the Refugee (1939), 25. 20 1946 Constitution of the International Refugee Organization, Annex I, Part I Section A. 21 Ibid., No. 1 a. 22 Ibid., No. 1 b. 23 Ibid., No. 1 c.

30   The refugee origin in the context of World War II and are “unable or unwilling to avail [themselves] of the protection of [its] government,”24 victims of Nazi persecution waiting to return to Germany or Austria,25 as well as “unaccompanied children who are war orphans or whose parents have disappeared.”26 The IRO was the predecessor to UNHCR and its work ended in 1952. In 1949, the UN Economic and Social Council (ECOSOC) convened a committee to discuss the possibilities of a new international convention on the protection of stateless and refugees.27 Members of the IRO were centrally involved in the first drafting for what later became the Geneva Refugee Convention (GRC).28 For the Convention’s personal scope of application, the drafters proposed three possible versions: the competence of the United Nations General Assembly to decide in each case which groups of persons should receive legal protection; the list from the annex to the IRO Constitution; or a definition to be contained in the Refugee Convention itself.29 State representatives agreed on the third option, and the negotiations thereafter revolved around the formulation of the definition.30 The proposed definitions ranged from the reference to concrete groups of displaced persons to more abstract definitions.31 In the end, a mixed solution was chosen: the GRC is applicable to all persons regarded as refugees in prior international treaties,32 but also stipulates general criteria for refugee status. A first abstract definition of the refugee in international law had come into being.

The perplexities of codification These beginnings of international refugee law illustrate general questions of legal codification. Gilad Ben-­Nun describes the evolution as an opposition between an ad-­hoc and a universal approach.33 He notes how the responses

24 Ibid., No. 2. 25 Ibid., No. 3. 26 Ibid., No. 4. 27 UN Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons – Memorandum by the Secretary-General, January 3, 1950, E/AC.32/2. 28 Irial Glynn, The Genesis and Development of Article 1 of the 1951 Refugee Convention, Journal of Refugee Studies 25 (2011) 1, 134 (136). 29 UN Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons – Memorandum by the Secretary-General, January 3, 1950, E/AC.32/2, available at: www.refworld.org/ docid/3ae68c280.html. 30 Geneva Refugee Convention, Travaux préparatoires with Commentary by Paul Weis (1995). 31 Cf. in particular UN Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Fifth Meeting, January 18, 1950, E/AC.32/SR.5, and UN Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Sixth Meeting, January 19, 1950, E/AC.32/SR.6. 32 Article 1 A para. 1 GRC. 33 Gilad Ben-Nun, From Ad Hoc to Universal: The International Refugee Regime from Fragmentation to Unity 1922–1954, Refugee Survey Quarterly 34 (2015), 23 (30).

Who decides who is a refugee?   31 before the 1951 Convention were piece-­meal rather than encompassing and left non-­European refugees mostly out of view.34 Responses that focused on specific situations were less universal, in Ben-­Nun’s terms. At the same time, they were relatively inclusive for those specific groups. The adoption of an abstract definition in the GRC opened the way for a universal regime, which is not limited to specific nationalities. However, such a system must set up specific criteria and as such becomes restrictive in a different sense. The ad-­hoc approach that worked without a refugee definition meant fewer legal guarantees yet potentially allowed states to react to specific situations in a swift and coordinated manner. An abstract definition meant an individual approach, in which each claim was in theory assessed separately. This, again, had its advantages and disadvantages. It was a great achievement in terms of individual protection, but it also opened the way to a regime in which larger movements would be treated as out of the normal.35 Of course, the choice was not exclusively between a piece-­meal approach and a narrow definition. The first definition proposed by Paul Weis in the drafting of the convention was both universal, in the sense of not being limited to specific regions or states, and rather wide in its criteria.36 The challenge for codification was not simply a pragmatic question of how the best legal response could be designed, it was also a political contending between a stronger commitment to the idea that refugees must receive protection, and states’ wish to limit their responsibilities. Nonetheless, the negotiations of the GRC also point to deeper perplexities around codifying the normative idea of the refugee. These perplexities are threefold. First, a stipulation of criteria moves from a claim that is to be negotiated to a general determination, which cannot take into account unforeseen circumstances. This is not specific to refugee law but might be called the general “violence of law.”37 A piece-­meal approach in international refugee law avoids such determination of definite criteria and instead attributes an international institution the power to decide. This might allow a more flexible assessment of the claims raised, although historically it did not necessarily mean a more generous approach. The second perplexity of codification is more specific to refugee law: the normative idea of the refugee concept concerns the relationship between the stranger at the border and the state. It represents a claim towards the state from outside. The codification, however, takes place in state-­centric procedures. There is, in other words, a democratic asymmetry in the codification of refugee

34 Ibid., 26. 35 Cf. Étienne Balibar, Equaliberty (2014), 264. 36 Ibid., 34. 37 Jacques Derrida, Force of Law: The Mystical Foundation of Authority, Cardozo Law Review 11 (1990), 937; Robert M. Cover, Violence and the Word, Yale Law Journal 95 (1986), 1601.

32   The refugee protection. In the negotiations about the GRC, this bias towards the state interest and states’ concerns about limiting their sovereign prerogative was evident. The regulations build on the refugee concept as an exception to states’ unilateral discretion regarding territorial access, yet the concrete implementation remains subject to that very kind of unilaterality. While Kant speaks of the obligation to not reject the stranger in need as a cosmopolitan law,38 the international legal rules are of course not cosmopolitan in nature, they might be compared to a static print of that “cosmopolitan” law. This structural distinction is part of the explanation why the normative idea of the refugee retains such vigor beside the legal definition. Yet it also highlights the democratic significance of the question “who decides who is a refugee?.” The rules of refugee law affect those fleeing their states of origin, whether they qualify as refugees or not. These persons, however, are mostly excluded from a political voice in the development of refugee law. Since refugees typically fall outside state structures of democratic representation, refugee law structurally lacks the democratic influence from those most directly affected by its rules. Third, the codification exposes the tension between the universalist idea the refugee concept is based on and its particular history. The critique of this particular European history has been mentioned above, yet the role of codification should be clarified. Alongside the refugee concept there are other normative histories of protection or hospitality towards strangers. Comparable traditions exist in other linguistic, religious and cultural communities.39 It is the European history, however, that foremost informed the codification. English and French were the languages in which the GRC was negotiated,40 and the explicit focus of the convention was the displacement in Europe following World War II. Reflecting about this European background of the convention becomes more relevant with its formal universalization through the 1967 Protocol. The definition of the GRC became the reference point for international discourse, and even competing definitions start from these formulations.

Competing legal definitions and the politics of designation The European focus and evolving meaning of the refugee concept was the subject of legal developments and debates in the decades following the GRC. The Geneva Refugee Convention, as cited above, defines as a “refugee” any person who

38 In German “weltbürgerliches Recht,” which is translated in the quoted English edition not as “cosmopolitan law” but as “law as world citizenship,” for the German version see Immanuel Kant, Zum ewigen Frieden (1795, Suhrkamp 2011), 30. 39 Cf. for instance the institution of “aman,” Ghassan Maârouf Arnaout, Asylum in the ArabIslamic Tradition, in: Karen Musalo/Jennifer Moore/Richard A. Boswell (eds.), Refugee Law and Policy – A Comparative and International Approach (2007), 5. 40 See Glynn, op. cit., 138.

Who decides who is a refugee?   33 […] owing to well-­founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.41 It was accompanied by a temporal limitation to flight resulting from events before January 1, 1951, and by the possibility for states to declare a geographical restriction to persons coming from Europe. The temporal limitation and the possibility to declare a geographical restriction were lifted with the 1967 Protocol, which in that sense “universalized” the GRC. The need for extending the scope of the GRC was apparent in several situations of flight and displacement outside Europe, appearing mostly in connection to processes of decolonization and corresponding conflicts about the drawing of borders and new constellations of ethnic and cultural majorities in states. In these situations, the UN High Commissioner for Refugees (UNHCR) assumed an important role. Founded in 1950, it worked without geographic limitation. While it initially had been foreseen that UNHCR would operate only for three years, its mandate was continuously prolonged and became permanent in 2003. Moreover, its mandate mainly foresaw the coordination of legal protection by states, yet in light of the need, UNHCR quickly broadened its scope of activities. For refugee situations outside Europe in the late 1950s and the 1960s, UNHCR began to provide material assistance under the formula of “good offices.”42 In contrast to the limited scope of the GRC at the time, the scope of the UN refugee agency’s work was potentially global. The adoption of the 1967 Protocol took place in view of ongoing negotiations for an African Refugee Convention. Alongside the apparent need for a legal framework for refugee protection, these negotiations aimed at broadening the refugee definition. In that sense, the 1969 Refugee Convention adopted by the Organization of African Unity (OAU) defines the refugee first by reiterating the GRC-­definition,43 but furthermore states that the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or

41 Article 1 A para. 2 GRC. 42 Gil Loescher, The UNHCR and World Politics: State Interests vs. Institutional Autonomy, International Migration Review 35 (2001) 1, 37. 43 Article 1 para. 1 of the Organization of African Union 1969 Convention Governing ­Specific Aspects of Refugee Problems in Africa (OAU-Convention).

34   The refugee ­ ationality is compelled to leave his place of habitual residence in order to n seek refuge in another place outside his country of origin or nationality.44 Most importantly, this definition extends the refugee notion to persons fleeing indiscriminate violence, for example through civil wars. The definition of the OAU-­Convention has not only been relevant for refugee protection in Africa, but also became a blueprint for broader conceptions in general, and especially for refugee definitions in states of the Global South. The 1984 Cartagena Declaration of Latin American states references the OAU Convention.45 It notes that based on the experiences in the region, it appears “necessary to consider enlarging the concept of a refugee.”46 Like the OAU-­Convention, it begins by citing the GRC-­definition, before recommending that the notion of the refugee shall also include persons who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.47 This definition in some respects goes beyond the definition of the OAU-­ Convention, especially with its reference to human rights violations. The Cartagena Declaration is not legally binding, but its refugee definition has been approved by the General Assembly of the Organization of American States (OAS), which urged member states to adhere to the Declaration in their laws on refugee protection.48 In consequence, the definition has been incorporated in the legislation of most Latin American states.49 No comparable Asian regional framework of refugee protection or widely shared refugee notion exists. What offers some indication of the refugee definition endorsed in the region are the 2001 Bangkok Principles issued by the Asian-­African Legal Consultative Organization (AALCO), which comprise a definition of the refugee identical to the OAU Convention.50

44 Article 1 para. 2 OAU-Convention. 45 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, November 22, 1984. 46 Ibid., Section III Conclusion 3. 47 Ibid. 48 James Hathaway, The Law of Refugee Status (1991), 20. 49 Michael Reed-Hurtado, The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America, UNHCR Legal and Protection Policy Research Series (2013), 16. 50 Cf. Article 1 para. 1 and 2 of the Bangkok Principles, Asian-African Legal Consultative Organization (AALCO), June 24, 2001. Cf. also Fernando Chang-Muy, International Refugee Law in Asia, NYU Journal of international Law and Politics 24 (1991/1992), 1171 et seq.; Lili Song, Who Shall We Help? The Refugee Definition in a Chinese Context, Refugee Survey Quarterly 33 (2014) 1, 44.

Who decides who is a refugee?   35 In contrast to these broader definitions of the refugee other legal frameworks recognize the need to offer protection beyond the scope of the GRC yet created different terms to respond to that need. The Canadian Immigration and Refugee Protection Act in that sense distinguishes between “convention refugees” and other “persons in need of protection.”51 Within this second strand, the Canadian legislation refers to, among other bases for protection, the Convention against Torture (CAT).52 The Australian Migration Act foresees protection visa either for convention refugees, or for persons whose refoulement would result in serious harm.53 Australia’s refugee policy generally builds on the separation between a “refugee component” and a “special humanitarian component,” with an increasing part of migrants being dealt with under the latter.54 The refugee concept of the United States 1980 Refugee Act is broader than the GRC definition in that it does not require the person to be outside her country of nationality or habitual residence, thus including internally displaced persons.55 Otherwise, US law builds on the GRC definition but in addition offers protection under the CAT.56 The legal framework of the European Union distinguishes between protection of persons as refugees, and “subsidiary protection” for individuals who would without protection face “serious harm.”57 The EU Qualification Directive cites the GRC definition,58 while explicitly allowing member states to employ a broader definition of the refugee.59 What these different choices of designation mean for the respective stance towards protection is not a simple equation. The scope of the refugee definition alone says little about the scope of protection offered. However, the choices of designation are not insignificant either. Whether states opt to broaden the refugee definition or to introduce alternative terms of protection structures has an effect not only on the legal rights of persons but also on the political debates

51 Canadian Immigration and Refugee Protection Act (S.C. 2001, c. 27), s. 96 and s. 97 respectively. 52 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), December 10, 1984. 53 Australian Migration Act 1958 – SECT 36. 54 Susan Kneebone, The Australian Story: Asylum Seekers outside the Law, in: Susan Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (2009), 177–178. 55 US Immigration and Nationality Act §101 (a) (42) 8 U.S.C. See also Stephen H. Legomsky, Refugees, Asylum and the Rule of Law in the USA, in: Susan Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (2009), 131 and 161. 56 T. Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy (8th edition, 2016), 882. 57 Article 2 para. f, Article 15 et seq. of the Directive 2011/95/EU of the European Parliament and of the Council of December 13, 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Qualification Directive). 58 Article 2 para. d, Article 9 et seq. Qualification Directive. 59 Article 3 Qualification Directive.

36   The refugee about these rights. Given the described normative dimension of the refugee concept, the choices of designation also express and impact a perception of legitimacy. In that sense, the adoption of labels for protection is part of a politics of designation. One main argument thereby concerns the comparability of refugee movements in different times and regions. Looking for instance at the Cartagena Declaration: Michael Reed-­Hurtado describes how its adoption responded to changing protection needs that international law was insufficiently addressing.60 Following the large-­scale flight of persons from Cuba, Bolivia, Haiti, Honduras, Nicaragua, and Paraguay in the 1960s, the Inter-­American Commissioner on Human Rights diagnosed a difference from “refugees of former times,”61 and recommended the preparation of a regional instrument. The forms of flight and displacement were, however, not new as such, nor were they specific to Latin America. Early instruments of international refugee protection had dealt with large-­scale displacement rather than individual asylum seekers. Within Europe, the breakup of Yugoslavia caused the flight of high numbers of persons. It was also not a given that flight from one region would have to be dealt with in the region alone. Regional political developments can explain that broader refugee definitions were adopted in the OAU-­Convention and the Cartagena Declaration, yet they do not explain the reluctance in other states, especially in the Global North, to follow suit. The choices against enlarging the refugee definition can be seen as not only delimitating legal obligations but also shaping the public perception of normative obligations. The creation of separate protection schemes such as subsidiary protection in Europe comes with a minus in rights for those protected under the latter notion, and it has an impact on how the claims of persons seeking protection are perceived. By casting protection as an addition to what is originally owed to refugees, the law frames this protection as generosity rather than rights. Retaining a narrow refugee definition and adding additional designations moreover contributes to what B. S. Chimni has called the “myth of difference”:62 the idea that refugee flows in and from the Global South are fundamentally dissimilar from former refugee flows in and from Europe. On the one hand, the politics of designation thus highlight the normative dimension that the refugee concept retains beyond its immediate legal significance. Conversely, the choice of terms affects the broader conceptions of the refugee, as it influences the vocabulary and distinctions in public debates that yield effects even where they are contested. The designation of a claim to protection has significance for the public debate about its legitimacy, and by framing situations as similar or dissimilar affects the future direction of legal frameworks.

60 Reed-Hurtado, op. cit., 6. 61 Ibid., 7. 62 B. S. Chimni, The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies 11 (1998) 4, 350.

Who decides who is a refugee?   37

Democratic iterations of the refugee concept Tracing and comparing the legal developments sheds light on one of the perplexities of codification: that international refugee law began with a European focus and remains based on this particular history. The described politics of designation take place on the level of legislation, in that sense they only mirror one part in the contestations around the refugee concept. Yet they also highlight the link between legal terms and public debates about the legitimacy of claims. Seeking to describe the contentions around the refugee concept, outside and in dialogue with the legal rules, the concept of democratic iterations that Seyla Benhabib introduced is helpful. Democratic iterations are, in her words, “processes of public argument, deliberation, and exchange through which universalist rights claims are contested and contextualized, invoked and revoked, posited and positioned throughout legal and political institutions as well as in the associations of civil society.”63 Building on Jacques Derrida’s concept of iteration,64 Benhabib lays out the conception of a universalist norm as not having one actual or original meaning but being shaped by each use in different contexts. Not only can a concept be used with different meanings, the respective employments constitute a part of the concept as such. This clarifies the understanding of how the refugee concept retains a normative dimension that is neither detached from the legal definitions nor fully determined by them. Moreover, it allows us to better grasp its role as a normative idea: the refugee concept links to the idea of an exceptional claim to access. Although the conditions of this claim are not fixed, the idea is a continuous reference point of normative debates. As described in the first chapter, the refugee is a concept invoked in various ways: to describe a situation, to express a normative understanding, in a legal sense, or to criticize the legal definition. The refugee term is used for making claims – within, outside, and against the law. In uses of the refugee concept, whether engaging explicitly with its meaning or using it in a certain way, its ambivalence as affirming and challenging the territorial state order is reflected. Reports and statements that describe persons in distress as refugees, communicate their experiences, and support their claim to protection, can be read to re-­introduce the general normative claim of the refugee concept. This underlines how the state-­centered nature of law-­making does not mean an exclusive hold of “state interests” on the content of the refugee concept. The state’s interest in discretion regarding access does not equate an interest to exclude, and legislation regarding refugee protection is the outcome of the diverse and conflicting normative demands inside the state. This may include on

63 Seyla Benhabib, The Rights of Others (2004), 179; Seyla Benhabib, The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Scepticism and Statist Realism, Global Constitutionalism 5 (2016) 1, 109 (122). 64 Jacques Derrida, Signature Event Context (1972), in: Jacques Derrida, Limited Inc (1988), 53.

38   The refugee the collective level a self-­conception as generous,65 but more importantly, it is influenced by the various individual opinions on what the normative idea of the refugee means and demands. Yet also the public processes of deliberation about legitimate migration laws are marked by structural absence of refugee voices. Refugees regularly not only fall outside legal structures of democratic representation but also remain marginalized in public deliberation for several reasons: their physical absence in case of laws hindering their arrival, their restricted mobility whether through detention or other legal and practical limitation, their precarious legal status. Also on the international level, the consultation of refugees has been chronically absent in legal considerations about refugee protection.66 The concept of democratic iterations opens a perspective on how this democratic exclusion is not absolute. Rather, political voice and influence should be seen as a range, which includes formal and informal avenues. What are factors for refugee’s political voices inside and outside formal procedures? In pursuing this question, the contentions around the refugee concept must be seen in the wider framework of the democratic state. The claim to access that is linked to the refugee concept challenges the “first principle” of the state system: the control over admission.67 The control over admission is given such weight because territorial co-­presence constitutes the basis of political equality. Once a person is accepted on the territory, her presence after a certain duration gives rise to a claim to membership. The territorial state is, at least in theory, built on the assumption of legal and political equality of all inhabitants. This conception of legal and political equality at the inside corresponds with a concern to control access. In that sense, the refugee concept relates to the tension between the universalism at the basis of law and its need for institutions. The following chapters will further explore this tension and the conditions of political voice at the margins of the democratic community.

Bibliography Aleinikoff, T. A., Federal Regulation of Aliens and the Constitution, American Journal of International Law 83 (1989), 863. Aleinikoff, T. A., State-­Centered Refugee Law: From Resettlement to Containment, Michigan Journal of International Law 14 (1992) 1, 136. Aleinikoff, T. A./Martin, D. A./Motomura, H./Fullerton, M./Stumpf, J. P., Immigration and Citizenship: Process and Policy (8th edition, 2016, Eagan: West Academic Publishing). Anderson, B., Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983, New York: Verso books).

65 Rebecca Stern, “Our Refugee Policy is Generous”: Reflections on the Importance of a State’s Self-Image, Refugee Survey Quarterly 33 (2014) 1, 25. 66 T. Alexander Aleinikoff, State-Centered Refugee Law: From Resettlement to Containment, Michigan Journal of International Law 14 (1992) 1, 136. 67 Ibid., 121.

Who decides who is a refugee?   39 Angell, N., You and the Refugee (1939, London: Penguin). Anker, D., U.S. Immigration and Asylum Policy: A Brief Historical Perspective, In Defense of the Alien 13 (1990), 74. Arnaout, Ghassan Maârouf Asylum in the Arab-­Islamic Tradition, in: Karen Musalo/Jennifer Moore/Richard A. Boswell (eds.), Refugee Law and Policy – A Comparative and International Approach (2007, Durham: Carolina Academic Press), 5. Balibar, É., Equaliberty (2014, Durham: Duke University Press). Bashford, A./McAdam, J., The Right to Asylum: Britain’s 1905 Aliens Act and the Evolution of Refugee Law, Law and History Review 32 (2014) 2, 311, doi: 10.1017/ S0738248014000029. Benhabib, S., The Rights of Others (2004, Cambridge: Cambridge University Press). Benhabib, S., The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Scepticism and Statist Realism, Global Constitutionalism 5 (2016) 1, 109, doi: 10.1017/S2045381716000010. Ben-­Nun, G., From Ad Hoc to Universal: The International Refugee Regime from Fragmentation to Unity 1922–1954, Refugee Survey Quarterly 34 (2015), 23, doi: 10.1093/rsq/hdv005. Brocher, M. C., Rapport sur l’extradition et les commissions rogatoires en matière pénale, IDI Annuaire Volume 3–4 (1879/80). Chang-­Muy, F., International Refugee Law in Asia, NYU Journal of International Law and Politics 24 (1991/1992), 1171. Chimni, B. S., The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies 11 (1998) 4, 350, doi: 10.1093/jrs/11.4.350-a. Cover, R. M., Violence and the Word, Yale Law Journal 95 (1986), 1601. Derrida, J., Signature Event Context (1972), in: J. Derrida, Limited Inc (1988, Evanston: Northwestern University Press), 53. Derrida, J., Force of Law: The Mystical Foundation of Authority, Cardozo Law Review 11 (1990), 937. Glynn, I., The Genesis and Development of Article 1 of the 1951 Refugee Convention, Journal of Refugee Studies 25 (2011) 1, 134, doi: 10.1093/jrs/fer054. Hathaway, J. The Law of Refugee Status (1991, Cambridge: Cambridge University Press). Jaeger, G., On the History of the International Protection of Refugees, International Review of the Red Cross 83 (2001) 843, 727. Kant, I. Zum ewigen Frieden (1795, Frankfurt: Suhrkamp 2011). Kneebone, S., The Australian Story: Asylum Seekers outside the Law, in: S. Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (2009, Cambridge: Cambridge University Press), 171. Legomsky, S. H., Refugees, Asylum and the Rule of Law in the USA, in: S. Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (Cambridge: Cambridge University Press 2009), 122. Loescher, G., The UNHCR and World Politics: State Interests vs. Institutional Autonomy, International Migration Review 35 (2001) 1, 37, doi: 10.1111/j.1747-7379. 2001.tb00003.x. Miller, D., Immigrants, Nations, and Citizenship, The Journal of Political Philosophy 16 (2008) 4, 371, doi: 10.1111/j.1467-9760.2007.00295.x. Oltmer, J., Ein deutsches Asylrecht am Ende der Weimarer Republik? Das Auslieferungsasyl in Westeuropa und seine Grenzen, in: Themenportal Europäische Geschichte (2017), www.europa.clio-­online.de/essay/id/fdae-­1706.

40   The refugee Orchard, P., The Dawn of International Refugee Protection: States, Tacit Cooperation and Non-­Extradition, Journal of Refugee Studies 30 (2017) 2, 282, doi: 10.1093/jrs/ few014. Reed-­Hurtado, M., The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America, UNHCR Legal and Protection Policy Research Series (2013). Sassen, S., Guests and Aliens (1999, New York: New Press). Sidgwick, H., The Elements of Politics, (1891, New York: Cosimo Classics 2005). Song, L., Who Shall We Help? The Refugee Definition in a Chinese Context, Refugee Survey Quarterly 33 (2014) 1, doi: 10.1093/rsq/hdt022. Stern, R., “Our Refugee Policy is Generous”: Reflections on the Importance of a State’s Self-­Image, Refugee Survey Quarterly 33 (2014) 1, doi: 10.1093/rsq/hdt020. Torpey, J., The Invention of the Passport: Surveillance, Citizenship and the State (2010, Cambridge: Cambridge University Press), doi: 10.1017/CBO9780511520990. Weis, P., (ed.), The Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (1995, Cambridge: Cambridge University Press).

Part II

Democracy’s edges

3 Citizenship and the claiming of rights

Citizenship in the territorial state When the democratic constitutional state developed in Europe in the eighteenth and nineteenth centuries, it did so in the form of the territorial state. The territorial framework shaped the conception of citizenship that emerged in these centuries. Historically, citizenship has taken many forms, and the term is employed today with manifold purposes and premises, referring to conceptions of collective identities, to formal rights, and to political practices.1 Etymologically, citizenship denotes the population of a city. Yet the notion of citizenship never extended to the entire population in a place; it always depended on a notion of who is considered a “full member” and a political equal.2 Citizenship references a form of recognized belonging, and the position to participate in public affairs of a community. In the democratic constitutional state, law and politics stand in a relationship of mutual dependence. Politics are framed and enabled by law: through procedures that regulate the exercise of power and public exchange. Law is, in turn, the outcome of politics: it is created in formal procedures of decision-­making, which are accompanied by informal processes of deliberation and argument. In this mutual dependence of law and politics, citizenship represents the key junction. It mediates how law frames politics, through the status of citizenship and rules about the political rights of citizens, including the right to vote and to stand for election. Backed by the right to vote, citizens possess means to control the elected representatives. The law on these various levels channels and enables the political debate and attributes power. Who can participate in these processes, is determined by laws that allocate citizenship and political rights. Territory thereby forms the reference point of legal and political equality. Law applies to all persons on the territory and territorial borders delimitate the exercise of power. While not all persons present on the territory immediately hold

1 Saskia Sassen, Towards Post-National and Denationalized Citizenship, in: Engin F. Isin/ Bryan S. Turner (eds.), Handbook of Citizenship Studies (2002), 277 (278). 2 Cf. Judith Butler, Notes Toward a Performative Theory of Assembly (2015), 3.

44   Democracy’s edges political membership, it seems inacceptable for a democratic state that persons who are durably present do not have access to full membership at some point. Citizenship in the territorial state is a status attributed through law, yet not arbitrarily. The claim that citizenship should correspond to actual presence in the state or some “genuine link,” has been the subject of the famous Nottebohm Case of the International Court of Justice in 1955.3 It is currently discussed in particular with view to the sale of citizenship that some states engage in.4 The link of territorial presence and political membership is also what gives the refugee concept such weight. Citizenship and democratic institutions transform the general commitment to freedom and equality into actual legal rights. The institutions of the state are based on territorial delimitation; since persons permanently co-­present should be able to become citizens, the state has such an interest in controlling immigration. To properly understand the relationship between citizenship and the refugee, these two sides must be taken into account. Citizenship developed historically as a concretization of universalist values. The concrete promise of political influence that is linked to citizenship is achieved partly at the cost of a demarcation. Political equality is guaranteed to a circumscribed group, those that are co-­present in a particular place. Within the concept of citizenship itself, there is a tension between the necessary delimitation and its universalist basis. The refugee, in turn, finds herself at the margin of political membership. The refugee concept links to an exceptional claim to access; at the same time, the transformation of this claim into law means a structural absence of the voice of those claiming admission as refugees. In the case of the refugee, not only the access to territory but also the access to a minimal political voice is at stake. Exploring citizenship with view to the refugee situation is therefore a reflection about the margins of citizenship and the movability of these margins. At the same time, citizenship provides a perspective on the refugee concept that clarifies the weight of admitting persons. The conditions of negotiating the claim of the refugee concept correspond to the question of who can participate in these negotiations, thus the access to political voice. And they regard the content of these negotiations, namely how admitting refugees cannot separate the granting of protection from the potential access to becoming a political equal.

Citizenship at the junction of law and politics In his classic treatment of citizenship, T. H. Marshall distinguishes three elements of citizenship: the civil, the social and the political element.5 The civil

3 International Court of Justice, Nottebohm Case (Liechtenstein v. Guatemala), April 6, 1955. 4 Ana Tanasoca, Citizenship for Sale: Neomedieval, not Just Neoliberal?, European Journal of Sociology 57 (2016) 1, 169; Ayelet Shachar, Citizenship for Sale?, in: Ayelet Shachar et al. (eds.), The Oxford Handbook of Citizenship (2017), 789. 5 T. H. Marshall, Citizenship and Social Class (1950), 10.

Citizenship and the claiming of rights   45 element refers to liberties such as free speech, freedom of religion and the state’s non-­interference with a person’s physical integrity. The political element means the right to participate in the exercise of political power. The social element refers to the range of social, economic and cultural rights. Marshall describes how these rights grew successively regarding the content and the scope of rights-­holder, from civil to political to social rights. It is important to note, however, that these elements do not simply add up, but interdepend. The political element of citizenship consists in rights to participation, yet political processes are at the basis of all rights. Not only do political processes found rights, but also there is the possibility to actually assert rights necessary for rights to be effective. In that sense, political struggles and political visibility depend on negative liberties and social rights. While the elements are intertwined, citizenship refers to more than a collection of rights: it references the status as a political member who has an active part in the affairs of the community. Although citizenship status includes a range of rights, the recognition of political membership is central to citizenship. Inherent to citizenship is also the idea of active political membership. Citizenship status enables political participation, yet it is the activity of political participation that fills citizenship with content. Citizenship is in that sense more than a legal status. Moreover, postcolonial critiques have pointed out the limits and pitfalls of a conception of citizenship that solely revolves around the institutions of representative democracy.6 Such an understanding takes one specific form of political life to represent the whole. Viewing citizenship as an institutionalized status with the right to vote at the center tends to reduce politics to the occasional participation in public affairs.7 James Tully opposes such understanding with what he calls “diverse citizenship,”8 referring not to a granted status alone but also to “negotiated practices in which one becomes a citizen through participation.”9 This critique is valuable as it underlines that citizenship can take different legal forms, yet foremost that political membership is always more than its institutionalized parts. Institutionalized channels enable collective decision-­making, but they do not substitute the role of persons acting together beyond institutionalized forms. This leads to a picture of citizenship as a gradual rather than a categorical concept. In such a gradual conception, legal citizenship status is distinguished from political membership more broadly. How one chooses to apply the term “citizenship” in this spectrum is ultimately a question of definition. In legal scholarship, it is usual to employ the term in the sense of citizenship status; in

6 Walter Mignolo, The Many Faces of Cosmo-polis: Border Thinking and Critical Cosmopolitanism, Public Culture 12 (2000) 3, 721 (723); James Tully, On Global Citizenship (2014), 11. 7 Tully, op. cit., 13. 8 Tully, op. cit., 9. 9 Tully, op. cit., 9.

46   Democracy’s edges social sciences or political theory, citizenship is often used with a wider meaning. The present inquiry looks at the margins of, and conditions of access to, citizenship. It cannot limit the view to the already secured legal status and employs citizenship in a broad sense, as a gradual concept with the legal status of citizenship at the center. Since refugees lack formal membership in the state that they seek refuge in and typically do not benefit from the membership in their state of origin, their access to political voice concerns the margins of political membership and the way the law regulates these margins. The aim is to shed light on the grades and grey zones without losing sight of the significance of legal rules. It is the concept of citizenship that constitutes the focal point in legal regulation. A gradual conception of citizenship allows seeing that there is not one clear line between the inside and the outside of a political community. Political inclusion and exclusion do not form a stark dichotomy, as Linda Bosniak writes: neither alienage nor the position of rights-­bearing citizens refer to a uniform situation or monolithic group.10 The access to political voice and visibility varies between aliens who are lawfully or unlawfully present, as well as along gender differences, national, racial and class lines.11 In turn, the access to political voice and visibility among formally enfranchised citizens equally varies. While citizenship is not confined to a status, it involves a component of recognition by others. This link to a surrounding structure is necessary at least when viewing citizenship as a field of justice claims. If citizenship were understood as political activity without any link to the way the community distributes space for political action and visibility, it would be impossible to speak about it in terms of justice. Citizenship status and institutionalized forms of political participation build on prior assumptions why someone should be a relevant political actor and have a voice. These assumptions are shaped through practices in which conceptions of political equality are confirmed or challenged. Emancipatory struggles in history, regarding equality across axes of class, race, or gender, illustrate the transformability of institutionalized citizenship, and the role that political practices of the not-­yet enfranchised thereby play.12 Including in the concept of citizenship various grades of political participation therefore does not suggest that claims to formal recognition were less relevant. Citizenship status determines political power to an important extent. The formalized rights not only play a role in the concrete instances of decision-­ making, but also shape the public debate and its scope of inclusion.13 The right to vote not only grants a person the formal electoral voice, but also prompts the attention of political parties and elected representatives to their interests and

10 Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (2008), 10, 29. 11 Ibid., 10. 12 Étienne Balibar, Citizenship (2015), 131; Jürgen Habermas, Between Facts and Norms (1996), 77; Jacques Rancière, Disagreement: Politics and Philosophy (1999), 29. 13 Habermas, op. cit., 329.

Citizenship and the claiming of rights   47 concerns. Contrariwise, the lack of a formalized political voice often results in a disregard towards even the most basic rights of persons. Political practices at the margins of democracy are directed towards the recognition as relevant political actors. They might consist in claiming specific rights or in raising awareness about an otherwise neglected problem, yet they also contest the distribution of political voice and visibility as such. From the access to minimal political voice to full membership, citizenship is a field of normative claims and contentions. The role of law for citizenship thereby reaches far beyond the legal status of citizenship. That political activities take place outside institutionalized forms does not mean that they are not influenced by legal rules. Law can impede persons from acting together or increase the burden for doing so. Examining the ways in which law governs the margins of democracy, one question is how law not only specifically foresees but also indirectly impacts opportunities to engage in political participation. Chapter 6 will pursue this question with a view to the situation of refugees, asking to what extent non-­institutional forms of political influence are open to them and how law influences their access to these forms.

Territory and the place of citizenship What is the relationship of citizenship and territory? This question is significant to understand how regimes of citizenship impact matters of migration control, and how migration regimes can become object of political activities. In that connection, the developed account of citizenship as not a matter of black and white, of a clear inside and outside, matters. This said, there is a certain circularity in the interdependence of law and politics regarding who belongs to the citizenry: the rules about access to membership are largely determined by those already members of the political community. This circularity is, however, not a closed one. With citizenship involving a range of forms and practices, which are conditioned but not conclusively determined by law, it is possible to question and change the boundaries and scales of political rights. Employing a too simple picture of democratic inclusion and exclusion would block the observations of how boundaries are negotiated and the role that law thereby plays. While the edges of citizenship are under constant negotiation, territory is a key orientation point of political membership. Even in a gradual conception of citizenship, territory remains a determinant for where the limits and margins of citizenship run. Political rights alongside citizenship status are granted in relation to territorial presence, for instance resident voting rights. The territorial democratic state is oriented at a certain correspondence between territory and citizenship. However, the picture gets more complicated in practice: first, citizenship and nationality must be distinguished as legal status. Second, the rules of citizenship by birth and naturalization reflect how states construct the relationship of territorial presence and political membership differently. The terms citizenship and nationality are often used interchangeably. In law, they are regarded as the outward- and the inward-­looking expression of an

48   Democracy’s edges i­ndividual’s belonging to a state.14 Nationality denotes an individual’s affiliation with a state for matters of international law; citizenship describes the relationship for the purpose of domestic law. While the two sides often correspond, there are cases in which they do not. One can be a citizen under law without being a national: one example is EU citizenship, which explicitly detaches citizenship from nationality.15 Vice versa, a person can be a national without being a citizen: for instance, US law conveys nationality but not citizenship to persons born on the territory of outlying possessions of the United States,16 which are American Samoa and Swains Island. Those cases illustrate how the legal concepts of citizenship and nationality have different characteristics. They both describe the relationship between an individual and a community. Nationality refers to the legal belonging of a person to a state; it can in other contexts also denote the belonging to an ethnic or cultural community, for instance where law specifies rights of “national minorities.”17 Citizenship, by contrast, expresses a certain kind of membership in a polity, it points to some form of political recognition and rights to participation. States have different regimes for the allocation of citizenship by birth and for the criteria for naturalization. The regimes of how states allocate citizenship status range between the poles of ius soli and ius sanguinis. The former means an allocation based on birth on the state territory; the latter confers citizenship to a newborn based on the parents’ citizenship. These different traditions shape the composition of a state’s community and reflect different conceptions of membership.18 Yaffa Zilbershats classifies these regimes as establishing the link between a person and a community either with regard to the past or with regard to the presence and future: a ius sanguinis regime looks mainly at the past, a ius soli regime reflects a link in the presence. While a ius soli regime reflects a membership directly based on the territorial link, the ius sanguinis regime views the political community as not primarily determined by co-­presence on the territory but through decent. In the last decades in particular, there is a marked convergence of the two models across the regimes in different states.19 Beside criteria of citizenship allocation by birth, rules about naturalization build on further criteria such as the duration of presence, the identification with

14 Yaffa Zilbershats, The Human Right to Citizenship (2002), 4; Alice Edwards, The Meaning of Nationality in International Law in an Era of Human Rights, in: Alice Edwards and Laura van  Waas (eds.), Nationality and Statelessness under International Law (2014), 11 (13). 15 Article 20 (1) Treaty on the Functioning of the European Union (TFEU). 16 US 1952 Immigration and Nationality Act, Sec. 308. [8 U.S.C. 1408]. 17 E.g. UN GA, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, A/RES/47/135, December 18, 1992. 18 Zilbershats, op. cit., 71. 19 T. Alexander Aleinikoff/Douglas Klusmeyer, Citizenship Policies for an Age of Migration (2002), 7.

Citizenship and the claiming of rights   49 the community, and the knowledge of its language, history and culture.20 Whereas all these criteria refer to some factual link between the person and the community, they can be chosen and weighted differently. The shifts and adjustments in regulation also reflect the influence of international rules. For a long time, the regulation of nationality and citizenship was considered part of the domaine réservé of a state, in which no outside entity could interfere. While the allocation of citizenship status a sovereign decision of each state and states have a broad discretion therein, international law contains some provisions on the matter today.21 Citizenship and nationality are linked in what Étienne Balibar calls the “founding equation of the modern republican state.”22 The vision of the territorial state is that territory delimitates the exercise of jurisdiction over persons. Although nationality was introduced much later as a legal status, the territorial state created the idea of persons belonging to a certain territorially defined polity. The vision of the democratic state, in turn, was that these persons belonging to the state and subject to its jurisdiction also determine its politics. What is mostly denoted with citizenship today corresponds to this idea that the subjects of governance are at the same time its authors.23 The political membership in a state as a democratic membership thus emerged historically within the territorial state. The link between the democratic and the territorial form is thereby not logically necessary, yet also not entirely contingent. Territory as the reference point of legal and political equality reflects an orientation at the basic co-­presence of persons: those who share a place thereby recognize each other as equals. First, territory demarcates where the state exercises jurisdiction and persons are subjects to its governance. Political rights respond to this situation of being subject to state power. Second, the territorial framing reflects an orientation of politics at the co-­presence of persons, as the basis of an acting together in public. Recent decades have brought about fundamental transformations in how political activities relate to territory. In times of globalization, political questions increasingly transcend one state. People’s daily lives and life opportunities are in many ways influences by factors that escape the control of a single state. This concerns the availability of goods that depends on international trade and the provision of services that are transnational. People are linked across states in their reliance on natural resources, and they are linked through the effects of environmental pollution and climate change. Moreover, new means of communication and transport have altered perspectives on belonging and politics. To

20 Cf. Section 316 of the US 1952 Immigration and Nationality Act [8 U.S.C. 1427] or § 10 para. 1 of the German Nationality Law. 21 E.g. Article 24 of the International Covenant on Civil and Political Rights (ICCPR); Convention on the Reduction of Statelessness, August 30, 1961, United Nations Treaty Series, Vol. 989, 175. 22 Balibar, op. cit., 34. 23 Habermas, op. cit., 33.

50   Democracy’s edges remain connected to a place despite physical absence has become easier. The Internet and various digital modes of communication have increased the connections of persons across distance and brought about unprecedented forms of political coordination. Decentralized modes of reporting allow drawing attention to local developments, and thereby often creates political pressure. Communications across distance inform the processes in which political opinions are formed, and social networks have intensified the collective nature of these communications. What do these transnational conditions of politics mean for citizenship? One way of looking at them is to ask about the potential for a new level on which politics take place, such as a transnational civil society. In addition, one can describe how the transnational links transform politics within each state. In that sense, Saskia Sassen suggests thinking about the alterations as a “denationalized citizenship,” stressing that modes of citizenship have changed even where they remain centered in the state.24 Political practices do not necessarily change their location, yet the frame of reference becomes transnational or global. The activities of international and transnational institutions have become an object of political concern and action, and political movements increasingly take place in close coordination between different places. In all this, territory and physical location remain essential for citizenship. While the interconnectedness of political practices transcends the state’s hold on politics, it does not overcome the significance of territorial presence for political power. The reference point of political power is, at its foundation, the physical safety and integrity of persons. This physical well-­being might be affected by transnational conditions, but it cannot escape the local conditions. Any transnational mode of political belonging cannot replace the necessity to confront the political governance that controls this immediate well-­being. The potential of digital modes of connection and of political action is worth exploring, but one should be cautious to overestimate its promise for overcoming political exclusion. So far, citizenship outside state institutions and procedures adds to the avenues of political voice and influence but remains of minor importance in comparison to state citizenship. Despite the emergence of new forms, the significance of territory for politics is not vanishing. Yet the diversification of citizenship includes forms that take place regardless of physical location, and it is a task for critical legal analysis to describe how law enables or hinders these forms. Some form of political voice at the place of one’s permanent physical location is important. Would not rights guarantees be sufficient to safeguard the basic physical integrity of a person? This is a question that the following section pursues through a discussion of the “right to have rights,” which addresses the dependence of rights on political voice. Citizenship status forms the key junction of legitimate law and politics, as a basis for the democratic creation of laws

24 Saskia Sassen, Globalization or Denationalization?, Review of International Political Economy 10 (2003) 1, 7.

Citizenship and the claiming of rights   51 and legally regulated modes of politics. Yet this mutual relationship of law and politics is visible not only in the legally recognized citizenship but also in the very outer edges of law and politics.

The “right to have rights” at the outer junction of law and politics Seeking to understand the specific situation of precarity that refugees often face leads to the outer edges of law and politics. This precarity is what Hannah Arendt famously described as a condition of rightlessness, a situation in which not the lack or violation of specific rights is at stake but a position “outside the pale of the law.”25 Arendt developed these reflections in her book Origins of Totalitarianism from 1951. At the center stands her formulation of the “right to have rights.” This expression and Arendt’s corresponding thought have become a key reference point in legal and political theory in recent years, and in refugee law scholarship. In one of the seminal cases concerning refugee protection before the European Court of Human Rights, the case Hirsi Jamaa et al. v. Italy, Judge Paulo Pinto de Albuquerque begins his concurring opinion with a reference to Hannah Arendt, reframing the questions of the case as the question “how Europe should recognize that refugees have ‘the right to have rights.’ ”26 That career of the “right to have rights” in reception is in itself remarkable. While the book was published in 1951, it was not until the 1990s that the respective chapter and the notion of the “right to have rights” started to become prominent.27 This can be seen as part of a generally growing attention to Hannah Arendt’s work over the last two decades,28 but it also reflects that the expression provided an anchor point for certain structural questions that gained pertinence. A central aspect therein is what Ayten Gündoğdu refers to in her book Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants from 2015: What does it mean to be rightless in an age of human right treaties and an omnipresence of rights vocabulary in international discourse? This question of rightlessness in the face of rights is central to

25 Hannah Arendt, The Origins of Totalitarianism (1951), 296. 26 Concurring Opinion of Judge Pinto de Albuquerque, European Court of Human Rights (ECtHR), Hirsi Jamaa and others v. Italy, Application no. 27765/09, Grand Chamber decision, February 23, 2012. 27 First references are contained in Richard H. King, Endings and Beginnings: Politics in Arendt’s Early Thought, Political Theory 12 (1984) 2, 235; T. Alexander Aleinikoff, Theories of Loss of Citizenship, Michigan Law Review 84 (1986) 7, 1471; Seyla Benhabib, Hannah Arendt and the Redemptive Power of Narrative, Social Research 57 (1990) 1,167. More explicit engagements can be found in Frank Michelman, Parsing “A Right to Have Rights,” Constellations 3 (1996) 2, 200; Jeffrey C. Isaac, A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights, The American Political Science Review 90 (1996) 1, 61. 28 In that context see for an influential account of Arendt’s work Seyla Benhabib, The Reluctant Modernism of Hannah Arendt (1996).

52   Democracy’s edges ­ nderstanding the current challenges of refugee protection. The question leads u to the margins of political and legal recognition, and the relation between the two. Universal rights are the starting point of these considerations. The idea of universal rights, or human rights, gained a prominent place in the political thinking with the French 1789 Declaration of the Rights of Man and of the Citizen. Alongside the emergence of the territorial and later democratic state developed the conception of individual rights. The new thinking about legitimacy positioned the individual at the center, as the social contract theories reflect. The emerging conception of the state builds on the universalist values of human equality and freedom, while at the same time creating institutions within territorial borders. The 1789 French Declaration is an expression of the universalism within this new order: it expresses an idea of rights that are not created within one state or agreed between states but flow from the fact of humanity as such. Such rights appear particularly significant for refugees. Given their position outside or at the margins of political communities, refugees do not benefit from citizen rights. A guarantee that is based on the fact of humanity seems promising in that connection. However, as Arendt observes, the idea of universal rights achieved very little when millions were persecuted during the Holocaust.29 Was it simply that the concept of human rights never had anything to do with rights in a solid, legal sense? Does it mean that, as John Hope Simpson wrote in 1938, a refugee cannot have rights “because as an alien he can have no complete rights against a sovereign state, and because legal rights originate from a sovereignty and as refugee he has no sovereign to endow him with or enforce his rights”?30 Such argument backtracks conceptions of universalist rights completely: rights, in that understanding, are legislated within the state, or they do not exist. Hannah Arendt’s critique of universal rights is more complex, which also makes it more insightful for present analyses in a world, in which so-­called human rights have become codified in human rights treaties. Arendt diagnoses the contrast between the language of universal rights and the experience of actual rightlessness in the chapter “The Perplexities of the Rights of Man”: “The Rights of Man,” she writes, “supposedly inalienable, proved to be unenforceable […] whenever people appeared who were no longer citizens of any sovereign state.”31 Yet her point is not simply that refugees had nobody who would enforce their rights. When human rights meant nothing in face of the worst atrocities, Arendt argues, the problem was not simply that they were not given enough respect or not enforced, but that they involved an inherent contradiction. Human rights refer to an abstract human independently from any

29 Arendt, op. cit., 269. 30 Sir John Hope Simpson, Refugees: Preliminary Report of a Survey (1938), 100. 31 Arendt, op. cit., 293.

Citizenship and the claiming of rights   53 political community, something that never existed.32 Humans always exist “in the plural,”33 Arendt’s emphasis on the nexus between rights and political community is more than a positivist understanding, which claims that rights are only rights when they are laid down in law. Rather, it is some form of membership in a political community that Arendt regards as prerequisite for rights. She writes: We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation. The trouble is that this calamity arose not from any lack of civilization, backwardness, or mere tyranny, but, on the contrary, that it could not be repaired, because there was no longer any “uncivilized” spot on earth, because whether we like it or not we have really started to live in One World. Only with a completely organized humanity could the loss of home and political status become identical with expulsion from humanity altogether.34 That Arendt introduces such a “right to have rights,” immediately after her critique of the concept of human rights, can be seen as surprising. What would this “right to have rights” be based on without facing the very problems that Arendt herself outlined with view to universal rights? Many scholars have offered an interpretation of the “right to have rights” in the last years and with a view to contemporary challenges. Seyla Benhabib reads the “right to have rights” to highlight the significance and potential of the sphere beyond the state for safeguarding rights and political membership.35 In her reading, the two instances of “right” have different reference points: the right to have rights relates to a moral right to membership, a claim that addresses humanity as a whole. The rights that one has a right to, by contrast, refer to juridical rights as granted in a community.36 The expression formulates, in that understanding, a task: “moral rights must become positive rights.”37 Benhabib in that regard points to the developments in international law and the existence of an international regime, “which decouples the right to have rights from one’s nationality status.”38 Indeed, international law has changed significantly since 1951 and knows legal guarantees that exists independently from state legislations. In 1948, the

32 Arendt, op. cit., 291. 33 Hannah Arendt, The Human Condition (1958), 7. 34 Arendt, The Origins of Totalitarianism, 296. 35 Benhabib, The Rights of Others (2004), 56. 36 Ibid. 37 James D. Ingram, What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights, The American Political Science Review 102 (2008) 4, 401 (403). 38 Benhabib, The Rights of Others, 68.

54   Democracy’s edges UN General Assembly adopted the Universal Declaration of Human Rights. This legally non-­binding document was followed in 1966 by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both binding. Moreover, regional human rights treaties were passed such as the European Convention on Human Rights (ECHR) in 1950, the American Convention on Human Rights (ACHR) in 1969, and the African Charter on Human and Peoples’ Rights (ACHPR) in 1981. Courts were created that interpret these treaties and rule on violations. Overall, international human rights law has seen an enormous development over the last 70 years. These rights guarantees are of primary importance for migrants and refugees. The rights they lay down apply regardless of citizenship; they protect persons in fundamental positions such as life, physical liberty and integrity, freedom of religion and of speech. On the one hand, their importance in the field of refugee protection is confirmed by the influence of human rights courts. Human rights law today forms a second pillar for the international legal protection of refugees beside the GRC and the Protocol. At the same time, the situation of refugees oftentimes stands in drastic contrast to the promise of universal rights. When persons have no escape and no state is legally responsible for them, their situation can hardly be called anything else but “rightless.”39 There are several factors why rights remain precarious for refugees. The first is the very scope of rights guarantees. Reaching the state territory is usually the prerequisite for refugees to access protection. At the same time, human rights treaties oblige states based on the criterion of jurisdiction, which is at the outset territorial. In exceptional cases, jurisdiction might extend extraterritorially, when a state exercises “effective control” over persons.40 This effective control has mostly been interpreted as physical control.41 This means a threshold that is beyond legal control for those seeking protection: states retain a margin for practices that hinder persons from reaching the territory without violating human rights provisions, especially where sea borders are concerned.42 A second

39 Cf. as an illustration of such situation the Opinion of Advocate General M. Paolo Mengozzi, Court of Justice of the European Union (CJEU), C-638/16 (X and X v. Belgium), delivered on February 7, 2017. 40 European Court of Human Rights (ECtHR), Bankovic and others v. Belgium and others, Application no. 52207/99, Grand Chamber Decision as to the admissibility, December 12, 2001, para. 71; Vassilis P. Tzevelekos, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, Michigan Journal of International Law 36 (2014) 1, 129. 41 European Court of Human Rights (ECtHR), Hirsi Jamaa and others v. Italy, Application no. 27765/09, Grand Chamber decision, February 23, 2012, para 81; cf. also Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls, Berkeley Journal of International Law 34 (2016) 1, 17. 42 Itamar Mann, Maritime Legal Black Holes: Migration and Rightlessness in International Law, European Journal of International Law 29 (2018) 2, 347.

Citizenship and the claiming of rights   55 aspect why rights remain precarious for refugees is the practical difficulty for persons to seek legal recourse from physical distance. Human rights guarantees, even where they formally exist, are often of no avail to those subjected to policies at the border. Further factors could be enumerated, such as the social and financial precarity that make legal action difficult, or the fear of negative repercussions for one’s asylum claim. These are diagnoses of the limits of legal rights, but they leave unanswered the question what a “right to have rights” could consist in. When following Benhabib’s interpretation: what connection exists between moral and positive legal rights, and what is the foundation of the moral rights? In this quest, the analysis by Alison Kesby is insightful. She explores the expression of the “right to have rights” along two axes, the axis of place and the axis of the subject.43 Arendt speaks about the “place in the world” that is at stake with the loss of rights, whereby world for Arendt means not just the physical space but has a dimension of political being. To have a place in the world in that sense refers to being part of the world created through human action and shared by persons recognizing each other as political beings. The right to have rights, as Kesby suggests, is, first, the right to “a place in the world,” to be recognized in that shared world.44 What this recognition as fellow political being requires, Kesby subsequently explores along four aspects regarding the subject of rights: nationality, citizenship, humanity and politics. The right to nationality can be seen as a dimension of the “right to have rights”: since nationality is the most stable guarantee of rights, the rules of allocation are an important concern and, as seen above, subject to certain minimal international rules. In the case of refugees, the right to nationality does not dissolve the problem of rightlessness. Similarly, citizenship as a formal status is significant for rights but not a way out of the dilemma how to guarantee the “right to have rights.” Belonging to humanity, on the other end, does not achieve anything as such. The reference to humanity in the context of rights, as Kesby argues, is part of a contestation rather than a guarantee.45 The insight that the “right to have rights” offers lies indeed in this moment of contestation and in the relationship of law and politics this expresses. The right to have rights is not yet a stable right but a right in the making. This does not make it a mere fiction, rather it reminds us that rights are always unstable. So-­called universal rights exist as legal guarantees, with significant effects and with limits. If, however, rights are believed to exist universally simply based on an insight about humanity, or because they are referenced as such in a declaration, this can become a dangerous chimera because it conceals the actual voids in legal protection. This does not discredit the language of human rights and

43 Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (2012), 6. 44 Ibid., 13. 45 Ibid., 117.

56   Democracy’s edges universalism: where such universalism is part of a political discourse and renewed commitments to safeguard rights, it is not concealing but productive. Having located the “right to have rights” in this aspect of contestation and commitments to rights, it is clear that the expression draws together basic conditions of law and of politics. Having a place in the world, being recognized in a shared world in the Arendtian sense relates to a minimum of political recognition. To have rights, before any specification of which rights, points to a minimum of legal recognition. Can there be a safeguarding of the “right to have rights”? What happens in the instances, in which such right is claimed or denied? Jacques Rancière speaks of the “right of those who have not the rights that they have and have the right that they have not.”46 His expression points to the dynamic of persons claiming rights they are not yet recognized to have, or the performative contradiction of persons acting as subjects of rights they are not yet seen as subjects of.47 Whereas Rancière emphasizes the part of those claiming rights, Judith Butler and Ayten Gündoğdu in their respective engaging with Arendt draw attention to the part of those recognizing others as fellow humans and rights-­bearer. As Arendt writes in a later paragraph: Our political life rests on the assumption that we can produce equality through organization, because man can act in and change and build a common world, together with his equals and only with his equals.48 The right to have rights thus does not form any right that would precede or overarch the political order, but a right that humans need to declare to each other, thereby constantly adapting and reconsidering the reach of political equality. Butler and Gündoğdu thereby highlight the form of Arendt’s writing itself. Instead of ending with the perplexities of human rights, Arendt turns to the unexpected expression of the “right to have rights,” which in that sense takes the form of a declaration.49 A declaration is an instance of performative politics: in declaring rights, people bring about rights; they are not based on any pre-­ political existence but the outcome of collective political action and mutual recognition. Gündoğdu describes the declaration as a “revolutionary speech act,” in contrast to forms such as a bill or a petition, which rely on the idea of justification and refer to an external power.50

46 Jacques Rancière, Who is the Subject of the Rights of Man?, South Atlantic Quarterly 103 (2004) 2/3, 297 (302). 47 Rancière, Disagreement, 303. 48 Arendt, The Origins of Totalitarianism, 301; Hannah Arendt, On Revolution (1963), 132. 49 Judith Butler/Gayatri Chakravorty Spivak, Who Sings the Nation-State? Language, Politics, Belonging (2007), 44; Ayten Gündoğdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants (2015), 171. 50 Gündoğdu, op. cit., 172.

Citizenship and the claiming of rights   57 Similarly, Étienne Balibar reads Arendt with a focus on the omnipresence of politics in constant interrelation with, rather than detachment from, law.51 Arendt’s critique of human rights, in Balibar’s reading, does not object to the idea of human rights as such. Rather it stresses the fact that any account of rights must be examined with regard to the political situation of the respective persons. The right to have rights in that interpretation is neither outside nor inside the legal order.52 Rights are always “between persons,” as the Latin notion of lex illustrates, which means law but also bond.53 This explains why Arendt’s reflections retain such significance despite the radically changed legal framework. The first insight to be drawn from Arendt and the contemporary interpretations is the dependence of rights on a minimum of political recognition. Arendt offers an idea on what this minimal recognition requires when she writes that the deprivation of rights was manifested first and above all in the “deprivation of a place in the world which makes opinions significant and actions effective.” Rights ultimately depend on some political visibility and voice, the chance to be heard and to yield effects with one’s actions. The second insight to be drawn is the non-­hierarchical relationship between law and politics when it comes to guaranteeing rights.54 On the one hand, legal documents alone are not sufficient for safeguarding the rights of refugees, who oftentimes cannot benefit from rights they formally have or who are left outside the boundaries of state responsibilities for those rights. On the other hand, politics of rights are not void of law or indifferent to law. In the claiming and founding of rights, existing ideas about a better law or a better interpretation of laws find their expression.55 Whereas full citizenship marks the junction of law and politics at the center, the “right to have rights” refers to the outer edges of law and politics, which equally interdepend. These margins are crucial for the rights of refugees. As the individual who is considered to have a legitimate claim against the state, but who is structurally excluded from formal decision-­making within that state, the refugee is at the brink of legal recognition and political visibility. The degrees of recognition and visibility thereby vary. The conditions of accessing and negotiating citizenship, as well as the degree to which citizenship is bound to territory are vital in the context of refugees. Foremost, refugee rights depend on the possibilities to claim rights and challenge boundaries of rights. The legal

51 Étienne Balibar, (De)Constructing the Human as Human Institution: A Reflection of the Coherence of Hannah Arendt’s Practical Philosophy, Social Research 74 (2007) 3, 731, Balibar, Citizenship, 65. 52 Charles Barbour, Between Politics and Law: Hannah Arendt and the Subject of Rights, in: Marco Goldoni/Christopher McCorkindale (eds.), Hannah Arendt and the Law, 315. 53 Ibid., 311. 54 Christian Volk, Arendtian Constitutionalism. Law, Politics and the Order of Freedom (2015), 210. 55 Robert Cover, Nomos and Narrative, Harvard Law Review 97 (1983) 1, 47.

58   Democracy’s edges c­ onditions of those political contestations will be explored with view to specific situations in the third part of the book.

Bibliography Aleinikoff, T. A., Theories of Loss of Citizenship, Michigan Law Review 84 (1986) 7, 1471. Aleinikoff, T. A./Klusmeyer, D., Citizenship Policies for an Age of Migration (2002, Washington: Brookings Institution Press). Arendt, H., The Origins of Totalitarianism (1951, New York: Schocken Books). Arendt, H., The Human Condition (1958, Chicago: University of Chicago Press). Arendt, H., On Revolution (1963, New York: The Viking Press). Balibar, É., Citizenship (2015, Cambridge: Polity Press). Balibar, É. (De)Constructing the Human as Human Institution: A Reflection of the Coherence of Hannah Arendt’s Practical Philosophy, Social Research 74 (2007) 3, 727. Barbour, C., Between Politics and Law: Hannah Arendt and the Subject of Rights, in: Marco Goldoni/Christopher McCorkindale (eds.), Hannah Arendt and the Law (Oxford: Hart Publishing), 307. Benhabib, S., Hannah Arendt and the Redemptive Power of Narrative, Social Research 57 (1990) 1, 167. Benhabib, S., The Reluctant Modernism of Hannah Arendt (1996, London: Sage Publications). Benhabib, S., The Rights of Others (2004, Cambridge: Cambridge University Press). Bosniak, L., The Citizen and the Alien: Dilemmas of Contemporary Membership (2008, Princeton: Princeton University Press). Butler, J., Notes Toward a Performative Theory of Assembly (2015, Cambridge: Harvard University Press). Butler, J./Spivak, G. C., Who Sings the Nation-­State? Language, Politics, Belonging (2007, Kalkutta: Seagull Books). Cover, R. M., Nomos and Narrative, Harvard Law Review 97 (1983) 1, 4. Edwards, A., The Meaning of Nationality in International Law in an Era of Human Rights, in: Alice Edwards and Laura van Waas (eds.), Nationality and Statelessness under International Law (2014, Cambridge: Cambridge University Press), 11. Gündoğdu, A., Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants (2015, Oxford: Oxford University Press). Habermas, J., Between Facts and Norms (1996, Cambridge: The MIT Press). Ingram, J. D., What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights, The American Political Science Review 102 (2008) 4, 401. Ingram, J. D., Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (2013, New York: Columbia University Press). Isaac, J. C., A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights, The American Political Science Review 90 (1996) 1, 61. Kesby, A., The Right to Have Rights: Citizenship, Humanity, and International Law (2012, Oxford: Oxford University Press). King, R. H. Endings and Beginnings: Politics in Arendt’s Early Thought, Political Theory 12 (1984) 2, 235. Mann, I., Maritime Legal Black Holes: Migration and Rightlessness in International Law, European Journal of International Law 29 (2018) 2, 347.

Citizenship and the claiming of rights   59 Marshall, T. H., Citizenship and Social Class and Other Essays (1950, Cambridge: Cambridge University Press). Michelman, S., Parsing “A Right to Have Rights,” Constellations 3 (1996) 2, 200, doi: 10.1111/j.1467-8675.1996.tb00054.x. Mignolo, W., The Many Faces of Cosmo-­polis: Border Thinking and Critical Cosmopolitanism, Public Culture 12 (2000) 3, 721. Paz, M., Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls, Berkeley Journal of International Law 34 (2016) 1, 1, doi: 10.15779/ Z380P11. Rancière, J., Disagreement: Politics and Philosophy (1999, Minneapolis: University of Minnesota Press). Rancière, J., Who Is the Subject of the Rights of Man?, South Atlantic Quarterly 103 (2004) 2/3, 297. Sassen, S., Towards Post-­National and Denationalized Citizenship, in: Engin F. Isin/ Bryan S. Turner (eds.), Handbook of Citizenship Studies (2002, London: Sage Publications), 277. Sassen, S., Globalization or Denationalization?, Review of International Political Economy 10 (2003) 1, 7. Shachar, A., Citizenship for Sale?, in: Ayelet Shachar et al. (eds.), The Oxford Handbook of Citizenship (2017, Oxford: Oxford University Press), 789. Simpson, J. H., Refugees: Preliminary Report of a Survey (1938, London: Royal Institute of International Affairs). Tanasoca, A., Citizenship for Sale: Neomedieval, not Just Neoliberal?, European Journal of Sociology 57 (2016) 1, 169, doi: 10.1017/S0003975616000059. Tully, J., On Global Citizenship (2014, London: Bloomsbury). Tzevelekos, V. P., Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, Michigan Journal of International Law 36 (2014) 1, 129. Volk, C., Arendtian Constitutionalism. Law, Politics and the Order of Freedom (2015, Oxford: Hart Publishing). Zilbershats, Y., The Human Right to Citizenship (2002, Leiden: Brill).

4 Democracy between the need for institutions and demands of inclusion

The evolving meanings of democracy In the modern territorial state, democracy is what makes law and government legitimate. This chapter will explore this principle of democracy with a view to its margins: its relation to territorial borders, and its challenges in times of globalization. The inquiry is guided by the question that the refugee’s situation poses for democracy. As the first chapter has developed, the refugee concept occupies a specific position in the framework of the modern territorial state. The refugee concept corresponds to the universalist underpinnings of the modern state and counterbalances the territorial delimitations of rights and mutual obligations, but it is also an example for the potential harshness of these delimitations. As this border figure, the refugee raises questions for democracy. How can a democratic system account for refugees? Does anything follow from the principle of democracy for the rights of refugees? And how does the position of the refugee illuminate the meaning of democracy? Much like citizenship, democracy is a contested conceptual field. Democracy has a long history as a term, and its meaning shifted and developed over time. The term is a composition of demos (population, people, administrative unity) and kratos (rule, domination, governance) and on that basis can be translated as the “rule of the people.” The first mention of the concept is recorded from Herodot, who listed democracy besides monarchy and oligarchy as a form of political constitution.1 Plato and Aristotle both mention democracy when discussing which part of the population should hold the power in a community. Plato defines democracy as the rule of the multitude,2 Aristotle as the rule of the free.3 Polybios classified democracy as one of the benign forms of governance in

1 Günther Bien, Demokratie I, in: Joachim Ritter (ed.), Historisches Wörterbuch der Philosophie (1972), Band 2, 50. 2 Plato, Statesman, Section 291 d, in: Plato in Twelve Volumes, translated by Harold N. Fowler, Vol. 12 (1921). 3 “[I]t is a democracy when those who are free are in the majority and have sovereignty over the government,” Aristotle, Politics, Section 1290 b, in: Aristotle in 23 Volumes, translated by H. Rackham, Vol. 21 (1944).

Demands of inclusion   61 his doctrine of anacyclosis, in which he assumes that each form of governance tends to degenerate and be replaced by another form.4 While the concept of democracy in its origins in Ancient Greece referred to a form of direct government in city-­states, the context of its interpretation from the late eighteenth century onwards was larger societies. With Enlightenment, considerations about what makes law and government legitimate built on the basic values of human equality and freedom. Unlike the thinking about politics in Ancient Greece, which focused on the community as a whole and its best form of government, the reflections in modernity began from individual autonomy. Democracy under these circumstances became the political idea of the time.5 Struggles against oppression were increasingly connected with the claim for political participation. In the French and American Revolutions, the idea of government based on political equality received practical force. Alexis de Tocqueville’s Democracy in America is one work from the time that reflects the view that democracy is not just one possible form of constitution but the only acceptable form.6 It was disputed, however, whether a representative system could be reconciled with democracy. Jean-­Jacques Rousseau rejected this, holding that only direct decisions by all citizens should be called democratic, while elected representatives should be considered commissioners or agents.7 The question of representation remained object of extensive debate.8 Since large societies made it impossible or highly impractical to let every citizen participate in decision-­ making directly, representation seemed a necessary and viable mechanism. Along these lines, demands to participate in the government as raised in the French and American Revolution were already directed at representation in legislative bodies.9 Democracy increasingly meant access to voting and representation in a parliament.

4 Polybius opposes monarchy, aristocracy, and democracy as benign forms to tyranny, oligarchy, and ochlocracy as malign forms of governance, cf. Polybius, Histories, Book 6, Chapter 4 (The Rotation of Polities), in: Histories. Polybius, translated by Evelyn S. Shuckburgh (1889, Reprint Bloomington 1962). 5 Hans Kelsen, Foundations of Democracy, in: Matthias Jestaedt/Oliver Lepsius (eds.), Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie (2006), 248 (250). 6 Alexis de Tocqueville, Democracy in America (1835/1840), translated and edited by Harvey C. Mansfield and Delba Winthrop (University of Chicago Press, 2nd ed. 2002), 53. Cf. also the formulation by Karl Marx that “democracy is the generic constitution,” and that “all forms of the state have democracy for their truth,” Karl Marx, Critique of Hegel’s Philosophy of Right (1843), translated and edited by Joseph O’Malley (Cambridge University Press, 1977), 25. 7 Jean-Jacques Rousseau, Du Contrat Social (1762), Book 3, Chapter 15: “La souveraineté ne peut être représentée.” 8 See for a contemporary account Hanna F. Pitkin, Representation and Democracy: Uneasy Alliance, Scandinavian Political Studies 27 (2004) 3, 335; Andreas Anter, Repräsentation und Demokratie, in: Pirmin Stekeler-Weithofer/Benno Zabel (eds.), Philosophie der Republik (2018), 67 (68). 9 Cf. Emmanuel Joseph Sieyès, Qu’est-ce que le Tiers-État? (1789, edition Flammarion 2018), 9.

62   Democracy’s edges In the nineteenth and twentieth centuries, democracy became a constitutional principle in many states. The form of democratic institutions that thereby evolved resembled each other across states, with some variations. Many of the new constitutions were mixed in nature, including provisions on general elections and the rights of an elected legislative, but retaining a monarch as executive power.10 At the beginning of the twentieth century, the debate revolved around an opposition of a “Western-­liberal” concept of democracy and a “socialist” one.11 One question in this opposition was the right balance between the claims of freedom and equality. From the question whether democracy was normatively desirable, the focus had shifted towards the interpretation what democracy meant. With democracy being increasingly included as a principle in constitutions,12 theoretical reflections concentrated on how the general idea could be translated into concrete procedures. This is illustrated in the work of Hans Kelsen who elaborates on the role of parliament, the majoritarian principle, and the selection of government.13 Kelsen also makes an increasingly common distinction between democracy as the “form of the state” and the content of laws.14 What follows from the “form” for the “content” in a democratic state, he captures in the formula that “the minority must always retain the possibility to become the majority.”15 Democracy was thus widely accepted as a principle. It was debated along two main axes: first, the opposition between direct participation and representation; second, between a focus on form and procedures and a focus on the substance of rules and material equality. These questions continued to shape democratic theories throughout the twentieth century. Joseph Schumpeter proposed understanding representative democracy not as mirroring actual governance by all citizens, but as something different: a sequential selection of the government.16 With this, he opposes what he calls the “classical doctrine of democracy,” Rousseau’s idea of a general will.17 While this classical doctrine viewed democracy as

10 Cf. for instance the Spanish Constitution of 1812. 11 Hans Maier, Demokratie II, in: Joachim Ritter (ed.), Historisches Wörterbuch der Philosophie (1972), Band 2, 54. Cf. also the chapter by Hans Kelsen dedicated to the “Soviet doctrine of democracy,” which he fiercely rejects, Hans Kelsen, Foundations of Democracy, in: Jestaedt/Lepsius (eds.), Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie (2006), 256. 12 Cf. today e.g. Article 20 para. 1, 2 of the German Basic Law; Articles 1 and 3 of the French Constitution; Article 1 para. 1, 2 of the Bulgarian constitution; Article 1 of the Brazilian Constitution, Articles 1–3 of the Chinese Constitution. 13 Hans Kelsen, Vom Wert und Wesen der Demokratie (1929). 14 Ibid., 98. 15 Ibid., 103. That this substantial requirement is minimal is shown by Kelsen’s later postulation that it cannot be an objective in itself to maintain democracy against the will of the majority, cf. Kelsen, Verteidigung der Demokratie (1937), in: Jestaedt/Lepsius (eds.), Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie (2006), 237. 16 Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (1943), 269. 17 Ibid., 250.

Demands of inclusion   63 a substantive claim and the procedures as following from it, Schumpeter ­suggests turning around this relationship and defining democracy in a procedural manner. Against a merely procedural understanding of democracy, several objections were raised. One concerns the complex prerequisites for political participation. While the right to vote and other procedural aspects are crucial, one cannot neglect the social and economic prerequisites for persons to be able to participate.18 Moreover, democracy consists in more than a competition of interests, it also involves the formation and exchange of opinions. A merely procedural approach conceals this aspect. It amounts to what Iris Marion Young criticizes as aggregative conception of democracy, which excludes from view all the processes that happen before the stage of decision-­making.19 First, participants in democratic processes do not enter with a fixed position, the chance for dialogue and debate is an essential aspect of democratic politics. Second, what makes a political process democratic is more than the rules of voting. What precedes elections and government formation is not only a preliminary element of democracy, it is an essential part of it. This field of public exchange is structured by law and requires attention as to how rules might advantage and disadvantage participants. Based on a shared understanding of democracy as a complex set of rules and structures that enable equal political influence, two main strands of democratic theory have dominated the debate in the last two decades: deliberative and discourse theoretical approaches on the one hand, and radical democratic approaches on the other. These two approaches have shaped the debate, which does not mean that there would not be intersections or positions that fall under neither of the two. The discourse theoretical approach, as developed in particular by Jürgen Habermas, focuses on the role of communication as the medium for forming opinions and norms.20 Language is entangled with claims for validity, and the democratic process consists in both the formal communication that includes government decisions and the manifold communication among citizens that maintain the formal procedures. From a discourse theoretical point of view, democracy draws on rules and presuppositions, which, however, are preliminary themselves and can become subject of discourses and reformulations.21 Habermas formulates a democratic theory, in which the possibility of exchange and agreement are central. Other deliberative approaches equally emphasize the role of exchange outside formal procedures.

18 Robert A. Dahl, On Democracy (1998), 145. 19 For the denomination Iris Marion Young, Inclusion and Democracy (2000), 19. Young defines aggregative theories as those that view “democracy as a process of aggregating the preferences of citizens in choosing publics officials and policies.” Cf. also James Bohman, From Demos to Demoi: Democracy across Borders, Ratio Juris 18 (2005) 3, 293. 20 Jürgen Habermas, Between Facts and Norms (1996). 21 Seyla Benhabib, Situating the Self (1992), 110, 111.

64   Democracy’s edges Radical democratic approaches are equally concerned with the underlying social structures and linguistic presuppositions of processes of communication and decision-­making. In contrast to discourse theory, they focus more on the exclusions and unequal power relations that remain even outside formal procedures. Many radical democratic perspectives question the possibility and even aim of agreement. Ernesto Laclau and Chantal Mouffe introduced the term “radical democracy” in 1985, along with their concept of hegemony to describe how every version of norms and institutions suppresses other possibilities.22 Against an essentialist view of social oppositions that marked many Marxist conceptions, Laclau and Mouffe view social groups as more open and dynamic. Nonetheless, they advance a view of society as necessarily antagonistic, where no pursuit of justice will be agreeable for all, rather every outlook on the world and every set of rules will be exclusionary and contestable.23 In summary, both discourse theoretical and radical democratic theories emphasize the significance of social conditions for the law, and both refuse the idea of one static order, viewing democracy as a project that looks different depending on the particular historical circumstances. The two approaches depart, however, in how they assess the value and possibility of consensus. While a discourse theoretical approach focuses on the conditions, under which people can temporarily agree on norms,24 a radical democratic perspective questions the possibility of equality in any discourse and therefore the validity of any consensus.25 This conflict and the respective insights of the two approaches will inform the following sections and will be taken up more specifically in the last section of the chapter, when turning to a conception based on Hannah Arendt’s thinking about politics.

The subject of democracy Democracy is today very widely endorsed as a principle. It is included in many state constitutions and although there are systems that do not claim to be democratic, there is no significant debate about whether democracy is the best form of government. Instead, the argument takes place on the level of democracy’s meaning and requirements. Among the many aspects thereof, one is the question who is the subject of democracy. Who belongs to the demos that is supposed to be the basis of all government? Does democracy involve any rules on who must be included in its processes, and if so which? This question of the “who” of democracy is the source of much confusion in democratic theory,

22 Ernesto Laclau/Chantal Mouffe, Hegemony and Socialist Strategy – Towards a Radical Democratic Politics (1985). 23 Cf. also for an overview Martin Breaugh et al. (eds.), Thinking Radical Democracy (2015). 24 Habermas, Between Facts and Norms (1996), 118. 25 Alain Badiou, The Democratic Emblem, in: Agamben et al. (eds.), Democracy in what state? (2011), 6.

Demands of inclusion   65 because it is dealt with from very different viewpoints. This has led to much talking past each other, while the diverging perspectives from political theory and from law, of more normative and more descriptive accounts, could actually benefit each other and contribute to a fuller picture. In early democratic theory, who forms the demos was a question that received relatively little attention. Writings on democracy laid the focus on its meaning and comparison to other forms of government. Democratic theory during Enlightenment developed within a social contract reasoning. The social contract theory all but omits the question of who belongs to the demos. The theory seeks to explain why law should be binding absent any metaphysical source. It suggests that the legitimacy and bindingness of law derives from a fictive first agreement of all to subject to a ruling authority. To avoid anarchy and violence, people prefer accepting a sovereign and its laws.26 The conception of a social contract is not bound to democracy but already proceeds from a viewpoint of individual autonomy. Yet this influential image also tends to omit the question who composes the people of the first fictive agreement. It creates a picture of society as a fictive whole, concealing that in practice society is neither fully inclusive on the inside nor neatly delimitated on the outside. When democracy was successively adopted as a constitutional principle, theoretical considerations about inclusion remained at the margin. While the claim for democracy was rooted in the values of equality and freedom, the debate was little concerned with how these values would be reconciled with the delimitation – and thereby exclusion – that seemed necessary for democratic institutions. At the basis of the new constitutions stood the claim that all men are equal and that therefore all power must emanate from the people.27 Whom this people actually comprised was a question debated with a view to women and minorities. Women were recognized as political equals only slowly in the nineteenth and twentieth centuries.28 Ethnic and religious minorities in many cases attained equal democratic rights only after strenuous battles. At all stages, political philosophers, while striving for an inclusive account of democracy, remained blind to exclusions deemed “natural” in their times.29 Within the system of representative democracy, the citizenry of the respective state was seen as the demos. The more democracy was identified with procedures, the less the question of inclusion seemed even one of democratic theory.30 In addition, a growing nationalism mixed up the idea of popular sovereignty with a conception of the people as a pre-­political entity. The distinction between

26 Cf. Thomas Hobbes, The Leviathan (1651; Penguin Classics edition 2017). 27 Cf. Article I, III, and VI of the 1789 Declaration of the Rights of Man and of the Citizen. 28 Francisco O. Ramirez/Yasemin Soysal/Suzanne Shanahan, The Changing Logic of Political Citizenship: Cross-National Acquisition of Women’s Suffrage Rights, 1890 to 1990, American Sociological Review 62 (1997) 5, 735. 29 Ronald A. Dahl, Democracy and its Critics (1989), 121. 30 However, some reflections about opening political rights to foreigners can be found in Hans Kelsen, Vom Wert und Wesen der Demokratie (1929), 18.

66   Democracy’s edges demos and ethnos at the root of the term democracy was blurred. The rule of the people was identified with the ruling of one particular people, whose boundaries of membership were supposedly clear. While it is one possible claim that a nation, however defined, should constitute the demos, the two concepts must not be conflated. The shape that the question of the demos took in the last century mirrors the particular political form of the territorial state. Democratic inclusion is today primarily a question about accessing state citizenship, which by extension is linked, though not at all identical, to the presence on the territory. Democratic rights do not begin at the border, but democratic citizenship is oriented at territory to some extent, and territorial presence forms the first step towards a potential political membership. It is for that reason that migration is such a contested topic – and that the case of refugees constitutes an insightful lens for examining conditions of democracy. In addition to the question of borders and boundaries of citizenship, it is also the diversification of government and law-­ making to realms above or across states that has led to new perspectives on the subject of democracy. When the scope of the demos is discussed today, there are two main perspectives: a thinking about the demos in a normative sense, thus in the sense of who should be included in collective decision-­making, and a thinking about the demos in a factual sense, as an existing group. The first perspective can be put under the header of institutions, whereas the second can be put under the header of inclusion. To distinguish the two perspectives is crucial not only to avoid misunderstandings, but also to allow a mutual communication and to arrive at a conception of democracy that combines them. A factual notion of the demos is employed by positivist conceptions that view democracy as a procedural principle or a form of the state. This often, though not necessarily, goes hand in hand with the normative view that the scope of the demos is a question outside democracy. In such an understanding, democracy concerns the procedures among an established group of persons, but it has nothing to say regarding the scope of and inclusion in that group. A factual notion of the demos has a descriptive value, and it might remain unchallenged as long as it is perceived as generally just. Yet it cannot be translated into a normatively satisfying conception: the claim that elections were “democratic” even if they are open to only a small fracture of the population goes against the foundations of democracy and against the understanding advanced in many popular movements for inclusion. Such conception detaches procedural requirements that were initially derived from basic principles of human equality from these very principles. Nonetheless, while it cannot be taken to represent the whole, a factual perspective forms an important aspect of democracy. On the other hand, a normative perspective asks what the claim to inclusion that is somewhat inherent in democracy exactly means. Most would agree that if only a small fracture of the population has access to the elections, the system is undemocratic. Yet what are, apart from extreme cases, the criteria of just inclusion? Much political theory and philosophy focuses on this question, discussing

Demands of inclusion   67 criteria such as affectedness and subjectedness. These perspectives have been spelled out in particular around the so-­called boundary problem. The following section will trace this debate before returning to a conception that unites a factual and a normative perspective on the demos.

Democracy and the problem of boundaries In recent years, the subject of democracy has been considered more explicitly in scholarship, foremost through an inquiry in the question of boundaries. First, prominent considerations of the boundary problem arose through an engagement with the social contract theory. The problem at the outset was formulated as the following: if one accepts democracy as the basic principle of legitimacy against which all acts of a community are measured, then the composition of the demos as well forms such an act that needs to be democratic. For decisions to count as democratic, they must have the right constituency deciding about them. Yet how can this constituency be determined for decisions about the composition of the demos? Imagining the initial consent as the basis of a political community – how was it decided who took part in this initial decision? The fiction of the social contract thus leads to the equally fictive question of who was allowed to consent to the formation of the community, and who was denied the possibility of becoming a particle. Moving away from this fiction, the problem remains: every delimitation of the polity that claims to be democratic faces the problem that those taking part in a decision about the demos had to be selected by a prior decision, which again would have to be democratic, but equally relies on a pre-­existing scope of persons. The attempt to base the delimitation of the demos on a democratic decision leads to an infinite regress.31 Frederick Whelan concluded that although the composition of the demos is essentially a question of democratic legitimacy, there could not be an answer by democratic theory.32 Established democratic procedures such as the majoritarian principle could not provide an answer to the problem, which is logically prior. At the same time, the idea to orient the scope of the demos on the question of who was affected by the decisions does not hold either, according to Whelan. For a functioning democracy, the demos had to be a stable constituency, the all-­affected principle by contrast would lead to a different demos each time.33 Here, the contrast between an institutional perspective of stability and a purely normative perspective of just inclusion is visible. These two aspects

31 Frederick G. Whelan, Prologue: Democratic Theory and the Boundary Problem, Nomos 25 (1983), 13 (14); Sofia Näsström, The Legitimacy of the People, Political Theory 35 (2007) 5, 624 (630); Jürgen Habermas, Constitutional Democracy – A Paradoxical Union of Contradictory Principles?, Political Theory 29 (2001) 6, 774. 32 Whelan, op. cit., 16. 33 Ibid., 19.

68   Democracy’s edges pervade the debate. Gustaf Arrhenius rejects Whelan’s conclusion, arguing the boundary problem could be resolved by drawing on the all-­affected principle.34 According to him, democracy as a method of decision-­making should be distinguished from democracy as a normative ideal. While a method of decision-­ making cannot make any statement regarding the boundaries of the demos, democracy as a normative ideal can. The ideal of non-­domination translates as the rule that all those affected by a decision should be members of the respective demos. This might be practically impossible to implement in all instances, yet the practical impossibility does not preclude, according to Arrhenius, that there is a valid theoretical answer as to how the demos should be composed.35 However, such neat separation of democracy as a method of decision-­making and democracy as a normative ideal is hard to uphold. The normative ideal of democracy includes the actual influence of collective decisions on one’s living conditions and environment. Vice versa, democracy as a mode of decision-­making cannot be detached from a just scope of people without turning the notion into an artificial and a-­historical concept. The aspects of inclusion and decision-­making internally relate to each other. Hans Agné seeks to resolve the paradox of democratic legitimation with recourse to a “global principle of democratic founding.”36 The whole of humanity should be regarded as relevant demos for question of boundary-­making.37 For decisions about the boundaries of a state, both those persons inside the envisaged state as well as those outside are entitled to participation, meaning that everybody who wants to be included should be included in the decision-­ making.38 Agné admits that this constitutes an ideal theory of democracy and cannot offer recommendations for procedures in a non-­ideal world.39 Like Arrhenius, Agné distinguishes different accounts of democracy, what he calls a contractualist versus a substantialist view. These distinctions reflect how democracy is both a description for existing structures of government and an abstract idea. While there is a place for purely descriptive accounts as well as abstract reflections, a full understanding of democracy must include both dimensions. Sofia Näsström offers a more dynamic account of the boundary problem, suggesting that the delimitation of the demos is not subject to a democratic decision in one moment, rather the people remains a site of perpetual contestation.40 In a similar way, Nancy Fraser suggests that what might be perceived as a vicious circle of democratic boundaries can actually become a “virtuous spiral” through

34 Gustaf Arrhenius, The Boundary Problem in Democratic Theory, in: Folke Tersman (ed.), Democracy Unbound: Basic Explorations (2005), 14 (23). 35 Ibid., 22. 36 Hans Agné, Why Democracy must be Global: Self-founding and Democratic Intervention, International Theory 2 (2010) 3, 381 (391). 37 Ibid., 389. 38 Ibid., 392. 39 Ibid., 384. 40 Näsström, op. cit., 630, 644.

Demands of inclusion   69 the openness of public deliberations.41 While these descriptions move the boundary question out of a theoretical stalemate, they are less giving a final answer than offering a gateway for a more specific formulation of the question. If “the people” as the subject of democracy remains a site of contestation – what are the conditions of this contestation? What are the conditions of public deliberations that are able to dynamically alter the scope of those included in democratic procedures? Seyla Benhabib offers an account of the boundary problem from a discourse theoretical perspective, which looks at these various levels of inclusion. Democracy involves, in her phrasing, an irreducible dilemma with regard to its boundaries, since every act of collective self-­determination at the same time forms an act of self-­constitution.42 Yet these acts of self-­determination and self-­ constitution should not be envisioned as uniform acts. The processes of democratic self-­determination take place on various levels and various places in parallel. These processes involve negotiations of criteria for equality and for determining a community of equals. Benhabib underlines that the various boundaries of formal procedures and of participation in discourses can themselves become subject of discourses and thereby be altered.43 In this understanding, the subject of democracy is always a preliminary one and constantly negotiated anew, while at the same time stabilized in institutions. Equally, the normative criteria thereby employed are objects of debate themselves. This last point is crucial as it situates the abstract philosophical discussion of the normative horizon of democracy within the practice of democratic politics.

Democratic institutions and demands of inclusion Which are the criteria along which inclusion is claimed and boundaries are renegotiated? References to such benchmarks can be found for instance in debates about a “democratic deficit” or a “misfit” between those involved in decision-­ making and those actually affected by the outcome of the decisions.44 In order to diagnose a deficit or a misfit, there needs to be a notion of democracy in opposition to the factual circumstances. Such normative horizon of democracy refers to the scope of persons who are considered as having to be entitled to participate.45 There are various proposals for describing this normative horizon.

41 Nancy Fraser, Scales of Justice (2009), 45. 42 Seyla Benhabib, The Rights of Others (2004), 45. 43 Seyla Benhabib, Situating the Self (1992), 110. 44 E.g. Eyal Benvenisti, Sovereigns as Trustees of Humanity, American Journal of International Law 107 (2013) 2, 295 (297). 45 In a similar manner, Francis Cheneval distinguishes two concepts of the demos, the “real” and the “hypothetical” demos, Francis Cheneval, The People in Deliberative Democracy, in: Samantha Besson/José Luis Martí (eds.), Deliberative Democracy and its Discontents (2006), 159 (166).

70   Democracy’s edges One regular reference point is the criterion of affectedness.46 Taking the autonomy of every individual as the normative starting point, it suggests that all rules and acts curtailing that autonomy must be approved by those affected by them. Roman law knew the principle quod omnes tangit ab omnibus approbari debet, “what affects everybody, must be approved by everybody.”47 The principle of affectedness thus adopts a very broad view on the scope of persons to be included. It also allows, however, to distinguish different degrees of affectedness and to deduce normative claims accordingly. Nonetheless, the principle of affectedness has been criticized for being too broad and watering down the scope of those entitled to justification.48 It is hard to draw a line of how close a causal link must be, otherwise everyone is affected by nearly everything, and the criterion not suitable for any useful distinction.49 Another criterion proposed instead is the one of subjectedness.50 This could either mean subjectedness as all persons to whom certain laws apply, or subjectedness in a sense of coercion. Arash Abizadeh refers to the latter, arguing that democracy “requires that the coercive exercise of political power be democratically justified to all those over whom it is exercised, that is, justification is owed to all those subject to state coercion.”51 This criterion is much narrower, as there are many laws that do not involve any coercion. Understanding subjectedness unrelated to coercion, by contrast, makes it dependent on the wording of the respective rules, which appears arbitrary. The same applies for the criterion of being addressed by a rule or a decision in a formal sense. Other benchmarks have been used in the debates or by courts. In a decision about limits to citizenship transferal to children born outside the country, the German Constitutional Court refers to the capacity of persons to take part in democratic decisions in a well-­informed manner.52 In the Hirst case, the European Court of Human Rights (ECtHR) writes: “the right to vote is not a

46 Dahl, Democracy and its Critics (1989), 121; Dahl, After the Revolution? Authority in a Good Society (1970), 64; Robert E. Goodin, Enfranchising all Affected Interests, and its Alternatives, Philosophy and Public Affairs 35 (2007), 40. 47 See Jasmin Hauck, Quod omnes tangit debet ab omnibus approbari – Eine Rechtsregel im Dialog der beiden Rechte, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 130 (2013), 398; critical against the use of this rule as universal basis of democracy Gunther Teubner, Quod omnes tangit: Transnationale Verfassungen ohne Demokratie?, Der Staat 57 (2018), 1. 48 Fraser, op. cit., 40, 64; David Miller, Democracy’s Domain, Philosophy & Public Affairs 37 (2009) 3, 215. 49 Fraser, op. cit., 40. 50 Johan Karlsson Schaffer, The Boundaries of Transnational Democracy: Alternatives to the All-Affected Principle, Review of International Studies 38 (2011) 2, 321; Arash Abizadeh, Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, Political Theory 36 (2008) 1, 37. 51 Abizadeh, op. cit., 45. 52 German Federal Constitutional Court, Decision of July 4, 2012 – 2 BvC 1/11, para. 42, 43.

Demands of inclusion   71 ­ rivilege. In the twenty-­first century, the presumption in a democratic State p must be in favor of inclusion.”53 Thomas Christiano proposes that democratic boundaries should be drawn around “common worlds,” meaning “a world in which all or nearly all the individuals’ fundamental interests are intertwined with each other.”54 In a similar direction goes the affectivity criterion, stating that the demos should be composed of people exhibiting a shared affectedness over multiple issues and over a certain time.55 Hans Agné proposes a broader interpretation of the affectedness-­criterion in the sense of extending it to all persons who feel that they should be included.56 This idea of voluntary inclusion can be understood to encompass all persons who are morally affected because they feel they should have a say.57 Ultimately, there is no true criterion to be discovered, but only ongoing contestations, whether from a participant viewpoint of claiming inclusion or from an observer perspective of describing criteria. It should be stressed again that criteria such as affectedness do not constitute an external perspective from which the “right” scope of inclusion could be determined, but rather a perspective within processes of exchange.

Rethinking democracy from the margins Democracy consists in the combination of the two perspectives on existing institutions and demands of inclusion. It would not be the rule of the people without an irreducible link to inclusion, but it would not be the rule of the people without institutions that actually enable and guarantee equal influence. The institutional horizon accounts for the fact that democracy needs procedures. While tyranny knows only one principle, democracy requires concrete rules in order to be effective. The normative horizon, by contrast, corresponds to normative claims about democratic inclusion. As much as stable procedures and entitlements have a dimension of enabling and preserving democracy, the claim of democracy reaches beyond those existing provisions. These two perspectives do not stand immovable against each other. First, the institutional demos is not monolithic, but involves many levels. There is not one single method of democratic decision-­making, but several instances of direct and representative democracy. There are different assessments as to how mediated the designation of a government official may be to still count as democratic, and there is disagreement about which decisions cannot be taken by the executive but must be taken by the parliament. Moreover, the normative horizon does not constitute a

53 European Court of Human Rights (ECtHR), Hirst v. the United Kingdom (No. 2), Application no. 74025/01, Grand Chamber decision, October 6, 2005, para. 59. 54 Thomas Christiano, A Democratic Theory of Territory, Journal of Social Philosophy 37 (2006) 1, 81 (97). 55 Christian List/Mathias Koenig-Archibugi, Can There Be a Global Demos? An AgencyBased Approach, Philosophy & Public Affairs 38 (2010) 1, 76. 56 Agné, op. cit., 392. 57 Ibid.

72   Democracy’s edges ­ re-­political yardstick but a range of criteria that are themselves raised and negop tiated in practice. The relationship between institutions and inclusion is essential for matters of migration. How law structures this relationship in the case of refugees will be subject of more detailed analysis in the third part of the book, in Chapters 5 to 8. In seeking a vocabulary for this analysis, Hannah Arendt’s writings are insightful. They offer important cues in the endeavor to examine democracy with a focus on its margins. Arendt never developed a full-­fletched democratic theory, but she advanced a particular understanding of the relationship between law and politics. In this reading, I draw foremost on Christian Volk’s book Arendtian Constitutionalism. Law, Politics and the Order of Freedom.58 Volk points out that Arendt, unlike theories that depart from political everyday life, develops her thought with view to a situation of crisis.59 Her political thought builds on the experience that from within a state with democratic institutions a totalitarian regime could emerge, under which persons persecute and murder their fellow citizens. Arendt’s considerations about law are marked by the attention towards the particular exclusions in the framework of the nation state, but also by the awareness that law in general entails exclusions. At the same time, Arendt builds on the positive affirmation that by acting together humans create and transform a common world. The two basic concepts for this proposition are the concept of natality, the “new beginning inherent in birth” that relates to “the capacity of beginning something anew,”60 and the concept of plurality, the fact that men exist “in the plural” and “experience meaningfulness only because they can talk with and make sense to each other.”61 While concerned with exclusions, Arendt is not so much interested in a general critique of law as part of these exclusions, but in law’s role in creating a stable political order.62 Arendt’s concept of law is one that has the “enabling of politics” at its core,63 the central question for a legal order being how the possibility of politics can be guaranteed by rules and institutions. Arendt’s concept of politics, in turn, is one that focuses on the condition of human plurality, the fact that human beings are at the same time equal and distinct.64 Arendt criticizes the belief that a political community could be based on emotional attachments,65 coining instead the formula of “equality

58 Christian Volk, Arendtian Constitutionalism. Law, Politics and the Order of Freedom (2015). 59 Ibid., 210. 60 Hannah Arendt, The Human Condition (1958), 9. 61 Ibid., 4. 62 Volk, op. cit., 4. 63 Ibid., 234. 64 Arendt, The Human Condition (1958), 175. 65 Cf. her critique of pity in the years after the French Revolution Arendt, On Revolution (1963), 59.

Demands of inclusion   73 through organization.”66 Equality should not be understood as something given, which precedes politics, but as something that is subject to and consequence of politics. While many approaches define law through the moment of coercion and enforcement, Arendt understands law less from its operation but rather from its generation. Her thinking about law is based on the relationship-­establishing dimension of law,67 the reciprocity between persons in a political community. In that, law inherently links to politics as the condition of human beings living together and recognizing each other as political subjects. Politics not only stand at the basis of law but also determine what law needs to fulfill in order to be legitimate. Central for Arendt’s concept of law is the creation of rules that enable free reasoning and exchange. Law is thus both based on and directed towards the possibility of politics.68 Vice versa, Arendt’s concept of politics refers to law as the necessary basis of order. Violence is ultimately mute, she writes,69 whereas politics can only take place through persons speaking and acting with each other. This acting together by “sharing words and deeds” is central for Arendt’s vision of politics.70 In that regard, Arendt’s position differs from many radical democratic approaches.71 She shares the focus on exclusion and on political processes outside formal institutions. Yet her thought is also essentially concerned with the importance of institutional safeguards and arrangements. Volk describes this feature as the “enabling character of a democratic legal order,”72 marking this “political enabling” as the central feature of legitimate law in Arendt’s framework.73 Regarding politics, Arendt underlines the importance of legal institutions: Law provides the room for free exchange and expression, through procedures or through guaranteeing rights such as the freedom of expression, of assembly, and of association. But law also delimitates the ground and can impede politics. Along with a stronger emphasis on stability than many approaches from radical democracy, Arendt takes a different approach to understanding and to the “acting together” as basis of politics.74 In the agonistic

66 Arendt, The Origins of Totalitarianism (1951), 301. 67 Keith Breen, Law beyond Command? An Evaluation of Arendt’s Understanding of Law, in: Marco Goldoni/Christopher McCorkindale (eds.), Hannah Arendt and the Law (2012), 15. 68 Volk, op. cit., 224. 69 Arendt, The Human Condition (1958), 26. 70 Ibid., 198. 71 Arendt’s thought is often itself classified as a strand within, or as a forebearer of, radical democracy, cf. Christopher Holman, Hannah Arendt: Plurality, Publicity, Performativity, in: Martin Breaugh et al. (eds.), Thinking Radical Democracy (2015), 33. 72 Volk, op. cit., 234. 73 Ibid., 237. 74 Arendt, The Human Condition (1958), 198.

74   Democracy’s edges approach of Ernesto Laclau and Chantal Mouffe,75 but also in the work of Jacques Rancière,76 politics are assumed to involve an irreducible opposition. This idea of political antagonism means that democracy consists in an endless spiral of order and destruction, in which one hegemony replaces another.77 From that point of view, any orientation at understanding or the attempt of a solution acceptable to all can only be an illusion.78 Whereas Arendt regards the plurality of opinions as central, she also underlines the importance of “commonness.”79 Arendt shares the view of various lines of radical democracy that any existing set of rules and institutions remains incomplete. Nonetheless, her theory of politics is one of constitutionalism, or as Hauke Brunkhorst formulates, one of a revolutionary constitution.80 Democracy, in that understanding, requires a constitution that allows the continuous challenging of positions. Arendt’s theory shares features with radical democratic thought but also with discourse theory, although the latter commonalities are less often articulated.81 In particular, Arendt’s proposition that law and politics relate to each other in a non-­hierarchical way parallels the Habermasian notion of co-­originality of private and public autonomy.82 With the concept of co-­originality, Habermas seeks to overcome the opposition between liberal and republican approaches to democracy.83 Whereas liberal approaches focus on individual rights, republican approaches are centered on the collective life in the polity. Habermas juxtaposes these views suggesting that neither public nor private autonomy should ultimately be given priority over the other.84 This equal position of individual rights and the possibility to participate in the public corresponds to aspects of Arendt’s work, which alongside the focus on the public stresses the necessity of the private realm.85 What distinguishes Arendt’s approach from the Habermasian discourse theory, however, is the answer to the question what makes law legitimate. Habermas’ discourse theory puts at the center the prerequisites for a rational discourse, and on that basis coins the formula that “all those action norms are valid

75 Laclau/Mouffe, Hegemony and Socialist Strategy – Towards a Radical Democratic Politics (1985). 76 Jacques Rancière, Disagreement: Politics and Philosophy (1999). 77 Volk, op. cit., 231. 78 Cf. Chantal Mouffe, On the Political (2005), 10. 79 Volk, op. cit., 232. 80 Hauke Brunkhorst, Power and the Rule of Law in Arendt’s Thought, in: Marco Goldoni/ Christopher McCorkindale (eds.), Hannah Arendt and the Law (2012), 212 (225). 81 Cf. however Mareike Gebhardt, Politisches Handeln in der postmodernen Konstellation. Kritische Demokratietheorie nach Hannah Arendt und Jürgen Habermas (2014). 82 Habermas, Between Facts and Norms (1996), 132; Volk, op. cit., 177. 83 Habermas, Three Normative Models of Democracy, in: Seyla Benhabib (ed.), Democracy and Difference (1996), 21. 84 Ibid., Habermas, Between Facts and Norms (1996), 118. 85 Arendt, The Human Condition (1958), 51.

Demands of inclusion   75 to which all possibly affected persons could agree as participants in rational discourses.”86 This formula allows assessing conditions of legitimacy prior to concrete instances of decision-­making. It risks, however, replacing a concrete other in an actual discourse with a “generalized other,” whose rational consent is based on abstract considerations.87 What counts as rational and what the interests of that generalized other are, is judged from a supposedly neutral perspective that easily reproduces exclusions. Arendt, by contrast, lays more emphasis on the unpredictability of political processes that cannot be judged from any abstract point of view but require the individual faculty of judgment. The ultimate horizon of what law and politics rely on is this human power of judgment.88 Law as much as every human interaction is a “venture” in which human beings engage.89 The power of judgment is a form of “practical wisdom,” which a person develops by participating in discourse-­democratic spaces and which involves the ability to formulate and reshape opinions in exchange with and recognition of others.90 That also guides considerations about institutional arrangements: In Habermasian discourse theory, the aim of consensus guides reflections about the prerequisites of institutions.91 Along Arendt’s view, institutional setting should be designed to uphold a plurality of opinions.92 From Arendt’s reflections we can gain insights for understanding democracy as inherently dynamic. When exploring this dynamic between the necessary institutions and demands of inclusion with view to the situation of refugees, several themes will lead back to Arendt’s thought, such as the role of law in structuring politics outside formal procedures, and the role of interests and opinions as two aspects of the democratic process. Moreover, Arendt’s work offers a critique of a wrong idealization of the territorial state as the sole or natural framework of law and politics. The potential for political participation outside the state is a significant question regarding refugees’ political voice. While the eighth chapter is dedicated to the participation of refugees on the international level specifically, the following more generally seeks to structure and summarize the debate about democracy beyond the state.

86 Habermas, Between Facts and Norms (1996), 107. 87 Cf. for a discussion of generalized and concrete other, though not necessarily as criticism against Habermas Seyla Benhabib, Situating the Self (1992), 148; Seyla Benhabib, The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory, in: Seyla Benhabib/Drucilla Cornell (eds.), Feminism as Critique (1987), 77. 88 Arendt did not complete her writing on judgment, yet some account is given in Hannah Arendt, The Life of the Mind (1971), 96, 97. 89 Cf. Arendt’s closing statement in the interview with Günther Gaus: Hannah Arendt interviewed by Günther Gaus, Zur Person, ZDF Germany, October 28, 1964. 90 Volk, op. cit., 201. 91 Habermas, Between Facts and Norms (1996), 34. 92 Arendt, On Revolution (1963), 227.

76   Democracy’s edges

Democracy in times of globalization In the nineteenth and the most of the twentieth century, democracy was conceptualized within the framework of the territorial state. In recent times, however, globalization and the internationalization of law have raised questions as to the democratic legitimation of governance and to the possibilities for democracy above, beyond or across states. These debates are relevant for the political rights of refugees in a dual sense. First, the international level might allow for refugees to exercise influence in a way that the national level does not. Since one central aspect of refugee law is the interpretation of the refugee concept and other conditions of mobility, those who are held at distance by the rules in question can hardly participate in the debates on a state level. In state institutions, decision-­making about rules of access is marked by a highly asymmetrical constellation between the state community and the refugee. This asymmetry does not disappear on the international level, which is still composed by representatives of state governments. Nonetheless, the international level being situated “above” states might in some respects be better placed for including refugee voices. Second, the debate around democracy beyond the state in some ways parallels questions of refugee inclusion: it concerns conditions of political participation that differ from the representative institutions of the territorial state. Reflections about democracy beyond the state might therefore offer insights regarding the political rights of those who are on the move and lacking full political membership in any state. The starting point of the considerations is the observation that social and legal relations increasingly reach across state borders. Globalization has been defined as an “increase and intensification of worldwide social relations,”93 it includes augmenting interdependence in trade, in the provision of services, in communication, and multiple social conditions evolving therefrom.94 Without aiming to give a full account here what globalization consists in, it is beyond question that these developments fundamentally alter conditions of democratic law and government. With increasing international constraints and repercussions of decisions taken elsewhere, the democratic decision-­making in the state is less effective. Decisions in one state impact the life opportunities of individuals in other states to a greater degree, and transnationally operating companies or other private entities cannot easily be held accountable by a single state. Correspondingly, an increase in law-­making and governance on the transnational and international level took place. In the second half of the twentieth century, the number and influence of international institutions grew exponentially. At the outset, their competences are based on the consent of states. The more manifold and impactful the activities of international organizations grew, however,

93 Otfried Höffe, Democracy in an Age of Globalisation (2007). 94 Cf. also Jan Aart Scholte, Globalization. A Critical Introduction (2000), 15.

Demands of inclusion   77 the more questions about their democratic legitimacy arose.95 At the same time, it is not only international institutions but also informal networks and private organizations that exercise considerable influence on the global level. In many ways, the international level does not simply add to existing state structures. Rather, different levels of law and governance have become intertwined, while at the same time a horizontal specialization and fragmentation in different subject areas took place.96 The descriptions of the changes, the diagnoses of democratic challenges, and the propositions for required responses differ. These debates have occupied a prominent place in many disciplines over the past years: in political theory, philosophy, sociology, and law. Despite the diverging views, the diagnosis of a “democratic deficit” of some kind is widely shared.97 The following examines, in a brief manner, three points of the debate that are particularly relevant in the context of refugees. The first point of contention is whether democratic legitimation is bound to the state or how it can be understood for the global level. The second point regards possible forms of democratic legitimation other than elected representation. The third point concerns the role and understanding of universalism. Skepticism towards democracy beyond the state is mostly based on arguments of practical feasibility and of current conditions. A claim that democracy is conceptually bound to the state is hard to uphold: the state has been the framework in which constitutional democracy developed, yet the concept and the idea of popular rule precede the form of the territorial state. There are no reasons why the state would be the only conceivable unit for democracy. However, a main concern regards the possibility for meaningful and effective representation of persons. As described above, there has been a longstanding debate in democratic theory whether representation can at all count as democratic. On that basis, it is argued that the size of many states already overstrains the meaning of democracy,98 let alone larger units. If representation is considered a viable mechanism for democratic organization in general, there might

95 Armin von Bogdandy/Philipp Dann/Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, in: Armin von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions (2010), 3 (9). 96 Gunther Teubner/Andreas Fischer-Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, Michigan Journal of International Law 25 (2004) 4, 999 (1005); Sabino Cassese, The Global Polity (2012), 29. 97 Stein Sundstøl Eriksen/Ole Jacob Sending, There is No Global Public: The Idea of the Public and the Legitimation of Governance, International Theory 5 (2013) 2, 213 (224); Andrew Moravcsik, Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, Government and Opposition 39 (2004) 2, 336; Kuyper, Jonathan, Global Democracy, in: Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), 1.2. 98 Cf. the notion of “polyarchy,” which Robert A. Dahl proposes instead, see Robert A. Dahl, Polyarchy: Participation and Opposition (1977).

78   Democracy’s edges be limits as to the size of the polity. This argument does not bind democracy to the state, yet it points to problems of organization and leads to the question whether and which forms of democratic legitimation beside elected representation are thinkable. Besides that, skepticism regarding democracy beyond the state points to the lack of social structures and foundations.99 Democracy requires not only formal institutions but also a public that can engage in exchange and collective processes. This, again, is not an argument that binds democracy to the state: cultural diversity, the lack of one common language, significant distances are all features that also some states have. Nonetheless, these are valid concerns with view to the simple installation of institutional structures on the international level. Democracy cannot be created through legal decisions alone but develops in a dialectic of institutional arrangement and social processes. Nonetheless, it is a task to reflect about possible institutional arrangements and to reconstruct the social processes in a sound way. For these reflections, one must recognize that the territorial state has never been a simple, flawless democratic framework. It is not the situation that a previous ideal framework of the state is now confronted with new challenges through an undemocratic international sphere. To rightly conceive of the current condition, one must note the exclusions that the territorial state always involved, which largely remained invisible since the existing procedures within the state were identified with democracy in general. Questions arising in the context of globalization in some respects reveal antinomies that have always been present yet covered in the legitimacy-­rhetoric of the state. While the challenges of social and institutional structures for democracy beyond the state are not neglectable, the processes of internationalization are not external impositions. They also react to problems in the structures of the state and as such carry an internal “reasonableness.”100 Especially in the context of migration, exclusions in the state structures have been visible. Recognizing this ambivalence can turn the question of democracy beyond the state into a more balanced search for a combination of effective institutions and adequate inclusion. In that connection, the second main point of contention comes into play: the question of what viable democratic structures and institutions are for the international level. Representation through elected officials has been the central structure of democracy in the modern state, although many states have additional elements of direct participation such as referenda. Representation, as

  99 Uwe Volkmann, Setzt Demokratie den Staat voraus?, Archiv des öffentlichen Rechts 127 (2002), 579; Steven Wheatley, A Democratic Rule of International Law, European Journal of International Law 22 (2011) 2, 525; Robert A. Dahl, Can International Organizations be Democratic?, in: Ian Shapiro/Casiano Hacker-Cordón (eds.), Democracy’s Edges (1999), 19. 100 Cf. also Dana Schmalz, Social Freedom in a Global World: Axel Honneth’s and Seyla Benhabib’s Reconsiderations of a Hegelian Perspective on Justice, Constellations 26 (2019) 2, 301 (306).

Demands of inclusion   79 should be noted in that connection, has a double layer of meaning. On a more figurative level, it expresses the “making like present” of something or a person.101 In that sense, representation simulates the direct participation of all citizens. On a less figurative level, representation means the reproducing of something, in the case of democracy the aggregation and assembled reproducing of individual opinions and interest. In that sense, representation is understood in necessary connection with elections. Elections allow individuals to choose their representative and to convey their interests and opinions to the extent possible. It also means that the mandating does not take place in one moment but recurrently, giving some control to the represented over their representation. In contrast to that conception of elected representation there have been attempts to construct political representation in an essentialist way.102 Such ascriptive representation operates with a predefined notion of who the people are and what they want, omitting the actual expression of opinions and the collective influence of individuals. Whereas such a notion of representing “the people” without any mandating is contrary to democracy, there are different facets of representation that either focus on the characteristics and perceived interests of a certain group or on political choices that are independent from a person’s group membership. Hannah Arendt in that sense juxtaposes interests and opinions as two aspects of the democratic process. Interests represent more static positions as opposed to opinions that form in exchange and as such depend on the plurality of humans and the individual faculty of judgment.103 These facets of representation and their relationship are important for thinking about democratic structures beyond the state: Are institutions conceivable on the international level that mirror the representative democracy in the state? Are other forms of institutional representation possible that do not rely on the state? David Held and Daniele Archibugi in their work in the 1990s advocated for structures that enable individuals to participate in world politics in parallel to, and independently from, state governments, for instance through a global parliamentary assembly.104 With their idea of “cosmopolitan democracy” they describe possible institutional reforms, especially within the United Nations, and outline a conception of how democracy should be understood in times of globalization. Other scholars have drawn on the framework of the European Union (EU) as an example of democracy on a supra-­state level and possible model for

101 Hanna Pitkin, The Concept of Representation (1972), 2. 102 Cf. in that direction Carl Schmitt, Verfassungslehre (1928, 11th edition 2018), 211, 235. 103 Arendt, On Revolution (1963), 226, 227. Chapter 8 will explore this aspect in more detail. 104 Held, Democracy and the Global Order (1995), 279; Archibugi/Held, Cosmopolitan Democracy: Paths and Agents, Ethics and International Affairs 25 (2011) 4, 433 (434, 446).

80   Democracy’s edges international democracy.105 Anne Peters draws on the EU model of a dual structure of democratic representation,106 suggesting that citizens can also assume a double role as citizens of states and as citizens of the world.107 Armin von Bogdandy points out that democracy in the EU, according to the Treaty on European Union (TEU), encompasses beside representation also deliberation, participation and transparency as core elements.108 Deliberation refers to communicative processes beside the formal decision-­ making and is widely regarded as an aspect of democracy, while perspectives differ on how it relates to other elements and institutions. Approaches of deliberative democracy view transnational democracy to emerge less through the creation of new institutional structures but in the diverse communicative processes outside formal institutions.109 John S. Dryzek calls this field the “governance without government,”110 a form of regulation that dispenses with system-­level authoritative organizations and draws instead on the discursive sources of order.111 Similarly, James Bohman stresses the role of transnational deliberations as decentralized processes of democratization.112 While those deliberative processes deserve attention, they accompany rather than substitute for institutional structures. As discussed above, democracy involves a constant mediation between the need for institutions and their challenging. Discourses are not outside legal settings, nor are they outside structures of power. Rather they are influenced by numerous legal rules and political arrangements, which can only counteract power inequalities to the extent that they are democratic. Beside the attention to additional elements, it is debated whether democratic representation can build on other units and channels than the state. Non-­ governmental organizations (NGOs) have been central in broadening the range of actors on the international level, advancing otherwise neglected issues and contributing to a form of opposition. The democratic role of NGOs is debated.

105 On democratic theory and the EU cf. Deirdre Curtin, Postnational Democracy: The European Union in Search of a Political Philosophy (1997), 51. 106 Individuals are represented as Union citizens in the European Parliament, and as national citizens through their state governments; cf. also in that regard Habermas, The Postnational Constellation: Political Essays (2001), 99; Habermas, The Crisis of the European Union in the Light of a Constitutionalization of International Law, European Journal of International Law 23 (2012) 2, 335 (342). 107 Anne Peters, Dual Democracy, in: Jan Klabbers/Anne Peters/Geir Ulfstein (eds.), The Constitutionalization of International Law (2009), 263 (265). 108 Armin von Bogdandy, The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations (2012), The European Journal of International Law 23 (2012) 2, 315 (329). 109 For an overview James Bohman/William Rehg, Introduction, in: James Bohman/William Rehg (eds.), Deliberative Democracy (1997), ix. 110 John S. Dryzek, Transnational Democracy (1999), 33. 111 Discourses in that understanding create a framework with which to make sense of the world, ibid., 34. 112 Bohman, op. cit., 305.

Demands of inclusion   81 Terry Macdonald proposes that elected representation on the international level should be complemented by the interest representation through NGOs.113 Central to her proposition of “stakeholder democracy” is the notion of “stakeholders” as persons who are concerned or have a claim. Referring back to the disentanglement of different notions of representation above, the representation through NGOs by necessity operates through a rather static ascription of interests. In that sense, it can complement but not substitute institutions that equip persons with the power to control and influence government. Transnational democracy does not have to mirror the forms of the territorial state, yet the general balance between institutions and inclusion remains an unaltered task. In the background to these varying observations stands a basic question about the meaning and value of universalism. In reaction to globalization and the internationalization of law, many have drawn on the vocabulary of cosmopolitanism. The concept stands for a long and diverse history of ideas, which involve in some way the notion of individuals being citizens (polites) of the world (kosmos).114 A moral cosmopolitanism, the oldest meaning of the concept, relates to an individual attitude of orienting one’s actions not only at the well-­being of the immediate community but at the concerns of wider humanity.115 A political cosmopolitanism, by contrast, includes postulations for legal and political institutions based on those universalist commitments.116 In the time of the French Revolution and in relation to the advent of individual rights, the theme of cosmopolitanism was present.117 Immanuel Kant treats cosmopolitan law as a third order of law beside the state and the inter-­state level;118 his writings on cosmopolitanism remain a significant source for reflections today.119 There has been in reaction to propositions for “cosmopolitan democracy” opposition to the vocabulary of cosmopolitanism and universalism as such. James Tully warns of an uncritical universalism based on the forms of the nation-­state as part of the “Western informal imperialism” against the rest of the

113 Terry Macdonald, Global Stakeholder Democracy (2008), 5. 114 Pauline Kleingeld, Kant and Cosmopolitanism. The Philosophical Ideal of World Citizenship (2013), 189; Gerard Delanty, The Cosmopolitan Imagination: Critical Cosmopolitanism and Social Theory, The British Journal of Sociology 57 (2006) 1, 25 (29). 115 Kleingeld, op. cit., 13; Delanty, op. cit., 26. 116 Cf. also Cassese, The Global Polity (2012), 22. 117 On July 14, 1790, Anacharsis Cloots led a delegation of foreigners into the French Assemblée Nationale to join the anniversary celebration of the 1789 Revolution, declaring that this “deputation of mankind” shared the enthusiasm about the declaration of universal freedom, cf. Selma Stern, Anacharsis Cloots, der Redner des Menschengeschlechts (1914), 94. He subsequently published a short manifesto in which he advocates for a republican world state, in which all nations should dissolve: Anacharsis Cloots, La République Universelle (1792). 118 Immanuel Kant, The Metaphysics of Morals (1797/1798), §§ 62 et seq. 119 Cf. Jürgen Habermas, The Divided West (2006), 115; Seyla Benhabib, The Rights of Others (2004), 25.

82   Democracy’s edges world.120 Chantal Mouffe more generally objects to the idea that there could be one consensual global order.121 In her view, universalism seeks equality by declaring certain norms such as human rights as valid and applicable for everyone; by doing so, it actually harms equality because it imposes norms that emerge from a particular background. Mouffe questions the ideal of a united world, and instead calls for the pursuit of a multipolar global order.122 The cautioning against an uncritical universalism is important, it also finds expression in postcolonial perspectives on international law,123 and in critical human rights scholarship.124 However, the challenges of an uncritical universalism must not result in a rejection of universalism as such. On the contrary, as James Ingram argues, “false universals” can only be addressed by universalist claims from ever-­new positions.125 The case of refugees underlines this point: the refugee concept as such refers to a normative claim across borders, and the condition of refugees illustrates how norms interrelate over distance. Seeking to describe the program of a critical cosmopolitanism, Seyla Benhabib point to the instances, in which universalist norms are invoked and through their articulations in different contexts, reshaped and actualized.126 James Ingram and Étienne Balibar employ the term “cosmopolitics” as opposed to cosmopolitanism, to stress the open and dynamic character.127 Based on the understanding of democracy that has been outlined above with reference to Arendt’s thought, such conception of critical cosmopolitanism refers to a mutual and dynamic relationship of law and politics on the global level. How does law allow for the possibility of politics beyond the state, both in institutional and non-­institutional processes? And how do politics rely on and strengthen universalist norms? Critical cosmopolitanism in that sense is a lens rather than a response, yet as such it can guide reflections about democracy in times of globalization.

120 James Tully, On Global Citizenship (2014), 30. 121 Chantal Mouffe, On the Political (2005), 11. 122 Ibid., 90. 123 Antony Anghie, The Evolution of International Law: Colonial and Postcolonial Realities, Third World Quarterly 27 (2006) 5, 739. 124 Samuel Moyn, The Last Utopia: Human Rights in History (2010), 176. 125 James Ingram, Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (2013), 150. 126 Benhabib, Claiming Rights across Borders: International Human Rights and Democratic Sovereignty, American Political Science Review 10 (2009), 691. 127 Balibar, At the Borders of Europe. From Cosmopolitanism to Cosmopolitics, Translation 4 (2014), 83; Balibar, Equaliberty (2014), 167; Ingram, op. cit., 66.

Demands of inclusion   83

Bibliography Abizadeh, A., Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, Political Theory 36 (2008) 1, 37, doi: 10.1177/ 0090591707310090. Agné, H., Why Democracy Must be Global: Self-­founding and Democratic Intervention, International Theory 2 (2010) 3, 381, doi: 10.1017/S1752971910000254. Anghie, A., The Evolution of International Law: Colonial and Postcolonial Realities, Third World Quarterly 27 (2006) 5, 739, doi: 10.1080/01436590600780011. Anter, A., Repräsentation und Demokratie, in: Pirmin Stekeler-­Weithofer/Benno Zabel (eds.), Philosophie der Republik (2018, Tübingen: Mohr Siebeck), 67. Archibugi, D./Held, D., Cosmopolitan Democracy: An Agenda for a New World Order (1995, Cambridge: Polity Press). Archibugi, D./Held, D., Cosmopolitan Democracy: Paths and Agents, Ethics and International Affairs 25 (2011) 4, 433, doi: 10.1017/S0892679411000360. Arendt, H., The Origins of Totalitarianism (1951, New York: Schocken Books). Arendt, H., The Human Condition (1958, Chicago: University of Chicago Press). Arendt, H., On Revolution (1963, New York: The Viking Press). Arendt, H., interviewed by Günther Gaus, Zur Person, ZDF Germany, October 28, 1964, www.youtube.com/watch?v=dsoImQfVsO4. Arendt, H., The Life of the Mind (edited by Mary McCarthy, published 1977/1978, New York: Harcourt Brace Jovanovich). Aristotle, Politics, Section 1290b, in: Aristotle in 23 Volumes, translated by H. Rackham, Vol. 21 (1944, Cambridge: Harvard University Press). Arrhenius, G., The Boundary Problem in Democratic Theory, in: Folke Tersman (ed.), Democracy Unbound: Basic Explorations (2005), 14. Badiou, A., The Democratic Emblem, in: G. Agamben/A. Badiou/D. Bensaid/W. Brown/J. Nancy/J. Ranciere/K. Ross/S. Žižek (eds.), Democracy in What State? (2011, New York: Columbia University Press), 6. Balibar, É., At the Borders of Europe: from Cosmopolitanism to Cosmopolitics, Translation 4 (2014), 83. Balibar, É., Equaliberty (2014, Durham: Duke University Press). Benhabib, S., The Generalized and the Concrete Other: The Kohlberg-­Gilligan Controversy and Feminist Theory, in: Seyla Benhabib/Drucilla Cornell (eds.), Feminism as Critique (1987, Cambridge: Polity Press), 77. Benhabib, S., Situating the Self. Gender, Community, and Postmodernism in Contemporary Ethics (1992, Abingdon: Routledge). Benhabib, S., The Rights of Others (2004, Cambridge: Cambridge University Press). Benhabib, S., On the Alleged Conflict between Democracy and International Law, Ethics & International Affairs 19 (2005) 1, 85. Benhabib, S., The Philosophical Foundations of Cosmopolitan Norms, in: Robert Post (ed.), Another Cosmopolitanism (Oxford: Oxford University Press, 2006), 49. Benhabib, S., Claiming Rights across Borders: International Human Rights and Democratic Sovereignty, American Political Science Review 103 (2009) 4, 691, doi: 10.1017/S0003055409990244. Benvenisti, E., Sovereigns as Trustees of Humanity, American Journal of International Law 107 (2013) 2, 295. Bien, G./Demokratie I, in: Joachim Ritter (ed.), Historisches Wörterbuch der Philosophie (1972, Basel: Schwabe), Band 2, doi: 10.24894/HWPh.5086.

84   Democracy’s edges von Bogdandy, A./Dann, P./Goldmann, M., Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, in: A. von Bogdandy/R. Wolfrum/J. Bernstorff/P. Dann/M. Goldmann (eds.), The Exercise of Public Authority by International Institutions (2010, Heidelberg: Springer), 3. von Bogdandy, A., The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations, The European Journal of International Law 23 (2012) 2, 315, doi:10.1093/ejil/chs018. Bohman, J./Rehg, W., Introduction, in: James Bohman/William Rehg (eds.), Deliberative Democracy (1997, Cambridge: The MIT Press), ix et seq. Bohman, J., From Demos to Demoi: Democracy across Borders, Ratio Juris 18 (2005) 3, 293, doi: 10.1111/j.1467-9337.2005.00300.x. Breaugh, M./Holman, C./Magnusson, R./Mazzocchi, P./Penner, D. (eds.), Thinking Radical Democracy (2015, Toronto: University of Toronto Press). Breen, K., Law beyond Command? An Evaluation of Arendt’s Understanding of Law, in: Marco Goldoni/Christopher McCorkindale (eds.), Hannah Arendt and the Law (2012, Oxford: Hart Publishing), 15. Brunkhorst, H., Power and the Rule of Law in Arendt’s Thought, in: Marco Goldoni/ Christopher McCorkindale (eds.), Hannah Arendt and the Law (2012, Oxford: Hart Publishing), 212. Butler, J., Sovereign Performatives in the Contemporary Scene of Utterance, Critical Inquiry 23 (1997) 3, 350. Cassese, S., The Global Polity (2012, Sevilla: Global Law Press). Cheneval, F., The People in Deliberative Democracy, in: Samantha Besson/José Luis Martí (eds.), Deliberative Democracy and its Discontents (2006, Abingdon: Routledge), 159. Christiano, T., A Democratic Theory of Territory, Journal of Social Philosophy 37 (2006) 1, 81. Cloots, A., La République Universelle (1792), Bibliothèque Nationale de France: https:// gallica.bnf.fr/ark:/12148/bpt6k64369303. Cover, R., Nomos and Narrative, Harvard Law Review 97 (1983) 1, 4. Curtin, D., Postnational Democracy: The European Union in Search of a Political Philosophy (1997, The Hague: Kluwer). Dahl, R. A., After the Revolution? Authority in a Good Society (1970, New Haven: Yale University Press). Dahl, R. A., Polyarchy: Participation and Opposition (1977, New Haven: Yale University Press). Dahl, R. A., Democracy and its Critics (1989, New Haven: Yale University Press). Dahl, R. A., On Democracy (1998, New Haven: Yale University Press). Dahl, R. A., Can International Organizations be Democratic?, in: Ian Shapiro/Casiano Hacker-­Cordón (eds.), Democracy’s Edges (1999, Cambridge: Cambridge University Press), 19. Delanty, G., The Cosmopolitan Imagination: Critical Cosmopolitanism and Social Theory, The British Journal of Sociology 57 (2006) 1, 25, doi: 10.1111/j.14684446.2006.00092.x. Dryzek, J. S., Transnational Democracy, The Journal of Political Philosophy 7 (1999) 7, 30, doi: 10.1111/1467-9760.00064. Eriksen, S. S./Sending, O. J., There is No Global Public: the Idea of the Public and the Legitimation of Governance, International Theory 5 (2013) 2, 213, doi: 10.1017/ S1752971913000183.

Demands of inclusion   85 Fraser, N., Scales of Justice (2009, New York: Columbia University Press). Gebhardt, M., Politisches Handeln in der postmodernen Konstellation. Kritische Demokratietheorie nach Hannah Arendt und Jürgen Habermas (2014, Baden-­Baden: Nomos). Goodin, R. E., Enfranchising all Affected Interests, and its Alternatives, Philosophy and Public Affairs, 35 (2007), 40, doi: 10.1111/j.1088-4963.2007.00098.x. Gündoğdu, A., Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants (2015, Oxford: Oxford University Press). Habermas, J., Between Facts and Norms (1996, Boston: The MIT Press). Habermas, J., Three Normative Models of Democracy, in: Seyla Benhabib (ed.), Democracy and Difference (1996, Princeton: Princeton University Press), 21. Habermas, J., Constitutional Democracy – A Paradoxical Union of Contradictory Principles?, Political Theory 29 (2001) 6, 766. Habermas, J., The Postnational Constellation: Political Essays (2001, Cambridge: Polity Press). Habermas, J., The Divided West (2006, Cambridge: Polity Press). Habermas, J., The Crisis of the European Union in the Light of a Constitutionalization of International Law, European Journal of International Law 23 (2012) 2, 335, doi: 10.1093/ejil/chs019. Hauck, J., Quod omnes tangit debet ab omnibus approbari – Eine Rechtsregel im Dialog der beiden Rechte, Zeitschrift der Savigny-­Stiftung für Rechtsgeschichte 130 (2013), 398. Held, D., Democracy and the Global Order (1995, Palo Alto: Stanford University Press). Hobbes, T., The Leviathan (1651; London: Penguin Classics edition 2017). Höffe, O., Democracy in an Age of Globalisation (2007, Berlin: Springer). Holman, C., Hannah Arendt: Plurality, Publicity, Performativity, in: M. Breaugh/C. Holman/R. Magnusson/P. Mazzocchi/D. Penner (eds.), Thinking Radical Democracy (2015), 33. Ingram, J. D., Cosmopolitanism from Below: Universalism as Contestation, Critical Horizons 17 (2016) 1, 66, doi: 10.1080/14409917.2016.1117815. Ingram, J. D., Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (2013, New York: Columbia University Press). Kant, I., Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903, Whitefish: Kessinger Publishing). Kant, I., The Metaphysics of Morals (1797/1798), (edited by Mary J. Gregor, 1991, Cambridge: Cambridge University Press). Kelsen, H., Vom Wert und Wesen der Demokratie (1929, Ditzingen: Reclam 2018). Kelsen, H., Foundations of Democracy, in: Matthias Jestaedt/Oliver Lepsius (eds.), Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie (2006, Tübingen: Mohr Siebeck), 248. Kelsen, H., Verteidigung der Demokratie (1937), in: Matthias Jestaedt/Oliver Lepsius (eds.), Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie (2006, Tübingen: Mohr Siebeck), 237. Kleingeld, P., Kant and Cosmopolitanism. The Philosophical Ideal of World Citizenship (2013, Cambridge: Cambridge University Press). Kuyper, Jonathan, Global Democracy, in: Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), https://stanford.library.sydney.edu.au/ archives/spr2015/entries/global-­democracy/. Laclau, E./Mouffe, C., Hegemony and Socialist Strategy – Towards a Radical Democratic Politics (1985, New York: Verso Books).

86   Democracy’s edges Landau, P., The Origin of the Regula iuris “Quod omnes tangit” in the Anglo-­Norman School of Canon Law during the Twelfth Century, Bulletin of Medieval Canon Law 32 (2015), 19, doi: 10.1353/bmc.2015.0002. List, C./Koenig-­Archibugi, M., Can There Be a Global Demos? An Agency-­Based Approach, Philosophy & Public Affairs 38 (2010) 1, 76. Macdonald, T., Global Stakeholder Democracy (2008, Oxford: Oxford University Press). Maier, H., Demokratie II, in: Joachim Ritter (ed.), Historisches Wörterbuch der Philosophie (1972, Basel: Schwabe), Band 2, doi: 10.24894/HWPh.5086. Marx, K., Critique of Hegel’s Philosophy of Right (1843), translated and edited by Joseph O’Malley (1977, Cambridge: Cambridge University Press). Michelman, F., Law’s Republic, Yale Law Journal 97 (1988) 8, 1493. Miller, D., Democracy’s Domain, Philosophy & Public Affairs 37 (2009) 3, 201, doi: 10.1111/j.1088-4963.2009.01158.x. Moravcsik, A., Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, Government and Opposition 39 (2004) 2, 336, doi: 10.1111/j.1477-7053. 2004.00126.x. Mouffe, C., On the Political (2005, Abingdon: Routledge). Moyn, S., The Last Utopia: Human Rights in History (2010, Cambridge: Harvard University Press). Näsström, S., The Legitimacy of the People, Political Theory 35 (2007) 5, 624, doi: 10.1177/0090591707304951. Peters, A., Dual Democracy, in: Jan Klabbers/Anne Peters/Geir Ulfstein (eds.), The Constitutionalization of International Law (2009, Oxford: Oxford University Press), 263, doi: 10.1093/acprof:oso/9780199543427.003.0006. Pitkin, H. F., The Concept of Representation (1972, Berkeley: University of California Press). Pitkin, H. F., Representation and Democracy: Uneasy Alliance, Scandinavian Political Studies 27 (2004) 3, 335, doi: 10.1111/j.1467-9477.2004.00109.x. Plato, Statesman, Section 291 d, in: Plato in Twelve Volumes, translated by Harold N. Fowler, Vol. 12 (1921, Cambridge: Harvard University Press). Polybius, Histories, Book 6, Chapter 4 (The Rotation of Polities), in: Histories. Polybius, translated by Evelyn S. Shuckburgh, 1889. Reprint Bloomington 1962. Ramirez, F. O./Soysal, Y./Shanahan, S., The Changing Logic of Political Citizenship: Cross-­National Acquisition of Women’s Suffrage Rights, 1890 to 1990, American Sociological Review 62 (1997) 5, 735. Rancière, J., Disagreement: Politics and Philosophy (1999, Minneapolis: University of Minnesota Press). Rousseau, J.-J., Du Contrat Social (1762, Paris: Flammarion 1976). Schaffer, J. K., The Boundaries of Transnational Democracy: Alternatives to the All-­ Affected Principle, Review of International Studies 38 (2011) 2, 321. Schmalz, D., Social Freedom in a Global World: Axel Honneth’s and Seyla Benhabib’s Reconsiderations of a Hegelian Perspective on Justice, Constellations 26 (2019) 2, 301, doi: 10.1111/1467-8675.12391. Schmitt, C., Verfassungslehre (1928, Berlin: Dunker & Humblot, 11th edition 2017). Schumpeter, J. A., Capitalism, Socialism, and Democracy (1943, New York: Harper Perennial Modern Classics 2008). Scholte, J. A., Globalization. A Critical Introduction (2000, London: Red Globe Press). Sieyès, E. J., Qu’est-ce que le Tiers-­État? (1789, Paris: Flammarion 2018). Stern, S., Anacharsis Cloots, Der Redner des Menschengeschlechts (1914, Berlin: Ebering).

Demands of inclusion   87 Teubner, G., Quod omnes tangit: Transnationale Verfassungen ohne Demokratie?, Der Staat 57 (2018), 1. Teubner, G., Fischer-­Lescano, A., Regime-­Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, Michigan Journal of International Law 25 (2004) 4, 999. de Tocqueville, A., Democracy in America (1835/1840), translated and edited by Harvey C. Mansfield and Delba Winthrop (2nd ed. 2002, Chicago: University of Chicago Press). Tully, J., On Global Citizenship (2014, London: Bloomsbury). Volk, C., Arendtian Constitutionalism. Law, Politics and the Order of Freedom (2015, Oxford: Hart Publishing). Volkmann, U., Setzt Demokratie den Staat voraus? Archiv des öffentlichen Rechts 127 (2002), 575. Wheatley, S., A Democratic Rule of International Law, European Journal of International Law 22 (2011) 2, 525, doi: 10.1093/ejil/chr022. Whelan, F. G., Prologue: Democratic Theory and the Boundary Problem, Nomos 25 (1983), 13. Young, I. M., Inclusion and Democracy (2000, Oxford: Oxford University Press).

Part III

The legal conditions of refugees’ political voice

5 Institutions of refugees’ political participation

A mapping of narrow spaces This chapter explores to what extent institutional structures allow for refugees’ political participation. This means a mapping of narrow spaces. It is precisely the lack of full political membership that the refugee concept responds to and depends on. On the one hand, the rules of refugee protection respond to the fact that a person flees her home and usually no longer benefits from the political membership in her state of origin. On the other hand, refugee status ends when a new nationality is acquired.1 Refugeehood and citizenship, from a first view, are opposites that exclude each other. The overall picture is not false and yet there are several points at which the relationship of refugeehood and citizenship turns out more complex. Whereas citizenship status and refugee status are mutually exclusive, this does not mean that any institutional forms of political participation are foreclosed to refugees. First, while the acquisition of a new nationality ends refugee status, the conditions under which refugees can acquire a nationality is a matter of regulation. The question of access to nationality and citizenship status is what the following section will examine. Second, to what extent refugees retain some level of political membership in their state of origin is another point of variation, which the subsequent section will turn to. In the state where a person finds refuge, some institutional forms of political membership below full citizenship may be accessible for refugees. This mostly concerns alien voting rights, as the fourth section will discuss. Finally, there are some examples for bodies of special representation, a channel that the fifth and final section explores. In that connection, it should be stressed again that I am using the term “refugee” in a broad sense, yet with view to legal regulations. My considerations are not limited to persons falling under the 1951 GRC definition of the refugee, because the making, interpretation and contestation of this definition itself forms part of the political processes around refugee protection. Thinking about the political voice of refugees includes their voice on the question of who is a

1 Article 1 C para. 3 Geneva Refugee Convention (GRC).

92   Refugees’ political voice refugee. Neither are the considerations limited to those legally recognized as refugees, nor can refugees be taken as an essential category. The refugee concept is rooted in a normative idea and agreement, which is concretized in law. It is not, by contrast, expressive of any essential difference regarding the persons it applies to, nor does the concept correspond to a uniform situation. This must be born in mind when making claims that refugees should be treated differently from other migrants regarding the access to political rights.2 The relationship of refugee law and political rights is situated in the broader framework of migration and access to citizenship. Recognized refugees can be in very different circumstances regarding their political membership, and migrants not meeting the criteria of refugee status can share these varying conditions.

Refugees and the access to nationality Rules on acquiring nationality apply to all immigrants equally. I will therefore consider the specific situation of refugees against the background of the general rules. Speaking of nationality and citizenship, I refer to the legal terms of membership in a state. States have broad discretion in regulating the conditions for acquiring nationality and citizenship status. Some provisions exist in international law, which shall be examined in the following. Article 15 of the 1948 Universal Declaration of Human Rights (UDHR) states that “everyone has the right to a nationality.”3 The UDHR is a non-­ binding document which, however, has assumed considerable authority through references in legal contexts and public discourse. The binding 1966 International Covenant on Civil and Political Rights (ICCPR) does not contain a provision on nationality that would directly correspond, but postulates in its Article 24 para. 3 that “[e]very child has the right to acquire a nationality.”4 This belongs to the international rules that aim to reduce and prevent statelessness. Statelessness has been an issue for international law since the beginning of the twentieth century. The 1949 Study of Statelessness described the legal situation of stateless persons and the problems linked to statelessness.5 Two conventions were passed in the following, the 1954 Convention Relating to the Status of Stateless Persons,6 and the 1961 Convention on the Reduction of Statelessness.7 International law does not foresee specific rules on how nationality should

2 Cf. Ruvi Ziegler, Voting Rights of Refugees (2017), 6, 222. 3 Universal Declaration of Human Rights (UDHR), December 10, 1948, UN GA Res. 217 A (III). 4 International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by UN General Assembly Resolution 2200A (XXI) of December 16, 1966. 5 United Nations, A Study of Statelessness (1949). 6 Convention Relating to the Status of Stateless Persons, September 28, 1954, United Nations Treaty Series, vol. 360, 117. 7 Convention on the Reduction of Statelessness, August 30, 1961, United Nations Treaty Series, vol. 989, 175.

Institutions of political participation   93 be conferred, yet seeks to ensure that every person has a nationality. The Convention on the Reduction of Statelessness in several articles calls on states that persons should not be deprived of their nationality if that would render them stateless.8 Apart from those rules conditional on the individual situation of a person, the Convention prohibits depriving persons of nationality on racial, ethnic, religious or political grounds.9 In the regulation of nationality, the rules on acquisition at birth are the most influential. Article 24 para. 3 ICCPR opposes discriminatory laws that excludes children of a certain social group from gaining citizenship by birth, and requires that children are not impaired by the differences in rules on acquisition of citizenship. Nationality by birth is conferred either according to ius soli, meaning rules by a child acquires the nationality of the place of birth, or through ius sanguinis, meaning rules oriented at the nationality of the child’s parents.10 Most legal systems today contain a mixture of both principles in order to account either for contingencies like the temporal absence of parents in a state of ius soli,11 or for the strong bond a person born and growing up in a state will usually have with this state, irrespective of the nationality of their parents.12 These supplement rules aim to prevent statelessness at birth, but also to adjust legal rules to social realities of persons in an environment. The 1961 Convention suggests that nationality should be conferred primarily according to ius soli13 and complementarily through ius sanguinis14 in case a person would otherwise be stateless.15 In sum, international law contains few explicit regulations regarding the access to nationality. Through provisions aiming to prevent statelessness and the postulation of a right to a nationality in the UDHR, it expresses, however, that nationality is central to a person’s situation. Nationality is not accidental and something states can confer at complete discretion.16 It ensures the legal recognition of a person and constitutes the basis for rights and duties. Even though fundamental rights protect persons independently from nationality, the lack of nationality tends to put a person in a position of legal precarity. Nationality entails the right not to be expelled and to be able to leave and reenter a state.17 It entails the diplomatic protection by the respective state, the international

  8 Especially Articles 5, 6 and 8 of the Convention on the Reduction of Statelessness.   9 Article 9 of the Convention on the Reduction of Statelessness. 10 James Crawford, Brownlie’s Principles of Public International Law (2012), 511. 11 Cf. US 1951 Immigration and Nationality Act, Section 301 [8 U.S.C. 1401] para. c. 12 Cf. § 4 para. 3 of the German Nationality Law. 13 Articles 1–3 of the Convention on the Reduction of Statelessness. 14 Article 4 of the Convention on the Reduction of Statelessness. 15 For an interpretation cf. UNHCR, Guideline on Statelessness No. 4, HCR/GS/12/04, December 21, 2012. 16 See already International Court of Justice (ICJ), Nottebohm (Liechtenstein v. Guatemala), April 6, 1955. 17 Cf. Article 12 para. 2–4 ICCPR; cf. also Article 3 para. 1 and 2 of Protocol No. 4 to the European Convention on Human Rights (ECHR).

94   Refugees’ political voice mobility that a passport offers, and in a democratic state it typically corresponds with the right to vote and to stand for election. International law expresses clearly that a lack of nationality is to be avoided. The situation of refugees must be seen against that background. Refugees often retain the nationality of their state of origin, yet to different degrees find themselves in a situation of de facto statelessness. Persons who flee persecution of the state do not benefit from the diplomatic protection or other aspects of state membership. In all circumstances, a person who fled their home does not benefit from the most central guarantee a nationality provides, to have a place where one cannot legally be removed from.18 In some cases, refugees will be formally deprived of their nationality by the state they have fled, but mostly the actual security granted through nationality and the enjoyment of citizenship are impaired. Notably, this result is varied and gradual. Migrations can be driven by hardships of different kinds and to different degrees, with refugee status delimitating certain such cases legally. In that sense, refugee status indicates that a person cannot effectively benefit from her nationality,19 but neither are such conditions of de facto statelessness limited to refugees in the sense of the GRC, nor are the situations of refugees analogous in that respect. This said, it is noteworthy that the GRC explicitly refers to the acquisition of the host state’s nationality by refugees. Article 34 GRC states: The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings. The article is of limited importance in practice, as it does not impose any strict obligation on states and has the character of a mere recommendation.20 It leaves open what “facilitating” and “expediting” mean for the legal conditions of naturalization and the necessary duration of presence. The provision of Article 34 GRC is noteworthy nonetheless for two reasons. First, it opposes a conception of refugee protection as temporary shelter until a person can return to her state of origin. While temporary shelter and subsequent return is one possible scenario, the GRC does explicitly not cast it as the regular scenario but foresees naturalization as a standard procedure. Second, the call to facilitate and expedite naturalization reflects that the acquisition of a new nationality is often more important for refugees than for migrants in general,

18 Ibid. 19 “Effective” in that context refers to the actual enjoyment of rights attached to nationality, unlike the concept of “effective nationality” in case of dual nationality. Cf. for a disentanglement Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (2016), 52. 20 Reinhard Marx, Article 34, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011), 1451.

Institutions of political participation   95 given the de facto statelessness that refugees tend to find themselves in. This concern with actual enjoyment of nationality is also expressed in the GRC provisions dealing with cessation of refugee status. Article 1 C (3) GRC states that a person no longer falls under the refugee definition if she “has acquired a new nationality, and enjoys the protection of the country of his new nationality.” The cessation of refugee status thus results not from the formal acquisition of nationality but requires the actual enjoyment of the protection of that state. Article 34 GRC in that sense should be read as a guiding provision. It underlines that refugee status is meant to be a temporary situation and not a prolonged one. It expresses that the gist of refugee protection is not the provision of shelter until a person can return but – as a rule and not the exception – the successive admission into a new political community. Finally, by calling for an expedited naturalization, the provision reflects an understanding that acquiring a nationality is not only equally open to refugees but might even be more important.

Voting rights of refugees in their state of residence Until refugees acquire the nationality of the host state or return to their states of origin, several years can pass. In that period, what are the avenues of political voice available to refugees? Voting rights are not the only conceivable avenue yet a central one. International human rights law recognizes apart from the role of nationality the role of political participation. Article 21 of the UDHR states in that regard: (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. The ICCPR states in Article 25: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

96   Refugees’ political voice With view to the broader wording of the UDHR, it has been discussed whether this references a general right to democratic participation.21 The broad formulation of “everyone” might be read to demand some form of democratic membership independently from nationality; it at least leaves open the possibility for alien voting rights.22 At the same time, the subsequent paragraphs of Article 21 UDHR refer to the relationship between an individual and “his country.” This corresponds to the perspective of the ICCPR, which speaks of “every citizen,” viewing political participation in connection with stable membership in the state. While the Human Rights Committee explicitly mentions the possibility of granting voting rights to non-­national residents,23 there is no rule that requires states to grant such rights. Refugee voting rights in their state of residence is not a question separate as such from general alien voting rights. Voting rights for non-­national residents exist in several states, with a growing tendency.24 Based on the consideration that laws and administrative decisions have a considerable impact on residents regardless of their formal citizenship, many states grant the right to vote at least on the local level after a few years of presence. In some Latin American states, resident voting rights exist even on the national level, as for instance in Chile after five years of residence,25 or in Venezuela after ten years of residence.26 In general, the right to vote is accorded with reference to two criteria: nationality and durable residence or presence in the state. While there is a great variety in how states accord voting rights, all regulations combine these two elements in one way or another. Some states base voting rights entirely on nationality, regardless of presence or permanent residence. Italy, France, Spain and Germany are examples of states in which even nationals who are born abroad and never lived in the state still retain the right to vote.27 Italy and France even

21 In that sense Fabienne Peter, The Human Right to Political Participation, Journal of Ethics and Social Philosophy 7 (2013) 2, 1 (11). 22 David C. Earnest, Old Nations, New Voters (2008), 36; with reference to J. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, University of Pennsylvania Law Review 141 (1993) 4, 1391. 23 UN Human Rights Committee, Concluding Observations (November 9, 1995), CCPR/C/79/add.59, para. 12. 24 David C. Earnest, Voting Rights for Resident Aliens: A Comparison of 25 Democracies (2003), paper delivered at the 2003 annual meeting of the Northeast Political Science Association and the International Studies Association-Northeast. 25 Cf. Article 14 I of the Chilean Constitution and Article 37 II of Law No. 18556. 26 Cf. Article 64 of the Venezuelan Constitution. 27 Cf. for Germany the decision by the German Federal Constitutional Court, July 4, 2012 (2 BvC 1/11 and 2 BvC 1/11), full text in German www.bverfg.de/entscheidungen/ cs20120704_2bvc000111.

Institutions of political participation   97 foresee particular deputies for nationals living abroad.28 A second model bases the right to vote on nationality and in addition requires permanent residence, or does not provide an absentee ballot system. Israel is an example for this model, where absent voting is not possible.29 A third model requires permanent residence and not necessarily nationality. In several Latin American states, residents acquire the right to vote after a certain period, whereas external voting rights are limited.30 A fourth model allows for resident voting rights as well as external voting, thus granting voting rights based on residence without nationality, and based on nationality without residence.31 Within the range of regulations regarding voting rights, there are furthermore many combinations of these models. Scotland passed a bill in February 2020 that gives all permanent residents in the right to vote and be elected in local elections and in elections to the Scottish Parliament.32 The bill explicitly includes persons with refugee status. Several Scandinavian and Eastern European States allow non-­national residents to vote on the local, or in some cases regional, level after three or five years of residence, while limiting elections on the national level to nationals.33 In the European Union, a right to vote in local elections at the place of residents was introduced as an element of EU citizenship with the Treaty of Maastricht.34 The theoretical assessment of this evolution in the EU differs: on the one hand, the voting rights for EU citizens in other member states illustrate the possibility of detaching democratic participation rights from nationality. In that regard, the provision has been described as part of a process of disaggregation of citizenship.35 At the same time, most European states have limited the right to vote on the local level to EU citizens. In that sense, it has created differing categories of resident aliens: citizens of other EU states and third-­country nationals. This does not alter the basis of voting rights but only moves the boundaries of political membership to partly include European Union citizens.

28 In Italy, a regulation for the special representation of external voters exists since 2002. In France, a respective regulation was created in 2010 for the Assemblée Nationale, while the Senate already since 1948 contained seats for deputies of citizens living abroad, though these deputies were not elected directly; cf. for an overview Carlos Navarro/Isabel Morales/Maria Gratschew, External Voting: A Comparative Overview, in: Voting from Abroad. The International IDEA Handbook (2007), 11 (28). 29 Cf. Section 5 of the Basic Law: The Knesset (1958). 30 Cf. Sect. III, Ch. 2, Article 78 of the Constitution of Uruguay; cf. further Article 14 I of the Chilean Constitution and Article 37 II of Law No. 18556; a new regulation with regard to voting from abroad has been passed in 2014, however. 31 Cf. for instance Article 64 of the Venezuelan Constitution. 32 Scottish Elections (Franchise and Representation) Bill, February 20, 2020. 33 Such is the case for instance in Sweden, Norway, Finland, Denmark, the Netherlands, Lithuania, Latvia, Estonia, Slovakia, and Slovenia. 34 Today enshrined in Article 22 Treaty on European Union, as well as in Article 40 of the Charter of Fundamental Rights of the European Union. 35 Seyla Benhabib, The Rights of Others (2004), 129.

98   Refugees’ political voice The different models of states depend on factors such as the percentage of citizens living abroad but they also reflect different conceptions of the political community. A model that attaches voting rights to nationality regardless of presence follows a more static conception than a model that is residency-­based. For a full picture, however, one has to read together voting rights regulations and rules on access to citizenship and has to take into account the specific demographic conditions of a state. This said, there are valuable grounds for opening a right to vote in local elections to resident aliens. Viewing democracy to embody the organization of government between equals, the disenfranchisement of a considerable part of the durable population that is affected by all decisions faces a burden of justification.36 Second, the reference to domicile rather than nationality is also in line with the tendency in international private law, which in a world of increasingly mobile populations, has moved from nationality to habitual residence as the primary criterion for the applicable law.37 Whereas a certain familiarity with the social environment and integration therein seem necessary for democratic processes, this does not necessarily oppose resident voting rights. To the contrary, the nationality acquired by birth might say much less about a person’s capacity for meaningful involvement in democratic procedures than residence over a certain length of time. The question of resident voting rights is in motion, yet a clear tendency is hard to establish. On the one hand, we see a denationalization of voting rights with regard to EU citizens, and a far-­reaching practice in some Latin American states. On the other hand, proposals for extending the right to vote to non-­ national residents have explicitly been rejected, and it seems doubtful whether the extension of the right to vote on the local level for EU citizens considerably alters the position of non-­nationals in general. There exists no norm or common practice for treating refugees separately with regard to voting rights. Ruvi Ziegler suggests that refugees should have the right to vote as they form a special category of non-­citizen residents.38 This suggestion finds no reflection in legal developments or observable political debate so far. It also is hardly convincing to distinguish between refugees and other migrants with a view to voting enfranchisement. As discussed at the beginning of the chapter, the situation of refugees regarding political rights is itself diverse. First, the political situation of refugees in a host state is not uniform. It might differ in the prospect of returning or staying, and just as for all migrants, the connection with the host state likely develops over time, making claims to political membership and participation successively more cogent. Second, refugees are, like other migrants, not necessarily disenfranchised from participating in

36 Ludvig Beckman, Citizenship and Voting Rights: Should Resident Aliens Vote?, Citizenship Studies 10 (2006) 2, 153. 37 Pippa Rogerson, Habitual Residence: The New Domicile?, International and Comparative Law Quarterly 49 (2000) 1, 86. 38 Ziegler, op. cit., 222.

Institutions of political participation   99 elections in their state of origin. Recognizing this remaining link does not exclude that they may be enfranchised in the host state yet placing an argument for refugee voting rights on prior complete disenfranchisement does not hold. Having considered democracy as composed of claims of inclusion and the need for institutions, the voting enfranchisement of refugees in the state of residence has to be seen along this tension. On the one hand, the continuous presence of refugees leads to a growing demand for inclusion; on the other hand, legal requirements for voting rights are justified in light of the equality-­ guarding function of institutions. Many states have been reluctant to open the voting rights schemes beyond nationals, and those excluded through these decisions lack formal representation, which limits the political pressure of the issue. The lack of formal representation does not mean, however, a complete exclusion from political voice. In light of the limited promise that formal channels hold for refugees, the conditions of of how political opinions can become heard otherwise are all the more significant. The sixth chapter will turn to these conditions of political voice outside formal channels.

Voting rights of refugees in their states of origins Apart from the question of voting rights, it is in many cases of importance to refugees to participate in elections in their state of origin. Having fled persecution or violent conflicts, the personal stories of refugees are regularly entangled with the political fate of their state of origin. This makes a political voice in the state of origin significant even from the distance of having found shelter in another state. Whereas forms of political involvement that require physical presence are not available to refugees regarding their home state, voting from distance is, in general, conceivable. At the same time, conditions to participate in state of origin elections are often unfavorable for refugees. Even if the possibility to vote from abroad exists in general, refugees often do not benefit from it. If a person fears individual persecution, registering for the ballot would mean a considerable risk. In circumstances of ethnic conflicts or civil war, the political participation of those who fled the country typically faces legal and factual obstacles.39 Despite these difficulties, there are constellations in which refugees can participate in elections in their state of origin. Especially in post-­conflict societies, the participation of those who fled can play an important role for re-­establishing a government. A case study conducted by the International Organization for Migration (IOM) summarizes the practices of several states in that regard.40

39 Jeff Fischer, The Political Rights of Refugees and Displaced Persons: Enfranchisement and Participation, in: Voting from Abroad. The International IDEA Handbook (2007), 151 (156), cf. also Ruvi Ziegler, op. cit., 151. 40 Jeremy Grace/Jeff Fischer, Enfranchising Conflict-Forced Migrants: Issues, Standards, and Best Practices, Participatory Elections Project, discussion paper (2003).

100   Refugees’ political voice Comparing cases of successful and less successful attempts to have conflict-­ forced migrants participate in elections of the state of origin, the study does not arrive at a conclusive judgment on how promising such attempts are. Rather, it offers illustrative examples of the issues that can arise. In general, the study highlights how dependent elections are from the basic stability of the society, and how ambivalent the influence of international organizations can be in these circumstances. With regard to the participation of refugees, the study points out that electoral participation can become a point of new conflict between ethnic groups.41 Ruvi Ziegler in his book Voting Rights of Refugees also takes a specific look at absent voting in transitional elections, as they took place in Angola, Bosnia-­ Herzegovina, Cambodia, Guatemala, or Mozambique.42 At the example of the Dayton agreement concerning Bosnia and Herzegovina, Ziegler points out how voting enfranchisement of persons who had fled the region is coupled with the expectation that they will return.43 Annex 3 of the Dayton agreement in that sense states that “[t]he exercise of a refugee’s right to vote shall be interpreted as confirmation of his or her intention to return to Bosnia and Herzegovina.” UNHCR has traditionally been hesitant about political activism of refugees yet turned to engage more with the topic in the last two decades, as Katy Long shows in a study.44 Given that UNHCR’s statute emphasizes the unpolitical nature of its work, the agency with good reasons avoids getting involved in political processes too closely. However, this does not hinder recognizing that the possibility for refugees to participate in politics is significant. Recently, there has been increasing support by UNHCR of participation in country of origin elections.45 At the same time, such participation in elections should not be immediately coupled with demands of return. As Katy Long suggests, taking the political opinions of refugees seriously involves “respecting their skepticism about the prospects for post-­conflict democratic transitions in their country of origin.”46 The rights and enablement of refugees voting in their state of origin in that sense brings to the surface the ambivalent role of the state of origin membership. On the one hand, the identification with the state of origin is often important for the person fleeing and might even be deepened by the experience of exile. On the other hand, this identification can be turned into an argument against enfranchising persons in their place of presence. The refugee’s nationality is significant in asylum procedures, where the origin of a person serves as a

41 E.g. with regard to Bosnia-Herzegovina ibid., 9. 42 Ruvi Ziegler, op. cit., 147. 43 Ibid. 44 Katy Long, Voting with their Feet. A Review of Refugee Participation and the Role of UNHCR in Country of Origin Elections and Other Political Processes, UNHCR Policy Development and Evaluation Service (2010), 3, 9. 45 Ibid., 14. 46 Ibid., 22.

Institutions of political participation   101 basis for most decisions. Yet the emphasis on the origin can contribute to upholding the picture of a person “temporary out of place.”47 Whereas the possibility to participate in state of origin elections is an important aspect to the political voice of refugees, it should not be pitted against the successive political enfranchisement in the host state.

Special bodies of refugee representation Seeking an understanding of the different legal fields relevant to the political inclusion of refugees, it is interesting to look at the 1992 Council of Europe (CoE) Convention on the Participation of Foreigners in Public Life at the Local Level. This is despite its limited practical relevance: the Convention has been endorsed by the CoE Parliamentary Assembly,48 appealing to member states to ratify it and grant political rights to immigrants; yet so far only eight states have actually ratified it.49 It is noteworthy, however, for its systematic approach to the political inclusion of non-­national residents, addressing three fields of regulation. As the foundation of any political activity, it stresses the importance of freedom of expression, freedom of assembly, and freedom of association. Those rights – which will be considered in the context of non-­institutionalized channels of political participation in the following chapter – should be granted to foreigners to the same degree as to nationals, according to the Convention.50 Second, the Convention advocates for a right to vote at the local level after a certain time of presence51 – a topic discussed above. Finally, the Convention suggests that consultative bodies shall be introduced, which represent foreigners at the local level52 – the issue addressed in this section. These different fields of law combine and intertwine, also as they regard the access of refugees to political voice. The idea of special political participation, representation and coordination of refugees finds early examples even before the adoption of the GRC. In 1944 the Jewish Telegraphic Agency reports about a “Jewish Refugee parliament in Italy helping the work of relief and rehabilitation.”53 The article describes that the parliament builds on structures of elected representatives and committees within the communities and points out its link with the Joint Distribution Committee.

47 Simon Turner, What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp, Journal of Refugee Studies 29 (2016) 2, 139 (140). 48 CoE Parliamentary Assembly Recommendation 1500 (2001), Resolution 1459 (2005), and Recommendation 1714 (2005). 49 These are Albania, Denmark, Finland, Iceland, Italy, Netherland, Norway and Sweden. 50 Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level (CPFPLLL). 51 Article 6 CPFPLLL. 52 Article 5 CPFPLLL. 53 Jewish Telegraphic Agency, Jewish Refugee “Parliament” in Italy Helping Work of Relief and Rehabilitation, August 30, 1944.

102   Refugees’ political voice As such, it worked on the one hand as a “channel of distributing relief,” and on the other hand allowed to make available “personal experiences and knowledge.” Bodies of separate representation are conceivable channels of political voice either for refugees specifically, or for foreign residents more generally. Such committees for the representation of foreign residents were set up in several states during the second half of the twentieth century.54 The Council of European Municipalities and Regions (CEMR) recommended in 1964 that advisory councils of foreigners should be introduced.55 Belgium was pioneering in that regard, creating consultative communal councils of foreigners in several villages, followed by Germany, Luxembourg, the Netherlands and France.56 While most committees represent foreign residents in general, a particular representation of refugees within the committees has been debated and introduced in some cases.57 A “Representative Assembly for Foreign Residents” exists in Kawasaki, Japan, as Stephen Day describes.58 The role ascribed to those bodies of special representation varies. At the outset, the aim of establishing such councils was for the perspectives and experiences of foreigners to inform the political process. Such a function of informing the political process is comparable to an expert body. Given the structural absence of migrants’ voices in the political institutions, committees can convey knowledge about problems and needs. Alongside this role, the representative bodies can also be seen as a form of political representation and voice, although to a limited extent. Committees of special representation enable arguments and opinions of persons otherwise not democratically represented to enter the conversation. Day speaks in a related manner of a functional and a normative role of the Representative Assembly, contributing information and improving social peace.59 As a channel for refugee’s political voice the role of special representation bodies is limited yet not neglectable. First, it must be underlined that the role of such bodies in local politics only consultative. This is obvious as the councils would otherwise bypass legislative decisions about the scope of voting rights and  endow persons with a direct influence. Nonetheless, the representative

54 Cf. for an overview for Europe Council of Europe (ed.), Foreigners’ Integration and Participation in European Cities: Proceedings (2004). 55 Marc Wagner, Der Ausländerbeirat (2000), 32. 56 Catherine Wihtol de Wenden, Droits politiques des étrangers non communautaires: les cheminements de l’accès des étrangers à la citoyenneté locale, Migrations Société 146 (2013) 2, 69 (71). 57 Cf. § 2 para. 2 No. 2 of the Statute of the Foreign Residents and Migration Council, Heidelberg [Satzung für den Ausländerrat/Migrationsrat in der Stadt Heidelberg]. For the judgment in which a claim for interim legal protection against the statute was rejected cf. VG Karlsruhe, decision from January 29, 2015, 7 K 57/15. 58 Stephen Day, The Surprising Longevity of Kawasaki’s Representative Assembly for Foreign Residents: An Institutionalist Account, Social Science Japan Journal, 21 (2018) 1, 27. 59 Ibid.

Institutions of political participation   103 a­ ssemblies can yield some political influence, even though there is ultimately little possibility to exercise pressure or control. Such pressure might emerge, however, in combination with visibility outside the formal political process. Bodies of special representation can form a basis for alliances, draw attention to matters and address a wider public. What limits the dimension of political voice, second, is the extent of representation in such bodies. The representation qua foreigner, or qua refugee, cannot be equated with a general voice in the political process. Even where elections to such councils take place, the representation remains tied to the position as foreign resident. That can be viable where it communicates specific concerns, but it cannot replace the inclusion in general political processes, which do not restrict the relevance of opinions to a certain area. In a study of foreign resident councils in Germany, Christiane Bausch shows that the representation of persons therein is mostly descriptive in nature.60 Unlike the general political process that is channeled through elected representatives but does not assign anyone to a political group based on a legal identity, the councils of special representation are based on such identity. While representation based on group membership can help forming a visible position on certain issues of the respective group, it should not conceal the diversity in experiences, interests, and affiliations of foreign residents in general and refugees in particular. Despite these limitations, representative committees can be beneficial institutions. They recognize the otherwise lack of political representation and give room for perspectives of residents without citizenship. The few existing studies show that the concrete structures such as how representation is organized are influential for the political significance. A current debate in Hesse, Germany, about a law meant to improve participation in foreign resident councils highlights that the topicality of the issue but also the problems in reception.61 Reflections in that vein should also be situated in broader considerations about the role of local politics. Especially in the past years, cities have taken a leading role in including migrants and refugees.62 Initiatives on a local level such as special bodies of representation can spearhead the wider endeavor of a better political inclusion of refugees.

60 Christiane Bausch, Inklusion durch politische Selbstvertretung? Die Repräsentationsleistung von Ausländer- und Integrations(bei)räten (2014), 123. 61 See the draft law from December 3, 2019, Hessischer Landtag Drucksache 20/1644, Gesetzentwurf: Gesetz zur Verbesserung der politischen Teilhalbe von ausländischen Einwohnerinnen und Einwohnern an der Kommunalpolitik sowie zur Änderung kommunal- und wahlrechtlicher Vorschriften. The draft law reacts to the very low participation rate and the resulting lack of foreign resident councils in many towns. 62 Cf. Jeroen Doomernik/Djoeke Ardon, The City as an Agent of Refugee Integration, Urban Planning 3 (2018) 4, 91; Margit Mayer, Cities as Sites of Refuge and Resistance, European Urban and Regional Studies 25 (2017) 3, 232.

104   Refugees’ political voice

Bibliography Bausch, C., Inklusion durch politische Selbstvertretung? Die Repräsentationsleistung von Ausländer- und Integrations(bei)räten (2014, Baden-­Baden: Nomos). Beckman, L., Citizenship and Voting Rights: Should Resident Aliens Vote?, Citizenship Studies 10 (2006) 2, 153, doi: 10.1080/13621020600633093. Benhabib, S., The Rights of Others (2004, Cambridge: Cambridge University Press). Council of Europe (ed.), Foreigners’ Integration and Participation in European Cities: Proceedings (2004, Strasbourg: Council of Europe). Crawford, J., Brownlie’s Principles of Public International Law (8th revised edition 2012, Oxford: Oxford University Press). Day, S., The Surprising Longevity of Kawasaki’s Representative Assembly for Foreign Residents: An Institutionalist Account, Social Science Japan Journal 21 (2018) 1, 27, doi: 10.1093/ssjj/jyx031. Doomernik, J./Ardon, D., The City as an Agent of Refugee Integration, Urban Planning 3 (2018) 4, 91, doi: 10.17645/up.v3i4.1646. Earnest, D. C., Voting Rights for Resident Aliens: A Comparison of 25 Democracies (2003), paper delivered at the 2003 annual meeting of the Northeast Political Science Association and the International Studies Association Northeast, http://ww2.odu. edu/~dearnest/pdfs/Earnest_ISANE_2003.pdf. Earnest, D. C., Old Nations, New Voters (2008, Albany: Suny Press). Fischer, J., The Political Rights of Refugees and Displaced Persons: Enfranchisement and Participation, in: Voting from Abroad. The International IDEA Handbook (2007, Stockholm: International IDEA/Mexico City: Federal Electoral Institute of Mexico), 151. Fripp, E., Nationality and Statelessness in the International Law of Refugee Status (2016, Oxford: Hart Publishing). Grace, J./Fischer, J., Enfranchising Conflict-­Forced Migrants: Issues, Standards, and Best Practices, Participatory Elections Project, discussion paper (2003), www.geneseo. edu/~iompress/Archive/Outputs/Standards_Final.pdf. Jewish Telegraphic Agency, Jewish Refugee “parliament” in Italy Helping Work of Relief and Rehabilitation, August 30, 1944, www.jta.org/1944/08/30/archive/jewish-­ refugee-parliament-­in-italy-­helping-work-­of-relief-­and-rehabilitation. Long, K., Voting with their Feet. A Review of Refugee Participation and the Role of UNHCR in Country of Origin Elections and Other Political Processes, UNHCR Policy Development and Evaluation Service (2010, Geneva: UNHCR). Marx, R., Article 34, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011, Oxford: Oxford University Press), 1451. Mayer, M., Cities as Sites of Refuge and Resistance, European Urban and Regional Studies 25 (2017) 3, 232, doi: 10.1177/0969776417729963. Navarro, C./Morales, I./Gratschew, M., External Voting: A Comparative Overview, in: Voting from Abroad. The International IDEA Handbook (2007, Stockholm: International IDEA/Mexico City: Federal Electoral Institute of Mexico), 11. Peter, F., The Human Right to Political Participation, Journal of Ethics and Social Philosophy 7 (2013) 2, 1. Raskin, J., Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, University of Pennsylvania Law Review 141 (1993) 4, 1391.

Institutions of political participation   105 Rogerson, P., Habitual Residence: The New Domicile?, International and Comparative Law Quarterly 49 (2000) 1, 86. Turner, S., What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp, Journal of Refugee Studies 29 (2016) 2, 139, doi: 10.1093/jrs/fev024. United Nations, UN Ad Hoc Committee on Refugees and Stateless Persons, A Study of Statelessness (1949), available at: www.refworld.org/docid/3ae68c2d0.html Wagner, M., Der Ausländerbeirat (2000, Frankfurt: Peter Lang). Wihtol de Wenden, C., Droits politiques des étrangers non communautaires: les cheminements de l’accès des étrangers à la citoyenneté locale, Migrations Société 146 (2013) 2, 69. Ziegler, R., Voting Rights of Refugees (2017, Cambridge: Cambridge University Press), doi: 10.1017/9781316671443.

6 The role of associative rights for refugees’ political voice

Refugee protests and the role of associative rights Public protests by refugees in numerous places over the past years have highlighted the role of this form of political action. One notable case was when, in 2005, around 2500 Sudanese refugees protested over four months in Cairo, demanding better living conditions and resettlement.1 The protest was directed also at the UNHCR office and received international attention. It ended tragically when a violent confrontation with the police left several people dead.2 In 2012 and 2013, large refugee protests took place in Germany, first prompted by the suicide of an asylum seeker in a Bavarian asylum residence.3 The protests against bad living conditions and rules restricting free movement included hunger strikes and led to marches first within Bavaria and later to Berlin. During the same time, protests took place in Austria, with refugees setting up a protest camp in the city center of Vienna end of 2012, bringing to attention their demands for better living conditions and free choice of residence while awaiting an asylum decision.4 These protests were the cue for Elfriede Jelinek’s theater piece “Charges” (“Die Schutzbefohlenen”), which in the following years was performed in multiple cities and became a cultural reflection space regarding flight, border violence, and access to membership.5 In summer 2015, hundreds of refugees resisted their encampment in Hungary and demanded the right to move on to other European states. In what

1 Cf. Carolina Moulin/Peter Nyers, “We Live in a Country of UNHCR” – Refugee Protests and Global Political Society, International Political Sociology 1 (2007) 4, 356. 2 UNHCR Press Release, UNHCR shocked, saddened over Cairo deaths, December 30, 2005. 3 See Abimbola Odugbesan/Helge Schwiertz, “We Are Here to Stay” – Refugee Struggles in Germany Between Unity and Division, in: Sieglinde Rosenberger/Verena Stern/Nina Merhaut (eds.), Protest Movements in Asylum and Deportation (2018), 185. 4 Monika Mokre, “We Demand Our Rights!” The Refugee Protest Camp Vienna, in: Rosenberger/Stern/Merhaut (eds.), Protest Movements in Asylum and Deportation (2018), 205. 5 Silke Felber, (Un)making Boundaries: Representing Elfriede Jelinek’s Charges (the Supplicants), Critical Stages 14 (2016); Steve Wilmer, Greek Tragedy as a Window on the Dispossessed, New Theatre Quarterly 33 (2017) 3, 277.

The role of associative rights   107 became called the “march of hope,” they began walking by foot from Budapest towards the Austrian-­Hungarian border, met by a wave of support.6 The political responses were later the subject of extensive controversies; yet the events of those days exemplified also the influence of refugees’ political agency. The list of refugee protests could be continued for a while. In summer 2019, around 3000 Rohingya refugees in Bangladesh demanded the restoration of their citizenship in Myanmar.7 In the fall of 2019, several hundred refugees blocked a border bridge between the US and Mexico, protesting the new US-­American asylum laws that meant significant delays in asylum procedures and left people waiting in Mexico.8 In February 2020, around 2000 refugees on the island Lesbos rallied against disastrous conditions in overcrowded camps and surroundings, their immobilization on the Island and the stagnated processing of asylum claims.9 All these are just examples of political actions by refugees in recent years, marking key controversies and developments. Those political activities contrast the far-­reaching exclusion of refugees from formal political participation. As the previous chapter has discussed, institutional channels for refugees’ political voice are rare and narrow. In some cases, voting rights are accessible independently from citizenship status, mostly for the local level, after a certain duration of presence. There are examples for special bodies of representation, either for residents without citizenship, or specifically for refugees. Yet the access to these channels and the political influence exercised through them remain limited. All the more significant for refugees are spaces for non-­institutionalized political action. Such action is not limited to protest, and what is counted under protest may vary. The chapter examines the role of law for those non-­institutionalized forms of politics. Thereby, the right to assembly and the right to association are central. With Ulrich K. Preuß, I will refer to these safeguards combinedly as “associative rights.”10 At first sight, law might be identified mostly with formal entitlements: citizenship regimes, voting rights and the like. In that sense, law is the object of contestations. At the same time, law also secures spaces for contesting those entitlements. Especially the right of assembly and the right of association are legal guarantees that protect political action. This does not mean that the law is always decisive for where and how political expression and contestation take

  6 Cf. John Domokos, Refugees, Hungarians and Me: Walking Together, Transformed Together, The Guardian, September 11, 2015.   7 Associated Press, Rohingya Refugees Protest Exodus, Demand Rights in Myanmar, Voice of America, August 25, 2019.   8 Deutsche Welle, Protesting Asylum-seekers Block US–Mexico Border Bridge, October 10, 2019.   9 Katy Fallon, Refugee children amid crowds of protesters tear gassed on Lesbos, Al Jazeera, February 4, 2020. 10 Ulrich K. Preuß, Associative Rights (The Rights to the Freedoms of Petition, Assembly, and Association), in: Michel Rosenfeld/András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (2012), 949.

108   Refugees’ political voice place. Nonetheless, the field of associative rights reflects how law organizes and delimitates the spaces. That there exist delimitations is not illegitimate: there are good reasons why, for instance, assembling in public might be allowed only without carrying arms. Legal regulations in the field of associative rights work to secure political equality, yet they are also a way of distributing political visibility and power. Part II of the book has discussed how in a democratic order, law and politics stand in a mutual relationship. The ideal of non-­domination requires that a person is not permanently subjected to rules and power on which she has no influence. The concepts of citizenship and democracy link the demands of openness and closure, of inclusion and institutions. On the one hand, democracy requires formal rules and procedures that ensure equal influence of citizens, and in that sense establish equality. On the other hand, democracy cannot be limited to a closed scope of persons without contradicting its very bases. The negotiation of boundaries is an inherent part of democracy. Thereby, no pre-­political standard exists to decide who should have a political voice in certain issues and places. Persons claiming a political voice or appearing as political actors outside assigned places contribute to the dynamic that inherently belongs to democracy. For that reason, the political actions of those not formally citizens of a place are of interest from a theoretical vein. It is at these edges that the dynamic of democracy is visible in concrete demands. Especially in recent years, the protests of migrants, undocumented persons and refugees have received considerable attention in political theory.11 Different approaches have focused on the role of mobility rights for citizenship,12 on the transformatory nature of migrants’ political claims,13 or have suggested a perspective on the acts, instead of the actors, of citizenship.14 These approaches all aim to grasp the nature of politics at the margins of institutional membership. The role of law has received relatively little attention in these considerations. The present chapter seeks to shed light on how law influences political activities of refugees. The next section looks at associative rights in international law and the subsequent section adds a perspective of comparative constitutional law. The last section discusses how refugee status might affect the exercise of those rights and how particularly rules about freedom of movement affect possibilities for political action.

11 Anne McNevin, Contesting Citizenship: Irregular Migrants and New Frontiers of the Political (2011); Engin Isin, Citizenship without Frontiers (2012), 94; Helge Schwiertz, Transformations of the Undocumented Youth Movement and Radical Egalitarian Citizenship, Citizenship Studies 20 (2016) 5, 610. 12 Peter Nyers/Kim Rygiel, Introduction, in: Peter Nyers/Kim Rygiel (eds.), Citizenship, Migrant Activism and the Politics of Movement (2012), 1. 13 Anne McNevin, Ambivalence and Citizenship: Theorising the Political Claims of Irregular Migrants, Millennium: Journal of International Studies 41 (2013) 2, 182. 14 Engin Isin, Theorizing Acts of Citizenship, in: Engin Isin/Greg Nielsen (eds.), Acts of Citizenship (2008), 15.

The role of associative rights   109

Associative rights in international law Political rights are those rights that protect a person’s possibility to partake in the political affairs of a community. As discussed in the third chapter in terms of the different elements of citizenship, many rights relate in some way to the possibility of political participation. The right not to be detained without legal basis, for instance, certainly relates to participation in politics in the sense that an infringement will impact a persons’ political involvement. Yet political rights can be understood to concern the political process more explicitly. The right to vote and to stand for election are the most eminent political rights. Beside that the right to petition counts among the core political rights. The right to assembly and the right to association are one step further removed yet nonetheless belong to the political rights. Not all assemblies and associations are concerned with political affairs, but the right to assembly and to association are core to a democratic political community. For a democracy, the room for the formation and competition of political opinions outside the formal political institutions is crucial. Such formation and competition of political opinions centrally relies on the ability to assemble and to associate. Several international human rights treaties contain provisions on the right to assembly and the right to association. The 1948 Universal Declaration of Human Rights (UDHR) states in its Article 20 that “[e]veryone has the right to freedom of peaceful assembly and association.”15 A right to petition had been discussed but was ultimately not included in the UDHR.16 The UDHR places the right to assembly and to association between the freedom of opinion and expression in Article 19 and the right to take part in the government in Article 21 para. 1. This reflects well the position of those rights. Associative rights are one step closer to the core of politics than the freedom of opinion and expression as they concern collective processes, yet they are distinct from the explicit right to participation. The 1950 European Convention of Human Rights (ECHR) equally combines the right to assembly and to association in one single article. Its Article 11 provides that “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” On the level of the United Nations, following the non-­binding UDHR, two binding rights covenants were negotiated and adopted in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and

15 Article 20 of the Universal Declaration of Human Rights, December 10, 1948, UN GA Res. 217 A (III). 16 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999), 304.

110   Refugees’ political voice ­ ultural Rights (ICESCR).17 The ICCPR contains separate provisions on the C freedom of association and the freedom of assembly. Its Article 21 reads: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22, in turn, reads: (1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. (2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. (3) […] Similarly, the 1969 American Convention on Human Rights (ACHR) contains articles on the “Right of Assembly” and the “Freedom of Association”: its Article 15 provides that “[t]he right of peaceful assembly, without arms, is recognized. […],” its Article 16 that “[e]veryone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. […].” The 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) contains provisions on the right to association and to assembly in its Articles 10 and 11. As in the cited provisions of the ICCPR, the corresponding provisions in the ECHR, the ACHR, and in the Banjul Charter equally foresee possible restrictions within the frame of the proportionality principle. The freedom of assembly protects the “right to gather intentionally and temporarily for a specific purpose.”18 The explicit condition of peaceful assemblies is widely shared, also by state constitutions. The freedom of assembly covers assemblies that are open to the public, including demonstrations and protests,

17 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), December 16, 1966, UN GA Res. 2200A (XXI). 18 Manfred Nowak, CCPR-Commentary (1989), Article 21, Marginal No. 5 (p. 397).

The role of associative rights   111 as well as closed ones.19 It not only prohibits the state to interfere with these activities, but also obliges the state to protect an assembly against interferences by third parties.20 The right to association in turn protects the forming of more continuous groups, including but not exclusively in pursuit of political exchange and undertakings. The above-­cited formulations of the freedom of assembly and of association correspond to the guarantees in many state constitutions. The two rights regularly appear next to each other,21 highlighting their joint role for the political process and the participation therein. Unlike the freedom of opinion and of expression, which primarily protect an individual liberty, the right to assembly and to association relate to collective aspects of the political process. The democratic role of these rights and their particular importance for minorities has been highlighted in the context of the ECHR.22 Thinking about the role these guarantees play for refugees’ access to political voice, the question is whether and how they benefit refugees legally and factually. Regarding the legal reach, none of the human rights treaties limit the personal scope of those rights – unlike some state constitutions as will be examined closer in the following section. Possible restrictions in the interest of national security, public safety, or public order, might appear in the context of migrants’ political activities yet have to be justified with reference to these principles in each case. From the Human Rights Committee, little jurisprudence exists on the right to assembly and association.23 In the framework of the ECHR, Article 16 explicitly foresees the possibility of states to restrict the political activities of non-­nationals.24 However, there have been only two cases in which the applicability of this provision has been considered by the court, and in both cases it was rejected.25 In summary, associative rights are guaranteed in all major human rights treaties in a broad manner. While restrictions may be placed on the exercise of

19 Ibid. 20 Ibid., Article 21, Marginal No. 11 (p. 400). 21 Cf. e.g. Articles 26 and 27 of the Belgian Constitution, Articles 17 and 18 of the Italian Constitution, Articles 78 and 79 of the Danish Constitution, Articles 19 and 20 of the Constitution of the Czech Republic and Articles 57 and 58 of the Polish Constitution. 22 William A. Schabas, The European Convention of Human Rights – a Commentary (2015), 491 with further references. 23 A General Comment on the right to assembly was in preparation at the end of 2019, Human Rights Committee: General Comment No. 37, Article 21: Right of Peaceful Assembly, draft adopted on first reading during the 127th Session (October 14 – November 8, 2019). 24 Article 16 ECHR reads: “Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.” 25 European Court of Human Rights (ECtHR), Piermont v. France, Application no. 15773/89; 15774/89, April 27, 1995; European Court of Human Rights (ECtHR), Perinçek v. Switzerland, Application no. 27510/08, Grand Chamber decision, October 15, 2015.

112   Refugees’ political voice these rights in the interest of public concerns such as national security, public safety and order, these guarantees offer an important legal basis for political activities beyond formal participation. For the political voice of refugees, these rights secure a space. The actual benefit from these rights, however, depends on many additional factors: particular local and national rules regarding assemblies and associations, the effect that an undocumented status or other precarious residency status can have on the choice to exercise these rights, the limits imposed on free movement that also impact the ability to assemble or meet in associations.

Associative rights and citizenship status Associative rights have a particular significance for those without access to institutional channels of political participation. While for citizens, associative rights complement institutional channels of participation such as voting rights, for persons without citizenship status, they often represent the only available avenue. Against that background, it is interesting to note that associative rights have traditionally been limited in many state constitutions to nationals or citizens.26 As examples from the European context, the Italian, the Portuguese or the Danish Constitution guarantee the right to assembly and to association to citizens.27 The Belgian, the Greek, or the German Constitution refer to their nationals as bearer of those rights.28 More recently adopted constitutions, such as the 1997 Constitution of Poland or the 1992 Constitution of the Czech Republic, grant associative rights to “everybody” without limitations to citizens or nationals.29 That those formulations are not a matter of coincidence is underscored by the fact that different rights refer to a different scope of persons.30 There are three different formulations in constitutions regarding the scope of rights-­holder: a reference to citizens, to nationals and to everybody. The reference to citizens or nationals may be seen as a terminological variation or to indicate a different emphasis. The main opposition, however, is between a restricted and an unrestricted personal scope. Many constitutions outside Europe

26 For an overview also Hélène Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995), 156. 27 Cf. Articles 17 and 18 of the Italian Constitution, Articles 45 and 46 of the Portuguese Constitution, Articles 78 and 79 of the Danish Constitution. 28 Cf. Articles 26 and 27 of the Belgian Constitution, Articles 11 and 12 of the Greek Constitution, Articles 8 and 9 of the German Basic Law. 29 Cf. Articles 57 and 58 of the Constitution of Poland, Articles 19 and 20 of the Constitution of the Czech Republic. 30 Cf. for instance in the Belgian Constitution the right to petition (Article 28) that is granted to “everybody” in contrast to the previous “Belgian rights.” Cf. also the opposite case in the Spanish Constitution, which knows a right to petition only for “Spaniards” (Article 29), but the right to assembly and to association for “everybody” (Articles 21 and 22).

The role of associative rights   113 ­ uarantee associative rights without limitations in the personal scope: the g Constitution of the United States mentions the freedom of assembly in its First Amendment,31 which in contrast to other provisions, such as the right to vote or to run for federal elective office, is not explicitly limited to citizens.32 The South-­African Constitution equally grants the right to assemble and to demonstrate, as well as the right to association to “everyone.”33 The Constitution of Brazil enumerates the freedom of assembly and of association among the rights guaranteed to “all persons.”34 The Japanese Constitution chooses a formulation without personal limitation for the right to assembly and to association,35 as does the 2014 Constitution of Tunisia.36 The Constitution of India limits associative rights to citizens.37 The actual scope of guarantees must be qualified in two ways: first, by taking into account the scope of associative rights granted on the level of general laws, and second, by reckoning in the impact of international law. In case of restricted constitutional guarantees, general laws can extend the scope of persons protected. Yet the constitutional status of rights marks their stability and often bears effects on the conditions to exercise these rights. Moreover, international guarantees on associative rights are not restricted with view to nationality or citizenship. How directly international law takes effect, varies in the different domestic legal systems and depending on the international treaty.38 For states bound by the ECHR, for instance, its Article 11 yields significant effects in extending the scope of protection in associative rights to all persons under the state’s jurisdiction. For member states of the EU, the corresponding provision in Article 12 of the Charter of Fundamental Rights of the European Union bears effects where they apply EU law. Nonetheless, the differences in the personal scope of associative rights in constitutions are noteworthy as they highlight the political weight ascribed to them. In justifying a narrow scope, it has been argued that given their democratic purpose, associative rights were necessary only for citizens.39 This argument presupposes, however, that democracy was a process only among full members of the community. As discussed in Chapters 3 and 4, the concept of

31 The freedom of association finds no explicit mention, yet the First Amendment also covers the founding of and participation in expressive associations. For the historical background Ulrich K. Preuß, op. cit., 954. 32 David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, Thomas Jefferson Law Review 25 (2003), 367 (370), with a discussion of an implicit limitation at 377. 33 Chapter 2 Sections 17 and 18 of the Constitution of South Africa. 34 Article 5 XVI and XVII of the Constitution of Brazil. 35 Article 21 of the Constitution of Japan. 36 Articles 35–37 of the Constitution of Tunisia. 37 Article 19 of the Constitution of India. 38 André Nollkaemper, The Duality of Direct Effect in International Law, European Journal of International Law 25 (2014) 1, 105. 39 For a discussion and rejecting this argument David Cole, op. cit., 377.

114   Refugees’ political voice democracy cannot be understood but through a tension: the tension between formal entitlement and institutions on the one hand side and demands of inclusion and an ongoing dynamic at the boundaries on the other. For enabling this dynamic, associative rights are important precisely for those without full political membership. The reluctance to grant political rights to non-­citizens, which some of these constitutions show, was apparent also during the drafting of the Geneva Refugee Convention.40 The Convention contains few explicit provisions regarding the political rights of refugees.41 Its Article 15 deals with the right to join associations, yet demands only that refugees receive most favorable treatment granted to other foreigners, and limits the right to “non-­political and non-­profit-making associations and trade unions.” The initial proposal for Article 15 had been much broader, but state parties in the preparatory sessions were opposed to granting refugees political rights.42 At the same time, a proposal to include an explicit prerogative of states to limit the political activities of refugees was rejected in the negotiations, the Ad hoc Committee underlining that such a prerogative did not need explicit stating but was implied in the sovereign rights of states.43 Ultimately, the narrow formulation in the GRC is insignificant today given the human rights treaties passed thereafter. Refugees hold the freedom of assembly and of association under international law, and in most states as a constitutional right, or at least under general laws.

Refugee situations and the exercise of associative rights For refugees’ political voice, law matters not only in guaranteeing the right to assemble and to found and join associations, but equally in limiting the actual possibilities to exercise these rights. The situation of being a refugee and corresponding rules can impact the freedom of assembly and to association in many ways. Oftentimes, an undocumented status will keep persons from assembling, joining associations, or otherwise engaging in political activities. Even if persons are registered as asylum seekers, they might fear that such political involvement could harm their asylum prospects. Especially public protests can, without any faults, involve encounters with police forces and persons without a stable resident status will often be fearful of such encounters, out of an actual or a perceived vulnerability. While public visibility is often necessary for influence and therefore an aim of political activities, precisely this visibility can be problematic for refugees.

40 Cf. James C. Hathaway, The Rights of Refugees under International Law (2005), 885. 41 Ruma Mandal, Political Rights of Refugees, UNHCR Legal and Protection Policy Research Series (2003), 1. 42 Paul Weis (ed.), The Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (1995), Article 15. 43 Ruvi Ziegler, Voting Rights of Refugees (2017), 44, with further references.

The role of associative rights   115 A consideration of the effects of refugee status, asylum seeker status, or undocumented status on the effective enjoyment of associative rights must remain tentative and imprecise, since the situation of persons depends not only on respective national and sometimes regional legislation but also on numerous individual circumstances. This section will therefore limit itself to considering one particular aspect in which refugee law provisions intersect with the exercise of associative rights: rules concerning freedom of movement within the host state. At the outset, freedom of movement within a state is recognized as a general right by Article 12 ICCPR. Also, the GRC states in its Article 26 that [e]ach Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. These broad guarantees of freedom of movement in international law stand in contrast to numerous rules and practices that limit refugees’ free movement. The most severe form of limiting free movement is detention. As a general rule, the Geneva Refugee Convention calls upon states to not impose penalties for refugees based on their illegal entry or presence.44 Detention cannot be justified as a punitive measure but only under other rationales. Yet the detention of asylum-­seekers and refugees is a widespread practice in many states. Australia’s model of off-­shore detention is one of the most elaborate systems in that regard, which has prompted severe criticism from international lawyers.45 In the US, detention of asylum seekers has been a practice for a long time and was scaled up under the Trump administration.46 In the European Union, asylum seekers are detained in so-­called hotspots, on Greek islands and in other places. Detention has been the subject of several cases before the European Court of Human Rights,47 and received close scrutiny in particular in the case of minors.48 The EU Reception Conditions Directive allows detaining asylum seekers under

44 Article 31 para. 1 GRC. 45 Daniel Ghezelbash, Refuge Lost. Asylum Law in an Interdependent World (2018), 43. 46 Ibid., 35. 47 Maria Pichou, Reception or Detention Centres? The Detention of Migrants and the EU ‘Hotspot’ Approach in the Light of the European Convention on Human Rights, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft (KritV) 99 (2016) 2, 114 (118). 48 Cf. European Court of Human Rights (ECtHR), Sh.D. and others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, Application no. 14165/16, June 13, 2019.

116   Refugees’ political voice certain conditions,49 which has been criticized from various sides.50 In general, the detention of migrants forms a serious concern that civil society organizations have taken on documenting and fighting against.51 Detention affects the rights of refugees in many ways, and it certainly impacts the possibility to exercise associative rights. Since the rights of assembly and of association depend on a person’s free movement and the possibility to meet with others, detention hinders associative rights to a great extent. This does not exclude that political activities, including assemblies and protests, might take place to some limited extent even under those conditions. There are examples in which persons exercise their freedom of assembly against the explicit denial.52 Yet detention limits the exercise of associative rights severely. Beside detention, there are other rules that restrict free movement. Within the European Union, Germany and Austria have provisions on a so-­called residential obligation (Residenzpflicht) for persons in the asylum process. Under those rules, persons are allowed to move only within a restricted area. It must be distinguished from the more widespread obligation for asylum seekers to take a stable residence and communicate the address with the state authorities, as well as from the obligation to live in an assigned residence for a certain duration. The residential obligation is problematic for associative rights because it not only regulates the place of residence but restricts any movement beyond the designated zone. In Germany, a residential obligation for asylum seekers has been in place since 1982. It was limited to three months for a while but currently extends again to the whole asylum process.53 In most German states (Länder), the designated zone consists of the whole state; in Bavaria and Saxony however, movement is restricted further to smaller zones within the state. In that regard, too, the EU Reception Conditions Directive offers a broad frame, allowing for geographic restrictions under certain conditions. In its Article 7, the Directive states: 1. Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and

49 Article 8 et seq. of the Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of applicants for international protection, June 26, 2013 (recast) (Reception Conditions Directive). 50 For an examination with regard to the limitations imposed by the ECHR see Nuala Mole/ Catharina Harby, Immigration, Asylum and Detention, Paper of the AIRE Centre in cooperation with ECRE (2004); for UNHCR’s position see UNHCR, Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast) (2015). 51 See in particular Global Detention Project, www.globaldetentionproject.org. 52 Judith Butler, Notes Toward a Performative Theory of Assembly (2015), 138. 53 § 56 of the German Asylum Act [Asylgesetz].

The role of associative rights   117 shall allow sufficient scope for guaranteeing access to all benefits under this Directive. 2. Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection. (…)54 The Directive must be interpreted in accordance with the rules of the GRC, to which all member states of the European Union are also state parties, and to which EU law explicitly refers as the overarching framework for any regulation in the area of asylum and refugee protection.55 UNHCR has considered the provision not to be in contradiction with the GRC, as some limitations can be deemed necessary as far as they remain within an appropriate scope.56 Moreover, it can be argued that restrictions for asylum seekers are not in contradiction with Article 26 GRC because the latter only applies to recognized refugees. However, the GRC does not assume a distinction between refugees and asylum seekers. Especially in light of the long duration of asylum procedures, the basic rationale of the GRC rule should be taken into account and the restrictions on free movement minimized. Freedom of movement has an essential function for the right to assembly. Not only is free movement necessary for meeting with others, but also will the scope of free movement often be decisive for the reach of political action. Protests typically take place in larger towns or cities, seeking to be visible to more people and bringing together concerns from several places. Rules that hinder persons to travel to these places thus directly affect their access to political action. Many of the refugee protests of recent years explicitly raised the issue of free movement. The 2012/2013 protests in Germany began in Bavaria, a region with very restrictive regulations. The protesters took their concerns to the cities, objecting to the residential obligation and the politics of remote asylum seeker homes. A march to Berlin and the creation of an open camp in the city center further marked the endeavor to bring concerns to public notice. Refugees from various European countries gathered in a protest march to Brussels, demanding a right to free movement. Limitations on free movement also affect the effective enjoyment of the right to association. Denying the possibility of traveling to larger cities or other towns will oftentimes curtail the possibility of joining associations. Article 15 GRC

54 Article 7 Reception Conditions Directive (2013/33/EU). Paragraphs 3–5 foresee particular requirements in regulating the residence of asylum seekers as well as the duty to provide the address to state authorities. 55 Article 78 para. 1 Treaty for the Functioning of the European Union (TFEU). 56 Cf. UNHCR, Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of June 26, 2013 laying down standards for the reception of applicants for international protection (recast), 14.

118   Refugees’ political voice calls states to guarantee refugees the freedom of association, as far as “non-­ political associations” are concerned. The term “political” must be interpreted narrowly, in the sense of associations engaging explicitly with the political process.57 Not any political dimension of the cause renders an association political in that sense, otherwise the provision would be mostly meaningless. Article 15 GRC does not cover the joining of political parties.58 However, it includes trade unions in the scope of association;59 also the ECHR specifically mentions trade unions in the guarantee of associative rights.60 Associative rights for refugees can, moreover, broaden the attention to politics that do not build on, or aim at, immediate visibility. Whereas visibility in public is the usual form of protest for citizens in a state, it is much less obvious for persons whose legal status is unstable and who therefore fear negative consequences from being visible in public. Along these lines, Imogen Tyler and Katarzyna Marciniak have pointed out the differing strategies of visibility and invisibility in the protests of migrants.61 The right to associate and the actual possibility of exercising this right are significant in allowing refugees to exchange opinions with others and create bonds of solidarity. Thinking about the boundaries of political rights and the way law structures the negotiation of those boundaries, attention must be paid to those differing forms and conditions. Political activities of refugees should not be read narrowly as confined to claiming asylum or protesting living conditions but must be seen in the wider context of political expression and opinions.62

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57 Michael Teichmann, Article 15, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011), para. 64, 65. 58 Ibid. 59 Article 15 GRC. 60 Article 11 para. 1 ECHR. 61 Imogen Tyler/Katarzyna Marciniak, Immigrant Protest: An Introduction, Citizenship Studies 17 (2013) 2, 143. 62 Cf. Natasha Saunders, Beyond Asylum Claims: Refugee Protest, Responsibility, and Article 28 of the Universal Declaration of Human Rights, The International Journal of Human Rights 22 (2018) 7, 847 (848).

The role of associative rights   119 Domokos, J., Refugees, Hungarians and Me: Walking Together, Transformed Together, The Guardian, September 11, 2015, www.theguardian.com/commentisfree/2015/ sep/11/refugees-­hungarians-me-­walking-together. Fallon, K., Refugee Children Amid Crowds of Protesters Tear Gassed on Lesbos, Al Jazeera, February 4, 2020, www.aljazeera.com/news/2020/02/refugee-­childrencrowds-­protesters-tear-­gassed-lesbos-­200204133656056.html. Felber, S., (Un)making Boundaries: Representing Elfriede Jelinek’s Charges (the Supplicants), Critical Stages 14 (2016), www.critical-­stages.org/14/unmaking-­boundariesrepresenting-­elfriede-jelineks-­charges-the-­supplicants. Ghezelbash, D., Refuge Lost. Asylum Law in an Interdependent World (2018, Cambridge: Cambridge University Press). Hathaway, J. C., The Rights of Refugees under International Law (2005, Cambridge: Cambridge University Press). Isin, E., Theorizing Acts of Citizenship, in: Engin Isin/Greg Nielsen (eds.), Acts of Citizenship (2008, London: Zed Books), 15. Isin, E., Citizenship without Frontiers (2012, London: Bloomsbury). Lambert, H., Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995, Leiden: Martinus Nijhoff ). Mandal, R., Political Rights of Refugees, UNHCR Legal and Protection Policy Research Series (2003, Geneva: UNHCR). McNevin, A., Contesting Citizenship: Irregular Migrants and New Frontiers of the Political (2011, New York: Columbia University Press). McNevin, A., Ambivalence and Citizenship: Theorising the Political Claims of Irregular Migrants, Millennium: Journal 41 (2013) 2, 182, doi: 10.1177/0305829812463473. Mole, N./Harby, C., Immigration, Asylum and Detention, Paper of the AIRE Centre in cooperation with ECRE (2004), www.ecre.org/component/downloads/downloads/83. html. Mokre, M., “We Demand Our Rights!” The Refugee Protest Camp Vienna, in: Sieglinde Rosenberger/Verena Stern/Nina Merhaut (eds.), Protest Movements in Asylum and Deportation (2018, Berlin: Springer), 205. Morsink, J., The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999, Philadelphia: University of Pennsylvania Press). Moulin, C./Nyers, P., “We Live in a Country of UNHCR” – Refugee Protests and Global Political Society, International Political Sociology 1 (2007) 4, 356, doi: 10.1111/j.1749-5687.2007.00026.x. Nowak, M., CCPR-­Commentary (1989, Kehl: Norbert P. Engel). Nollkaemper, A., The Duality of Direct Effect in International Law, European Journal of International Law 25 (2014) 1, 105. Nyers, P./Rygiel, K., Introduction, in: Peter Nyers/Kim Rygiel (eds.), Citizenship, Migrant Activism and the Politics of Movement (2012, Abingdon: Routledge), 1. Odugbesan, A./Schwiertz, H., “We Are Here to Stay” – Refugee Struggles in Germany Between Unity and Division, in: Sieglinde Rosenberger/Verena Stern/Nina Merhaut (eds.), Protest Movements in Asylum and Deportation (2018, Berlin: Springer), 185. Pichou, M., Reception or Detention Centres? The Detention of Migrants and the EU  ‘Hotspot’ Approach in the Light of the European Convention on Human Rights, ­Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 99 (2016) 2, 114. Preuß, U. K., Associative Rights (The Rights to the Freedoms of Petition, Assembly, and Association), in: Michel Rosenfeld/András Sajó (eds.), The Oxford Handbook of

120   Refugees’ political voice ­ omparative Constitutional Law (2012), 949, doi: 10.1093/oxfordhb/97801995786 C 10.013.0047. Schabas, W. A., The European Convention of Human Rights – a Commentary (2015, Oxford: Oxford University Press). Schwiertz, H., Transformations of the Undocumented Youth Movement and Radical Egalitarian Citizenship, Citizenship Studies 20 (2016) 5, 610, doi: 10.1080/ 13621025.2016.1182680. Saunders, N., Beyond Asylum Claims: Refugee Protest, Responsibility, and Article 28 of the Universal Declaration of Human Rights, The International Journal of Human Rights 22 (2018) 7, 847, doi: 10.1080/13642987.2018.1485654. Teichmann, M., Article 15, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011, Oxford: Oxford University Press), 909. Tyler, I./Marciniak, K., Immigrant Protest: An Introduction, Citizenship Studies 17 (2013) 2, 143, doi: 10.1080/13621025.2013.780728. UNHCR Press Release, UNHCR Shocked, Saddened over Cairo Deaths, December 30, 2005, www.unhcr.org/en-­us/news/press/2005/12/43bbf82f2/unhcr-­shockedsaddened-­cairo-deaths.html. UNHCR, Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast) (2015) www.refworld.org/docid/5541d4f24.html. Weis, P., (ed.), The Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (1995, Cambridge: Cambridge University Press). Wilmer, S., Greek Tragedy as a Window on the Dispossessed, New Theatre Quarterly 33 (2017) 3, 277. Ziegler, R., Voting Rights of Refugees (2017, Cambridge: Cambridge University Press), doi: 10.1017/9781316671443.

7 Humanitarian government and the political membership of refugees

The rise of humanitarian government in refugee protection About 31 percent of the world’s refugees live in refugee camps.1 Pictures of long rows of tents with the UNHCR print have become a stereotypical image, nearly a symbol of refugeehood. Refugee camps and UNHCR’s involvement in direct assistance are more than marginal phenomena, they are an essential element in the global structure of refugee protection today. The role of this involvement is ambivalent. On the one hand, UNHCR together with numerous humanitarian organizations responds to gaps in protection and in many places provides indispensable relief to refugees. On the other hand, the “humanitarian government” that often ensues is part of a problematic structure, in which humanitarian actors assume functions that would otherwise fall upon states. This chapter explores this structure and its effect on the political rights of refugees. The previous two chapters have examined legal conditions for refugees’ access to political voice, looking at international law and examples of national regulations. The focus has been on the situation of refugees facing rules and authorities of the host state, thus what the 1951 GRC and other legal instruments foresee as the regular situation. With the rise of humanitarian government in refugee protection, however, this is not the situation for a substantial part of refugees. To understand the phenomenon of humanitarian government in refugee protection, a clarification of terms and a historical perspective are helpful. Humanitarianism is not a cause strange to refugee protection. The universalism at the basis of the refugee concept, as the first chapter has discussed, makes the concern with refugees a natural cause for humanitarian organizations. The term “humanitarian” thereby draws on two dimensions of the term “humanity”: first, the reach of concern being not premised on a particular group but encompassing all mankind (humanity), and second a non-­cruel attitude towards other

1 Figure as of 2017, see UNHCR, Diagnostic Tool for Alternatives to Camps, 2017 Global Results.

122   Refugees’ political voice human beings (humaneness).2 The defining aim of humanitarian organizations is the assistance of persons in need and the mitigation of human suffering. In the context of international relations, “humanitarian” is often employed in contrast to partisanship. First humanitarian organizations like the International Committee of the Red Cross (ICRC) were created based on the experience of war and its pervasive harm. Their declared goal was to alleviate suffering in the context of war, mostly by caring for the wounded and by protecting civilians. Not belonging to either of the parties in an armed conflict was thereby crucial, so that humanitarian organizations would be able to access the wounded or civilians and offer relief. The basic rules about limitations on warfare and the role of humanitarian actors belong to the oldest parts of international law. Today, the joint Article 3 of all Geneva Conventions refers to “an impartial humanitarian body” that may offer its services.3 Humanitarian organizations became concerned with refugees in the beginning of the twentieth century.4 It was the ICRC that in 1921 convened a conference that led to the appointment of the first High Commissioner for Refugees in the League of Nations, Fridtjof Nansen.5 The origins of international refugee protection in that sense link to humanitarian activities. At the same time, the protection of refugees was foreseen to be the responsibility of states. The League of Nations High Commissioner for Refugees focused on assuring and coordinating legal protection by states.6 When the UN High Commissioner for Refugees (UNHCR) was founded in 1950, its mandate centered on coordination and supervision of state protection, although its scope of activities was set up in a broader manner.7 The tasks enumerated in the UNHCR Statute include promoting the ratification of treaties and supervising their application,8 or the gathering of information from governments about living conditions of refugees and laws governing them.9 The Statute thereby stresses the humanitarian and non-­partisan character of the agency: The work of the High Commissioner shall be of an entirely nonpolitical character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees.10

  2 Cf. Didier Fassin, Humanitarian Reason. A Moral History of the Present (2011), 2.   3 Cf. e.g. Article 3 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, August 12, 1949.   4 Michael Barnett, Refugees and Humanitarianism, in: Elena Fiddian-Qasmiyeh et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014), 241.   5 Elizabeth G. Ferris, Beyond Borders. Refugees, Migrants and Human Rights in the Post-Cold War Era (1993), 4; Gilbert Jaeger, On the History of the International Protection of Refugees, International Review of the Red Cross 83 (2001) 843, 727 (728).   6 Cf. James C. Hathaway, The Law of Refugee Status (1991), 4.   7 Cf. UNHCR Statute (1950), Annex of UN GA Resolution 428 (V).   8 Ibid., para. 8 a.   9 Ibid., para. 8 f. 10 Ibid., para. 6.

Humanitarian government   123 The conception of humanitarian work as “non-­political” in nature is crucial for the work of humanitarian organizations, in the context of refugee protection it means that UNHCR would not take sides in a conflict that caused flight. This is a concern, for example, in the context of refugees’ participation in elections of their home state, as the fifth chapter has discussed. Of course, the non-­political nature cannot be understood as involving no political questions, which would be outright impossible. UNHCR’s work includes decisions about the right strategies for protecting refugees, about the prioritizing of situations, or the allocation of funds. In those and many other ways, UNHCR’s work is not outside politics and could not be. However, the conceptual opposition of humanitarianism with politics became important when humanitarian organizations successively assumed more protection functions that previously fell upon states. First, it is necessary to understand how humanitarian government emerged and grew in refugee protection. This development closely aligns with the development of UNHCR’s role more generally. With its founding in 1950, UNHCR was set up as the main international agency to work on the protection of r­efugees.11 However, it was initially foreseen to exist only for three years. The mandate was then renewed continuously and became permanent in 2003. The  legal basis for UNHCR’s activities is the Statute,12 which concretizes the responsibility of providing for the international protection of refugees.13 The High Commissioner and their Office form a subsidiary organ to the UN General Assembly.14 Since 1958, an Executive Committee has advised the work of UNHCR.15 The Executive Committee meets in plenary session annually, a Standing Committee meets about three times per year. In the 1950s and 1960s, the most remarkable development of UNHCR was its beginning involvement in material assistance and the orientation towards refugee situations in states of the Global South.16 The GRC was not applicable to refugee situations that formed after 1951.17 In refugee situations that arose, UNHCR stepped in to channel assistance under the formula of “good offices,” for a first time regarding refugees from China and from Algeria in 1957.18 As UNHCR extended its activities to states in Africa and Asia and provided material assistance, it also began to independently raise funds. In those years,

11 Cf. UN GA Res. 428 (V) of December 14, 1950. 12 As provided in UN GA Res. 428 (V) of December 14, 1950 (Annex). 13 Cf. Paragraph 8 of the UNHCR Statute. 14 UN GA Res. 319 A (IV) of December 3, 1949. 15 The Executive Committee was set up by UN ECOSOC Res. E/RES/672 (XXV), April 30, 1958, its establishment is foreseen in Paragraph 4 of the UNHCR Statute. 16 Gil Loescher, The UNHCR and World Politics: State Interests vs. Institutional Autonomy, International Migration Review 35 (2001) 1, 36. 17 Cf. Article 1 A para. 2 GRC, the temporal limitations of which was lifted only with the 1967 Protocol. 18 Ibid., 37; Astri Suhrke/Kathleen Newland, UNHCR: Uphill into the future, International Migration Review 35 (2001) 1, 293.

124   Refugees’ political voice the scope of activities carried out by UNHCR broadened considerably. Initially, the institutional framework was designed with the objective to make UNHCR neither too autonomous nor an operational agency.19 Over time, UNHCR not only enlarged its geographical scope, but also expanded from a mainly coordinating function to an actor in material assistance, and in the interpretation and development of refugee law. Being entrusted with the Refugee Status Determination in several states, UNHCR developed its own procedural framework as well as material guidelines for the decision who is eligible to protection.20 Moreover, the persons of concerns to UNHCR increasingly encompassed internally displaced persons and person in refugee-­like situations. The geopolitical conditions further contributed to the growing role of UNHCR. In the 1970s and 1980s, world politics were shaped by the Cold War and by processes of decolonization. The polarization of the world due to the East–West-­opposition contributed to relatively generous support of UNHCR, while the agency at the same time increasingly laid the focus on refugees from the Global South, setting up new assistance programs and developing into an organization with global outreach.21 During the 1960s and 1970s, Western states were inclined to accept persons from states of Soviet territory or influence, while refugees from the Global South were widely hosted in neighboring countries. In total, this led to a relatively liberal system of protection.22 In the 1980s, however, the Cold War contributed to proxy conflicts in Indochina, Afghanistan, Central America, Northeastern and Southern Africa, which led to new and persisting refugee situations.23 In consequence, UNHCR’s work consisted to an ever-­larger extent in material assistance, setting up refugee camps that often remained in place for many years. In some cases, those camps in regions neighboring the refugees’ state of origin were involved in the violent political oppositions and became rather militarized places. UNHCR’s far-­reaching involvement in the operation of refugee camps and the nature of those camps gave rise to widespread criticisms regarding UNHCR’s work on the ground.24 UNHCR’s work in material assistance mostly follows a model, in which the agency together with partner organizations assumes responsibility for the material

19 Loescher, op. cit., 35. 20 UN High Commissioner for Refugees, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate (2003); UN High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3. 21 Loescher, op. cit., 39. 22 Suhrke/Newland, op. cit., 285. 23 Loescher, op. cit., 40; see with regard to protracted refugee situations T. Alexander Aleinikoff/Stephen Poellot, The Responsibility to Solve: The International Community and Protracted Refugee Situations, Virginia Journal of International Law 54 (2014) 2, 195. 24 Guglielmo Verdirame/Barbara Harrell-Bond, Rights in Exile. Janus-faced Humanitarianism (2005); B. S. Chimni, The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies 11 (1998) 4, 350.

Humanitarian government   125 support of refugees, while the host state’s responsibility is limited to admitting persons to the territory and respecting the principle of non-­refoulement.25 For that purpose, UNHCR usually concludes cooperation agreements with the host states. The competence to conclude such agreements is based on Article 8 and Article 16 of the UNHCR Statute.26 Article 8 foresees the conclusion of special agreements by UNHCR with governments (para. b) as well as generally “keeping in close touch” with governments concerned (para. g).27 Article 16 foresees the possibility of appointing representatives of UNHCR within states.28 These cooperation agreements between UNHCR and host state governments often follow a model agreement as Marjoleine Zieck describes.29 They provide for UNHCR’s presence in the host state in addressing questions of legal status of UNHCR facilities and staff. In the case of Jordan for instance, UNHCR concluded an agreement with the Jordanian Government in 1997 that serves as the basis for UNHCR administration of refugee camps.30 The agreement inter alia guarantees unimpeded access of UNHCR staff to the persons of concerns,31 as well as privileges and immunities of UNHCR staff and cooperating partners.32 In the context of material assistance, the non-­political nature of UNHCR’s mandate was often emphasized.33 There are different reasons why the non-­ political nature of its works appears so important. First, the non-­political character in the sense of impartiality would guarantee UNHCR access to refugees for the purpose of protection. Moreover, the humanitarian paradigm allowed a strict separation between the state’s funding of UNHCR’s activities and their own position towards conflicts at the basis of refugee movements. Finally, UNHCR’s sometimes far-­reaching authority on the territory of states made the humanitarian emphasis necessary in order not to be conceived as interference with the sovereignty of the respective state.34 At the same time, the corresponding opposition between humanitarianism and politics is what makes the continuous life under humanitarian government so problematic, as the subsequent sections will explore. As should have become clear, not all humanitarian involvement in refugee protection amounts to humanitarian government. Humanitarian government in

25 Amy Slaughter/Jeff Crisp, A Surrogate State? The Role of UNHCR in Protracted Refugee Situations, New Issues in Refugee Research (2009), UNHCR PDES Research Paper No. 168, 1. 26 Maja Janmyr, Protecting Civilians in Refugee Camps (2014), 261. 27 UNHCR Statute (1950). 28 Ibid. 29 Marjoleine Zieck, UNHCR’s Worldwide Presence in the Field (2006), 59, 159. 30 1997 Agreement Between the Government of the Hashemite Kingdom of Jordan and the United Nations High Commissioner for Refugees. 31 Article 3 para. 4 of the Agreement. 32 Article 7, 10, 12 and 13 of the Agreement. 33 Loescher, op. cit., 2. 34 Michael Barnett, Refugees and Humanitarianism, in: Fiddian-Qasmiyeh et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014), 248.

126   Refugees’ political voice refugee protection refers to situations in which international and non-­ governmental humanitarian organizations assume important governing functions, in that they decide about persons’ access to basic goods such as water, food, and housing.35 In such constellation, central tasks of public authority are transferred from the state to humanitarian bodies. Refugee camps, although not the only form, are the quintessential form of humanitarian government.36 In a broader sense, humanitarian reason in refugee protection reaches beyond one particular situation but describes a paradigm of how powerful actors make decisions about the arrangements of refugee protection.37 In order to understand this structural dimension of humanitarian government, one has to see how it interrelates with the question of responsibility sharing in refugee protection.

Humanitarian government and responsibility-­sharing for refugees A humanitarian government is both a result from, and a factor in, problems of international responsibility-­sharing in refugee protection. Responsibility-­sharing refers to the question where, and from whom, refugees should receive protection. At the outset, international law does not contain specific rules on that matter. The preamble of the Geneva Refugee Convention speaks of the importance of international cooperation. Yet beside this brief reference, refugee law applies a bilateral perspective, containing rules for each encounter between one refugee and one state. The core obligation is the principle of non-­refoulement. The wider question of whether a high number of refugees should receive protection in different states and if there is an obligation of states to participate in protection was left open. This went hand in hand with the absence of rules on access to asylum. The principle of non-­refoulement prohibits that a refugee is rejected at the border or expelled. Yet international law does not explicitly forbid that states hinder persons from reaching the border. The access to territory and thus to the very possibility of claiming asylum is often the critical point. The 1948 Universal Declaration of Human Rights (UDHR) declares a “right to seek and to enjoy” asylum, but states avoided a more far-­reaching formulation.38 The GRC remains silent on the question of access, with states explicitly opposing more provisions

35 For that use of the term cf. also Michel Agier, Managing the Undesirables – Refugee Camps and Humanitarian Government (2011), 7, 65. Didier Fassin employs the notion of “humanitarian government” in a different way, see Didier Fassin, Humanitarian Reason. A Moral History of the Present (2011), 1. 36 Agier, Managing the Undesirables – Refugee Camps and Humanitarian Government (2011), p. 201. 37 Cf. for the term Seyla Benhabib, Critique of Humanitarian Reason, Eurozine (2014), 1, with reference to Fassin, op. cit., 133. 38 Pauline Endres de Oliveira, Legaler Zugang zu internationalem Schutz – zur Gretchenfrage im Flüchtlingsrecht, Kritische Justiz 49 (2016) 2, 2.

Humanitarian government   127 in that regard during the drafting.39 In 1967, the UN General Assembly adopted a Declaration on Territorial Asylum;40 a planned convention on the issue, however, failed. The lack of regulations regarding access to territory and asylum enabled the successive establishment of “non-­entrée regimes.”41 Overall, refugee situations that emerged in African and Asian states were handled in the regions but there was also an increasing sense that wealthy states in the Global North were not contributing their fair share.42 The 1967 Protocol made the Geneva Refugee Convention applicable to refugees from outside Europe, and many of the newly independent states ratified both the Protocol and the GRC.43 Yet beside economic and practical limits to the capacity in offering protection, host states in the Global South were also less willing to extent their efforts in refugee protection when they felt left alone with the task.44 Against that background, the question of responsibility-­sharing became one of opposing views whether the regions of origin were solely responsible for hosting refugees, or whether the responsibility fell on the international community as a whole. One perspective was that refugees should receive protection in the first state in which they find safety, and that this was the only state obliged under international law, through the principle of non-­refoulement. The opposing perspective, however, stressed that the concentration of refugees in one country would bring this country to economic and practical limits in accommodating refugees.45 Instead, a certain flexibility that allows refugees to move onwards and claim asylum in another country, if they prefer to, would lead to a better distribution and more effective protection. In practice, problems aggravated in the 1990s, when the number of refugees grew and many states particularly in the Global North established non-­entrée regimes. With secessions and dissolutions of states, for example in Yugoslavia, some conflicts took place within or at the borders of Europe. The resulting sense of “losing control,” as Astri Suhrke and Kathleen Newland describe it, caused many states in Europe to create more restrictive asylum laws.46 Although the number of refugees went down in the following decades, states continued to establish comprehensive regimes of migration control. Those included strict

39 Paul Weis (ed.), The Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (1995), Article 26. 40 Declaration on Territorial Asylum as adopted by the UN General Assembly on December 14, 1967, A/RES/2312(XXII). 41 Cf. James Hathaway, The Emerging Politics of Non-Entrée, Refugees 91 (1992), 40; Chimni, op. cit., 351; Ferris, op. cit., xvii. 42 James Milner, Refugees, the State and the Politics of Asylum in Africa (2009), 39. 43 UNHCR Document, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, www.unhcr.org/3b73b0d63.html. 44 Slaughter/Crisp, op. cit., 3, 4; Milner, op. cit., 41. 45 As described for the case of Kenya by Verdirame/Harrell-Bond, op. cit., 34. 46 Suhrke/Newland, op. cit., 289.

128   Refugees’ political voice visa regulations, measures of border surveillance, sanctions against carriers, readmission agreements with transit states and safe third country lists.47 Beside lasting conflicts that caused people to flee, the conditions of refugee protection were also impacted by the fact that channels for immigration in general became more restricted. Refugee protection was built on the supposedly clear separation between refugees as “involuntary” displaced and migrants “voluntary” leaving a state for economic advantages elsewhere. This separation could be operated in the 1960s and 1970s due to relatively open immigration schemes in industrialized states that received foreign workers on the one hand, and moderate numbers of refugees on the other.48 Yet in practice factors for flight and migration are often mixed, and the narrowing of schemes for work migration also impacted the conditions of refugee protection. The unresolved question of responsibility-­sharing fueled the involvement of UNHCR and other humanitarian agencies. While their work supported states and ensured that refugees were given the necessary immediate assistance, it also became a way of splitting the contributions to refugee protection. The state in which refugees found first shelter were offering the access to territory, while the UNHCR took over most of the actual tasks of providing assistance. Other states contributed financially, thereby participating in the task of protection but also ensuring that refugees were cared for and would not migrate onwards. This triangular relationship between host states, donor states and humanitarian actors led to the prolonging of humanitarian involvement even beyond the first response. At the same time, it also meant the risk of a deadlock in responsibility-­ sharing, in which every part felt it was contributing enough, without the overall situation being brought to a solution. Host states allowed access and stay on their territory, even where the numbers of refugees continued to grow. Humanitarian actors offered relief for which the demand continued. Donor states provided the funding for this necessary relief in ever greater amounts. This triangle proved problematic foremost because it meant that refugees would stay refugees as long as they cannot return home. What the GRC had foreseen as the rule, the integration and eventual naturalization, is not available in that model. This means that refugees are kept in a condition of preliminariness, they find themselves in “extended exile,” as Jennifer Hyndman and Wenona Giles put it,49 or “second exile,” as Alexander Aleinikoff has phrased it.50 This contributes significantly to the growing number of refugees, and thereby increases the task of all sides. UNHCR depend in their work both on

47 Ibid., 291. 48 Ibid., 287. 49 Jennifer Hyndman/Wenona Giles, Refugees in Extended Exile. Living on the Edge (2017), 34. 50 T. Alexander Aleinikoff, The Present, Past, and Future of Refugee Protection and Solutions: Camps, Comprehensive Plans, and Cyber-Communities, Emory International Law Review 31 (2017), 539 (543); see also T. Alexander Aleinikoff/Leah Zamore, The Arc of Protection. Reforming the International Refugee Regime (2018), 25.

Humanitarian government   129 the good will of the host state and on the funding by donor states, which reinforced on the one hand that refugees are kept separate from the local population, and on the other hand that they are discouraged from onwards-­ migration. While humanitarian government is an effect of a conflict in responsibility-­sharing, it also increases the problem.

Humanitarian government and refugee camps Situations of humanitarian government have a significant impact for the question of responsibility-­sharing, and they have an impact for the rights of refugees. While the safeguarding and effective enjoyment of rights are, of course, highly situational, there are certain structural aspects of how humanitarian government affects the rights of refugees. This particularly relates to political rights. Much research in that regard has focused on the form of the camp. While the condition of humanitarian government does not equate conditions of refugee camps, the two largely overlap. For that reason, this section examines the notion and characteristics of refugee camps, before the subsequent section will discuss the conditions of political rights in camps and under humanitarian government. A large variety of phenomena fall under the notion of the refugee camp. In a broad ethnographic study, Michel Agier offers impressions on the diversity of camps ranging from mainly self-­organized settlements,51 over transit centers,52 to camps created and operated by UNHCR and humanitarian agencies. Refugee camps vary in their size and composition, in their circumstances of creation and duration of existence, in their organization, and in their relation to the environment in the country. UNHCR defines refugee camps as any purpose-­built, planned and managed location or spontaneous settlement where refugees are accommodated and receive assistance and services from government and humanitarian agencies. The defining characteristic of a camp […] is some degree of limitation on the rights and freedoms of refugees, such as their ability to move freely, choose where to live, work or open a business, cultivate land or access protection and services.53 This limitation of rights of refugees, despite the differences in camps, corresponds to some widely shared features of camps. Refugee camps can be defined along four interrelated features, which are separation, the focus on providing for basic survival, the imagined temporariness of the camp’s existence, and the suspension of certain rights guarantees, in other words a condition of exceptionality as overarching feature. These four aspects are central to understanding the

51 Agier, op. cit., 39. 52 Ibid., 46. 53 UNHCR, Policy on Alternatives to Camps (2009), 4.

130   Refugees’ political voice characteristic challenges in particular for the political rights of refugees and shall be briefly summarized here. First, refugee camps are characterized by a certain separation from the surrounding territory and population.54 In some cases, this is accomplished through their geographical location far away from genuine towns and villages, in remote areas or on islands.55 In other cases, or in addition to the geographical separation, camps are confined by fences and have regulated entry and exit.56 For the Meheba Camp in Sambia, where most inhabitants are Angolan refugees, Katharina Inhetveen describes that the refugees are prohibited to leave the camp without written permission.57 In other cases, entry to and exit from the camp will be free, but the space is nonetheless delimited by fences and gates. The characteristic of separation has a more immediate organizational side to it, but also a far-­reaching significance in relation to responsibility-­sharing and the refugee concept. The physical separation of refugees in a camp serves as an instrument to organize the arrivals and to manage the persons living in the camp. At the same time, the separation upholds a logic of non-­arrival. Refugees that are kept separate from the local population have been admitted to the territory, but they have not been admitted to the political equality that usually begins with territorial co-­presence. While the refugee concept always means an in-­between in the sense of having left one place and not yet fully arrived in another, this in-­between usually lasts for a limited period. For refugees in a camp, however, time does not progress in the sense of moving towards full membership. Separation is the first key factor in that. Second, refugee camps are marked by a paradigm of emergency, in which the focus is on providing for the immediate survival.58 This emergency paradigm is at the basis of and forms the main justification for refugee camps. Camps are typically set up in circumstances in which a large number of persons must be accommodated in a short time, so that camps appear as the only solution.59 Encampment in such circumstances is seen as a way to provide for the basic needs of the persons arriving, while at the same time ensuring the control and overview. This also links to the separation from the general population, which can be seen to serve the manageability of providing services to the refugees in the camp. At the same time, the separation fosters a logic of providing for basic survival, even if the camp exists over a prolonged period of time.

54 Simon Turner, What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp, Journal of Refugee Studies 29 (2015) 2, 139 (141). 55 As in the case of Australian offshore processing centers, cf. Jane McAdam, Australia and Asylum Seekers, International Journal of Refugee Law 25 (2013) 3, 435. 56 Guglielmo Verdirame/Jason Pobjoy, The End of Refugee Camps, in: Satvinder Juss (ed.), The Ashgate Research Companion to Migration Law, Theory and Policy (2013), 471. 57 Katharina Inhetveen Die politische Ordnung des Flüchtlingslagers (2010), 216. 58 Cf. Heather Johnson, Borders, Asylum and Global Non-Citizenship (2014), 135. 59 Oliver Bakewell, Encampment and Self-Settlement, in: Fiddian-Qasmiyeh et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014), 128.

Humanitarian government   131 The conception of camps as an emergency measure in that regard links to the third feature, the question of its temporariness. When set up in a case of sudden emergency, refugee camps are regarded as provisional measures. Yet in many cases, camps are not an interim place for persons, but remain the only place they have access to. About half of the world’s refugees, more than 6 million persons, are in “protracted refugee situations” today.60 UNHCR defines a “protracted refugee situation” as one in which persons are “trapped in their initial displacement […] for 5 years or more.”61 In many cases, refugee camps have existed for decades, with whole generations being born in the camp. Despite this actual duration, the condition of refugee camps upholds a form of temporariness in the sense of preliminariness. Absent an environment where they can gain full political membership and build up new lives, persons are faced with a condition of prolonged temporariness. As Simon Turner describes, the aspects of separation and of temporariness both work to uphold a picture of refugees as dis-­placed, “out of place.”62 Keeping them separate from the population of the host states suggests that refugees are not where they belong, and are only provisionally sheltered, waiting to return home. The condition of temporariness underlines this aspect that refugees are held waiting for their return, upon which “nation and state are once again united.”63 These conditions are reinforced by humanitarian government. When different actors are responsible for refugees in the camps than for the surrounding population, separation becomes necessary. The focus on survival is supported by humanitarian organizations having the mandate for that sort of emergency relief. Even if their mandate foresees more than immediate survival relief, they are not set up to replace state institutions. Moreover, their dependence on funding means that they are required to justify how they use resources to help the most persons in the most efficient way. Finally, their responsibility is based on the assumption that the presence on a state territory and the involvement in protection is provisional. The features of separation, emergency, and purported temporariness of refugee camps converge in a condition of exceptionality. There have been several and at times contradicting uses of this term, which makes it useful to clarify the understanding here. Although situated on a state’s territory, the refugee camp follows different rules than the surrounding spaces. Michel Agier describes camps as “spaces outside the general law,” as heterotopic.64 Giorgio Agamben described the camp as the “space that opens up when the state of

60 Aleinikoff/Poellot, op. cit., 196. 61 UNHCR, Policy on Alternatives to Camps (2014), 4. 62 Turner, What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp (2015), 140. 63 Simon Turner, Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, in: Inhetveen (ed.), Flucht als Politik (2006), 57. 64 Agier, op. cit., 180 with reference to the Foucauldian term of “heterotopia.”

132   Refugees’ political voice exception starts to become the rule.”65 Several reflections regarding refugee camps have drawn on that Agambian framework of analysis.66 The condition of exceptionality does not mean, however, that refugee camps were places without law. Rather, they are structured by different layers of legal regulation. The paradigm of emergency works to justify limitations of rights and legal safeguards that apply outside the camp will regularly not be in place. The features of separation, emergency, and temporariness all relate to legal measures. For example, separation is upheld not only by fences and gates, but foremost by rules governing the right of entry and exit. The services provided in the camp under the paradigm of basic survival provision follow legal regulations, and the general administration of camps, its funding and operational framework are all subject to regulation. For many daily concerns, it is not the laws of the state, but the rules and decisions taken by UNHCR, which govern the lives of the camp population. At the same time, the law of the host states remains applicable in some regards, for instance with regard to criminal law.67 Speaking about exceptionality should also not conceal that a diverse everyday life develops in refugee camps that persist for long time.68 Yet the condition of exceptionality closely relates to the suspension of genuine political life in refugee camps.

Political rights of refugees in camps The condition of politics in refugee camps is shaped by the way authority is divided between the host state and UNHCR. In refugee camps, UNHCR and partner organizations to a large extent replace the state as a central authority vis­à-vis refugees and the public infrastructure of the respective territorial state. As described above, UNHCR’s presence is usually based on an agreement with the host state. One task that UNHCR regularly assumes is to conduct refugee status determination and to provide refugees with the according documents.69 Absent any explicit legal basis for refugee status determination by UNHCR, this activity is based on the general mandate to protect refugees.70 Although not formally binding on the host state, the refugee certificate that is issued is usually decisive for the protection the respective person receives. From this certificate will

65 Giorgio Agamben, Means without End. Notes on Politics (2000), 39. 66 Turner, Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, 44; Johnson, op. cit., 128. 67 Rosa da Costa, The Administration of Justice in Refugee Camps: A Study of Practice, UNHCR Legal and Protection Policy Research Series (2006). 68 Agier, op. cit., 179. 69 Michael Kagan, The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination, International Journal of Refugee Law 18 (2006) 1, 1; Maja Smrkolj, International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refugee Status Determination, in: Armin von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions (2010), 165. 70 Smrkolj, op. cit., 172; see Article 1 of the UNHCR Statute.

Humanitarian government   133 depend whether a person is protected from forcible return, whether she can receive assistance in the host state, or is eligible for resettlement.71 Beside the determination of refugee status, UNHCR assumes a governing function when operating refugee camps. In camps, UNHCR together with implementing partners regularly sets up an infrastructure of public services, including housing, access to water and food, sanitation, health care, and education.72 Staff of UNHCR will in these constellations decide about questions of access to and distribution of services. Moreover, UNHCR in some cases introduces policing and justice mechanisms.73 With all this, the programs administered by UNHCR often developed into parallel systems beside the local population and local public services. Whereas various actors are involved in the provision of services, it is UNHCR that is responsible for the coordination and administration, and that holds the overarching authority in general decisions. This can correspond to the perception by refugees that the camp is “UNHCR territory” and UNHCR the authority that has the final word in all matters.74 Several scholars have suggested thinking of UNHCR in these constellations as a “surrogate government” or a “surrogate state.”75 It is UNHCR instead of the agencies of the state that decides on a person’s recognition as a refugee, and about the living conditions of persons recognized as such. Although the activities still take place within the jurisdiction of the state, it is UNHCR and not the state authorities that refugees meet as a counterpart. This, first, raises questions regarding the legal framework for UNHCR’s conduct in those instances. Even if human rights obligations are regarded as formally applicable for UNHCR administering refugee camps,76 there exists little possibility to question or challenge UNHCR’s decisions. This disaggregation as well as opacity of authority impacts the rights of refugees under humanitarian government. It impacts foremost political rights. Political participation and political activities are directed at influencing the rules and structures that govern one’s life. In the case of refugee camps, many of those rules and structures are removed from the immediate influence. Neither the bifurcation of authority nor the lack of immediate influence is thereby entirely unique to refugee camps. What distinguishes the condition in camps is, on an apparent level, the absence of full political membership. For inhabitants of

71 Smrkolj, op. cit., 176. 72 Slaughter/Crisp, op. cit., 8. 73 da Costa, op. cit.; Slaughter/Crisp, op. cit. 2. 74 Inhetveen, op. cit., 128. 75 Michael Kagan, “We Live in a Country of UNHCR” – The UN Surrogate State and Refugee Policy in the Middle East, New Issues in Refugee Research (2011), Research Paper No. 201; Slaughter/Crisp, op. cit.; Carolina Moulin/Peter Nyers, “We Live in a Country of UNHCR” – Refugee Protests and Global Political Society, International Political Sociology (2007) 1, 356. 76 Ralph Wilde, Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law, Yale Human Rights and Development Law Journal 1 (1998) 1, 107; Smrkolj, op. cit., 182.

134   Refugees’ political voice camps, no citizenship status exists; not only do refugees lack citizenship status but it does not even exist in the immediate environment, nor does it exist as a condition one gradually moves towards. On a less apparent level, the humanitarian government tends to cast questions as non-­political. Humanitarianism is understood as a possibility to ensure the protection of refugees while not interfering with state politics. That is the sense of the term humanitarian, when UNHCR’s work is labelled as humanitarian and non-­political. At the same time, the humanitarian framework of the refugee camp and the paradigm of emergency are oftentimes at odds with political activities. This is in part visible in policies for refugee participation in camps and their practical effects. Recognizing the lack of political voice of refugees in camps, UNHCR issued policies in that regard in the past two decades. The postulation to enhance refugee participation in UNHCR operations was first advanced by the UNHCR Executive Committee in 2001.77 The Executive Committee stated that UNHCR’s programs had to move towards a better inclusion of refugees in the formation of rules and the search for solutions. The statement stressed the goal of empowering refugees to participation rather than treating them as passive beneficiaries of assistance. The endeavor for more involvement of refugees in the organization of protection in camps was subsequently coined as “community-­based protection.”78 While the notion had been used before and was initially not tied to the aims of inclusion and participation, this became the focal meaning in the years after 2001. A distinct UNHCR manual from 2008 stresses this focus and underpins the aim to let every refugee participate in the decisions that affect them.79 This involves the claim that refugees should be consulted in the process of new organizational set-­ups, that they should have the opportunity to bring up issues of concern at any time, and should be included in deliberations on rule implementation.80 Various other policy documents by UNHCR today refer to the community-­based approach.81 In addition, the concept of “participatory assessment” foresees that UNHCR staff meets with different groups from the refugee population in discussions to gather information, identify core concerns and hear proposed solutions.82 The “community-­based approach” and “participatory assessment” are understood to interrelate closely.83

77 Executive Committee of the High Commissioner’s Programme, Reinforcing a Community Development Approach, 20th Meeting of the Standing Committee, February 15, 2001, EC/51/SC/CRP.6. 78 UNHCR, Manual on Operational Protection in Camps and Settlements (2006), 16. 79 UNHCR, A Community-Based Approach in UNHCR Operations (2008), 14. 80 Ibid. 81 Cf. e.g. UNHCR, Manual on Operational Protection in Camps and Settlements (2006), 16; UNHCR, Handbook for Emergencies (3rd Edition 2007), 8. 82 UNHCR, The UNHCR Tool for Participatory Assessment in Operations (2006), 1, 2. 83 UNHCR, A Community-Based Approach in UNHCR Operations, 6; UNHCR, The UNHCR Tool for Participatory Assessment in Operations, 2.

Humanitarian government   135 Seeking to understand the effect of those policies, I draw on studies on how refugee participation has been implemented.84 Refugee participation in camps has been foreseen in several places, even before the respective policies of UNHCR. The aim of inclusion in decisions in the camp thereby often overlapped with the aim of effective administration. Structures of elected representation were set up in many camps that existed over a considerable time. In the Dadaab Refugee Camp in Kenya, for instance, which hosts mostly Somali refugees, a two-­level system of representation is in place.85 The three Dadaab camps were combinedly the largest camps in the world with around 400,000 refugees until 2015.86 Each of the three camps is composed of blocks, which are organized in different sections. For each section and each block, leaders are elected.87 Similarly, in the Meheba Camp in Zambia, refugee representatives are elected on two levels.88 The lower level consists of 105 roads, each of which elects six persons as committee members. The person receiving most votes thereby functions as road chairperson, the person with the second most votes as secretary chairperson. The upper level consists of eight zones, in which the respective committees are represented. Within each zone, one chairperson and one secretary are elected, who represent up to 50,000 residents. In the Nangweshi Camp in Zambia, representation is structured on three levels.89 From each 50 houses, around 200 persons, one block leader is elected. Five to six blocks constitute one section, from which there are 16 in the main camp, similarly in the extension camps. Each section is presided by a section leader. In addition, there exists, differently from the Meheba structure, a camp council. These structures of elected representatives are an attempt at including refugees in decision-­making and creating structures comparable to political representation. However, they do not always confer power to actually influence decisions taken about the matters of the camp.90 Katharina Inhetveen describes how refugee representatives instead often serve as bridges for passing orders, supporting governance rather than controlling it.91 Besides that, procedures of election run the

84 For the broader background, see Nevzat Soguk, States and Strangers: Refugees and the Displacement of Statecraft (1999); Peter Nyers, Rethinking Refugees Beyond States of Emergency (2005). 85 In this context, I thank Dominik Bartsch from UNHCR, who spoke with me in 2012 about the conditions in Dadaab. 86 Thereafter, the number of refugees hosted was reduced significantly through pressure of the Kenyan government, leading to measures of voluntary repatriation to Somalia, for which the voluntary nature was often contested. Cf. Oscar Gakuo Mwangi, Securitisation, Nonrefoulement and the Rule of Law in Kenya: the Case of Somali Refugees, The International Journal of Human Rights 22 (2018) 10, 1318. 87 Cf. UNHCR News Stories, August 28, 2013, “Enthusiastic Turnout for Elections at World’s Largest Refugee Site,” www.unhcr.org/521de8729.html. 88 For this and the following Inhetveen, op. cit., 168. 89 Ibid. 90 Ibid., 181. 91 Ibid., 171.

136   Refugees’ political voice danger of resulting in a formal structure, which is set aside by the actual politics between the refugee camp residents or which is superseded by other structures of power. For the Lukole refugee camp, Simon Turner describes how refugees employed by humanitarian agencies acquire positions of power. Whereas the elected leaders “are the official representatives and intermediaries in charge of the refugees,” those employed by non-­governmental organizations “carry out the everyday practices of governing,”92 as they are in the position of controlling access to essential resources such as medical help, education, or security. In some instances, the objective of refugee inclusion in camps is explicitly disregarded.93 The broader political climate and the will of UNHCR staff are thereby decisive, without refugees having much power to hold the office accountable.94 Yet more than explicit disregard, the problems for political participation under humanitarian government are of structural nature. Those structural limits and the resulting contradictions have been described in relation to two key concepts of participatory politics, the notion of community and the notion of empowerment. Jennifer Hyndman points out that the notion of community can lead to misconceive refugees in a camp as uniform subject.95 Such a conception ascribes interests to persons rather than enabling the expression of diverse and dynamic views. Policies of formal inclusion that ignore the diversity of opinions among refugees in a camp are inclined to suppress rather than enable political action.96 Along similar lines, Simon Turner criticizes how the reference to “the community” in a refugee camp can be used to channel and control public processes. The term in that way becomes opposed to politics as unforeseeable forms of action.97 Kirsten McConnachie discusses different ways in which the term “community” can be employed in the context of the camp.98 She argues that while many uses of the term are problematic, the space of refugee camps should not be regarded as devoid of community either. Beside a cultural notion of community that might exist in the camp, a community exists in the sense of a situational community of camp residents,99 or as the community defined by the shared subjection to governance.100 Those notions are useful for outlining spaces of politics, to which the last section will return.

  92 Simon Turner, Negotiating Authority between UNHCR and “The People,” Development and Change 37 (2006) 4, 759 (767).   93 Agier, op. cit., 213.   94 Noel Calhoun, UNHCR and Community Development: A Weak Link in the Chain of Refugee Protection?, UNHCR New Issues in Refugee Research, Research Paper No. 191 (2010), 6; UNHCR Evaluation and Policy Analysis Unit, The community service function in UNHCR – An Independent Evaluation, viii.   95 Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (2000), 138.   96 Ibid., 139.   97 Turner, Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, 53.   98 Kirsten McConnachie, Governing Refugees (2014), 39.   99 Ibid., 41. 100 Ibid., 44.

Humanitarian government   137 Another term that is criticized in the context of promoting participation under humanitarian government is the term “empowerment.” In that regard, Simon Turner describes examples from the Lukole camp in Tanzania, in which UNHCR staff would actively interfere with the election process to push female candidates.101 The idea of “empowering” has at least two problematic aspects to it. First, it bears the potential that certain groups of refugees are played off against others. In that sense, the goal of gender equality can be instrumentalized for governing purposes.102 Second, the emphasis on empowerment can set the focus on fostering refugee participation as a feeling rather than an agency.103 In that sense, inclusionary policies run the risk, while claiming the exact opposite, to take part in construing refugees as passive victims.104 In a discourse of victimization, measures circumscribing free agency are depicted as necessary for protection. The limitation of free agency contributes in turn to a far-­reaching dependency from humanitarian assistance in all areas of life, which again supports a picture of the refugee as passive victim. Such construction of refugees as victims is likely to obstruct autonomous political action.105 Beyond specific examples, what are the reasons that participatory policies under humanitarian government run into problems and contradictions? To what extent are these problems a matter of improving procedures, and to what extent are they of such structural nature that they cannot be resolved under the condition of humanitarian government? Ayten Gündoğdu suggests that what we see in the context of humanitarian government is the exclusion that results from the failure to formulate deprival as a political question.106 Gündoğdu draws on Hannah Arendt’s critique of compassion as developed with regard to the aftermaths of the French Revolution.107 Whereas Arendt does not oppose compassion as such, she argues that it bears a harmful potential if introduced as a driving political force.108 This analysis can be translated to the case of refugees under humanitarian government, for which Gündoğdu argues that “compassion works against political practices of articulating an issue as common political concern.”109 Instead of arguing about the overall factors that turn the refugee’s situation into a situation of deprival, the paradigm of compassion creates the

101 Simon Turner, Angry Young Men In Camps: Gender, Age and Class Relations among Burundian Refugees in Tanzania, New Issues in Refugee Research (1999), Working Paper No. 9, 3. 102 Elisabeth Olivius, Displacing Equality? Women’s Participation and Humanitarian Aid Effectiveness in Refugee Camps, Refugee Survey Quarterly 33 (2014) 3, 93. 103 Turner, Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, 54. 104 Cf. also Agier, op. cit., 65. 105 McConnachie, op. cit., 88. 106 Ibid., 69. 107 Hannah Arendt, On Revolution (1963), 59; see for an overview Ayten Gündoğdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants (2015), 73. 108 Arendt, op. cit., 75. 109 Gündoğdu, op. cit., 72.

138   Refugees’ political voice view of the neediness of refugees as a feature attached to their persons and to be addressed by humanitarian assistance.

Politics under and against humanitarian government Humanitarian government has the effect of disaggregating the authority that governs the lives of refugees. Whereas participation in the sense of a “community-­based approach” or a “participatory assessment” is directed towards decisions within the camp, the lives of refugees are shaped by many decisions outside the camp. Limitations of free movement, the lack of a right to work, and the dependence on assistance are contingent on political decisions beyond the reach of refugees. Foremost, the environment of the camp deprives refugees of a perspective of arriving and building a more permanent live. Instead, humanitarian government operates under a condition of extended preliminariness. The last section has described aspects of how this affects political rights of refugees. Beyond the lacking access to citizenship status, it is the disaggregated sovereignty with humanitarian agencies on the one side and the jurisdiction of the host state on the other that is obstructive to political agency and rights of refugees. Nonetheless, there are political activities of refugees that take place under these obstructive conditions.110 First, we should remind ourselves that the notion of the refugee camp spans a wide range of phenomena. There are examples of self-­organizational structures in some camps that contrast the attempts of instituted representation. Moreover, certain social structures and corresponding politics will develop under humanitarian government, even where institutions of self-­governance are absent. Finally, there are politics that are specifically directed against the condition of humanitarian government. The section will look at some examples for such politics under and against humanitarian government, before returning to a more global perspective. One case of self-­organizational structures are the refugee camps in the border region of Thailand, as Kirsten McConnachie describes in a broad study.111 About 80,000 persons, many of them Karen people, fled Myanmar and settled close to the border. They live in nine camps, which in general are self-­organized under the authority of the Thai Government. The organizational structures include specific groups, such as women committees, as well as overarching refugee committees, which coordinate the daily life in the camps and communicate with UNHCR and other international or non-­governmental organizations.112 With a view to this case, McConnachie argues that the potential of

110 Agier, op. cit., 149; Turner, Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, 57. 111 McConnachie, op. cit. 112 Cf. Julie Freccero/Kim Thuy Seelinger, Safe Haven, Sheltering Displaced Persons from Sexual and Gender-Based Violence, Case study: Thailand (2013), 29.

Humanitarian government   139 self-­governance depend on social circumstances rather than being the result of specific policies.113 UNHCR has not been involved in the organization of these refugee camps until 1998.114 That structures of refugees’ self-­organization work well there, McConnachie moreover ascribes to the fact that the conceptualization as victims is less influential there than elsewhere.115 Another case of self-­ organized structures is the Sahrawi refugee camp in Algeria, for which Elena Fiddian-­Qasmiyeh describes the ambivalent relation to humanitarian organizations.116 Michel Agier describes in his study how refugee camps after some duration share many features with non-­camp villages or towns.117 While the social and political situation in camps remains distinct in fundamental aspects, as outlined above, an everyday life emerges in camps that involves some form of a public. On that basis, Agier describes how political activities and protests take place in the camp environment. These involve, for instance, demands towards UNHCR and non-­governmental organizations, or strategies around winning representative functions.118 Such conflicts over official representation also reflect that these structures can play a role in the political life in refugee camps, whenever they are conceived as more than a façade. In many cases, the political action will take the form of protest, as Agier describes with regard to women protesting disadvantagement vis-­à-vis other groups.119 These instances of refugee activism appear as unforeseen and while they consist of specific claims, they also challenge more generally the picture of the refugee as passive victim.120 These instances of refugees protesting victimization have been read, for instance by Heather L. Johnson, through the lens of Jacques Rancière’s conception of politics.121 According to Rancière, political activity consists in “whatever shifts a body from a place assigned to it.”122 Politics consists essentially in those instances, in which persons who are not foreseen to be political actors, claim their voice. Those perceived as outside political institutions and membership are not counted, their voices are not heard as speech.123 This means, in the case of refugees under humanitarian government, for instance, a logic in which requests can only be expressed as neediness. Politics originate, in the Rancierian conception, where actors not recognized as capable of political speech engage in

113 McConnachie, op. cit., 160. 114 Cf. ibid., 81. 115 Ibid., 89. 116 Elena Fiddian-Qasmiyeh, The Ideal Refugees: Gender, Islam, and the Sahrawi Politics of Survival (2014). 117 Agier, op. cit., 187. 118 Ibid., 156. 119 Ibid., 151. 120 Cf. ibid., 157. 121 Johnson, op. cit., 165. 122 Jacques Rancière, Disagreement: Politics and Philosophy (1999), 30. 123 “Those who have no logos,” ibid., 22.

140   Refugees’ political voice such,124 where, in the case of humanitarian government, refugees succeed to express their demands as explicitly political and not humanitarian cause. In that vein, Carolina Moulin and Peter Nyers described the refugee protests 2005 in Cairo, which were mentioned in the beginning of last chapter, as directed explicitly against the situation of humanitarian government that deprives them of a responding authority for their claims.125 In these protests, Sudanese refugees opposed the handling of their cases by UNHCR that was responsible for the refugee status determinations, objected to “unfair criteria” of eligibility, to the distinction between refugees according to their ethnic background, and to the arbitrary detention.126 Beyond the concrete claims, the protests exposed the problematic disaggregation of sovereignty and the equivocality of who is the author of restrictive measures. In this connection of protest against humanitarian government, it is again noteworthy how some of the critique fed into policy developments of UNHCR. Recognizing the problems of encampment, UNHCR has in recent years endorsed the aim to move away from refugee camps and adopted policies regarding alternatives to camps. Considerations for alternatives to camps thereby joined prior policies on refugees living in urban environment. Already in the 1990s, UNHCR had set up a working group to consider the living conditions of urban refugees, resulting in the 1997 Comprehensive Policy on Refugees in Urban Areas.127 This policy mainly emphasized problems of urban refugees and raised arguments in favor of rural settlement but also in favor of containment in camps, receiving for these reasons broad criticisms from the NGO-­ community.128 The 1997 policy was subsequently replaced by the 2009 Urban Refugee Policy, which considerably changed tone and orientation.129 It accounts for the fact that the number of refugees living in urban environment has doubled since 1950,130 and aims for a more comprehensive approach, in which refugees are supported “irrespective of where they are located.”131 This meets with the idea that urban settings can provide individuals with better opportunities to become self-­reliant and organize their lives, involving the possibility to become part of a “real community.”132 More generally, UNHCR has set out self-­reliance of refugees as a central goal.133 This objective

124 Ibid., 26. 125 Moulin/Nyers, op. cit., 366. 126 Ibid., 365. 127 UNHCR, Comprehensive Policy on Refugees in Urban Areas (1997). 128 Patricia Ward, Refugee Cities: Reflections on the development and impact of UNHCR Urban Refugee Policy in the Middle East, Refugee Survey Quarterly 33 (2014) 1, 3. 129 UNHCR, Policy on Refugee Protection and Solutions in Urban Areas (2009). 130 Ibid., 1. 131 Ibid., 4. 132 Slaughter/Crisp, op. cit., 12. 133 Cf. Agenda for Protection, Goal 5; UNHCR, Handbook on Self-Reliance (2006); for a theoretical account cf. Jennifer Hyndman, Refugee Self-Management and the Question of Governance, Refuge 16 (1997) 2, 16.

Humanitarian government   141 is ambivalent as it, on the one hand, can enable more self-­determination, yet, on the other hand, risks resulting in a responsibilization of refugees without changing the surrounding conditions. If self-­reliance is viewed in separation of the actual political and economic conditions of refugees, it can turn into a mere instrument of cost effectiveness, leaving refugees in precarious situations.134 Especially in view of the growing number of protracted refugee situations, UNHCR underlined the need to work towards alternatives to refugee camps. Its 2014 Policy on Alternatives to Camps, applicable in all UNHCR operations, aims to “remove […] restrictions so that refugees have the possibility to live with greater dignity, independence and normality as members of the community, either from the beginning of displacement or as soon as possible thereafter.”135 In summary, the endeavors to seek alternatives to refugee camps reacts to problems, yet UNHCR policies cannot alter the many problems connected to humanitarian government as such. In some way, the reaction seems to replicate a dynamic seen in relation to participatory instruments in refugee camps. A well-­ intended mechanism that recognizes existing problems such as deprival of political voice and self-­determination thereby ends up mostly shifting the problems. Assessing the implementation of the UNHCR Policy on Alternatives to Camps in the Middle East, Patricia Ward has pointed out, for instance, that conditions of protection depend in all circumstances on the continuance of funding.136 Based on studies about urban refugees in Jordan and other Middle Eastern countries, Ward concludes that the influence UNHCR has on the protracted refugee situations should not be overestimated.137 While the policies of UNHCR might improve certain aspects in the assistance, they are situated in much more structural conditions of humanitarian government. In that sense, there have been diverging perspectives on the work of UNHCR in relation to refugee camps. On the one hand, UNHCR is criticized as an agent of donor states that maintains the current deadlock in refugee protection through its own role of substituting protection.138 On the other hand, UNHCR is viewed as filling in gaps of protection left by states, which will be necessary as long as no alternative arrangement is established.139 Ultimately, critiques of refugee camps cannot be regarded in isolation from the situation of refugee protection more globally. When criticizing the existence of refugee camps, one should carefully take into account the particular circumstances in

134 Moulin/Nyers, op. cit., 363. Suzan Ilcan/Kim Rygiel, “Resiliency Humanitarianism”: Responsibilizing Refugees through Humanitarian Emergency Governance in the Camp, International Political Sociology 9 (2015), 333. 135 UNHCR, Policy on Alternatives to Camps (2014), 4. 136 Ward, op. cit., 6. 137 Ward, op. cit., 17. 138 Chimni, op. cit., 362; Hyndman, Managing Displacement, 2. 139 Kagan, “We Live in a Country of UNHCR” – The UN Surrogate State and Refugee Policy in the Middle East (2011).

142   Refugees’ political voice which they emerge. In some cases, the establishment of camps is a compromise when host states would otherwise not be willing to admit refugees to the territory.140 In other cases, camps are set up because states are not able to effectively arrange accommodation and supply for the refugees arriving. In all cases, the persistence of refugee camps over a long duration is a symptom of insufficient structures, either on the national or on the international level. In moving away from humanitarian government in refugee protection, it is impossible to bypass the question of international responsibility-­sharing.

From the critique of humanitarian government to the critique of responsibility-­sharing One key insight from examining problems of refugee camps is that they are to a large extent linked to structural conditions of humanitarian government. While some improvements are certainly possible in how camps are administered, the most fundamental effect of humanitarian government on refugees is the exclusion from access to citizenship. This can be understood in relation to the refugee concept. The refugee concept, as has been explored in the first chapter, refers to the exceptional claim to territorial access because of the immediate danger a person faces. In the concept, the concern of survival is linked to access, which has a far-­reaching political component. In the territorial state, co-­presence is in general linked to the idea of political equality, the immigration of a person corresponds to the possibility of eventually becoming a full member of the community. This linkage between survival and political inclusion is what gives the refugee concept such weight. Yet the linkage is also essential, as the contrary underlines. Humanitarian government breaks up this linkage between survival and political equality. Persons are admitted for the purpose of survival, but they are not admitted with the consequence of possible, eventual political membership. In that sense, humanitarian government brackets the unsettling cosmopolitanism of the refugee concept. Whereas the refugee concept puts into question the unilateral decision about borders and sovereignty of the state, the management of refugees under a humanitarian paradigm is imagined as a neutral measure, which takes place on the territory but not politically inside the state. Such management of refugees results in the far-­reaching deprival of political rights. Chapters 3 and 4 have laid out how citizenship and democracy are both concepts that span demands of openness and closure, thereby depending on the existence of institutions. Refugee camps lack such institutions that guarantee political equality in that they structure interactions over time and allow bringing into effect collective decisions. Even with policies of selective inclusion, humanitarian government remains fundamentally obstructive to political rights of refugees. The problems of humanitarian government cannot be resolved without tackling the broader framework of refugee mobility and responsibility-­sharing

140 Johnson, op. cit., 141.

Humanitarian government   143 between states. Vice versa, to move away from humanitarian government in refugee protection is essential for a viable framework of responsibility-­sharing. The second section of this chapter has discussed how the relationship between host states, UNHCR and donor states can turn into a detrimental triangle in cases of humanitarian government. How this problematic structure is reproducing itself has been pointed out along several aspects. The dependence on funding by states and by private persons and organizations incentivizes humanitarian actors to put the neediness of refugees at the center.141 It favors a framing of situations as emergency and the depiction of refugees as victims.142 Moreover, the need to appeal for funding fosters a clear separation of refugees and surrounding population, as the responsibility of humanitarian actors only extends to refugees and the efficient use of funds is required.143 The financial dependencies make UNHCR also susceptible to influence from donor states, which beside the humanitarian motives of offering relief regularly pursue interests of keeping refugees at distance. In some cases, the assistance in regions of origin corresponds to the preferences of individuals concerned, yet often it results from, or is co-­opted by, strategies of containment.144 Those strategies also bear an effect on the overall task of refugee protection: by framing their arrival as undesirable and investing in hindrance of migration, states attach a negative value to the presence of refugees. When refugees are constructed as “superfluous,” this ultimately not only obstructs refugees’ own choices in migration, but also increases the perceived burden of accepting refugees.145 Most importantly, the triangular relationship of humanitarian government means that each side contributes while refugees are not moving out of refugee status. Protracted refugee situations result from long-­lasting conflicts or regimes that hinder refugees from returning, yet they also result from the lack of a place in which refugees can permanently arrive and become citizens. In the growing debate about responsibility-­sharing, this aspect is often ignored. Responsibility-­sharing has become a focal point especially in the past five years. Already before, scholars have stressed the need to strengthen international cooperation and responsibility-­sharing mechanisms in refugee protection.146 At the outset, the principle of non-­refoulement leads to distribution of

141 Prem Kumar Rajaram, Humanitarianism and Representations of the Refugee, Journal of Refugee Studies 15 (2002) 3, 247. 142 Slaughter/Crisp, op. cit., 6, 7. 143 Kagan, “We Live in a Country of UNHCR” – The UN Surrogate State and Refugee Policy in the Middle East, 6. 144 Hyndman, Managing Displacement, 2. 145 See Dana Schmalz, Global Responsibility Sharing and the Production of Superfluity in the Context of Refugee Protection, in: Stefan Salomon et al (eds.), Blurring Boundaries: Human Security and Forced Migration (2017), 23 (36). 146 Cf. Peter H. Schuck, Refugee Burden-Sharing: A Modest Proposal, Yale Journal of International Law 22 (1997), 243; James Hathaway/R. Alexander Neve, Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, Harvard Human Rights Journal 10 (1997), 115.

144   Refugees’ political voice responsibility for refugees according to geographical proximity. The first country in which a person arrives claiming protection becomes responsible.147 This geographical distribution of responsibility is reinforced through safe third-­country regulations and readmission agreements. While it is pointed out that refugees in many cases benefit the receiving countries,148 the disproportionate share that states neighboring conflict regions take creates severe problems. The GRC, as said above, does not contain any explicit rule on responsibility-­ sharing, although its preamble recommends that governments “act in concert in a true spirit of international cooperation.”149 This commitment has been renewed in the Declaration of State Parties in 2001.150 In its Preamble, the Declaration recognizes the over-­proportional share that developing countries take in refugee protection,151 and stresses that respect by States for their protection responsibilities towards refugees is strengthened by international solidarity involving all members of the international community and that the refugee protection regime is enhanced through committed international cooperation in a spirit of solidarity and effective responsibility and burden-­sharing among all States.152 On that basis, the operative paragraphs recognize the commitment to international cooperation as a necessary precondition of safeguarding the fundamental rights of refugees, including the right to asylum as stated in Article 14 UDHR.153 Furthermore, the Declaration expressed the commitment “to providing, within the framework of international solidarity and burden-­sharing, better refugee protection through comprehensive strategies […].”154 This recognition of the principal character of cooperation changed little, however, for the practice of non-­entrée regimes and the far-­reaching problems of refugee protection. The dysfunctionalities that insufficient responsibility-­ sharing creates for the international system of refugee protection grew.155 2015 marked a moment in which many states acknowledged that the system urgently needed reform in order not to collapse. The negotiations initiated thereafter

147 For this “First country of arrival”-rule in detail cf. James Hathaway, The Rights of Refugees under International Law (2005), 295. 148 Martin Gottwald, Burden Sharing and Refugee Protection, in: Elena Fiddian-Qasmiyeh et al. (eds.), The Oxford Handbook in Refugee and Forced Migrations Studies (2014), 525. 149 Preamble of the GRC, Recommendation D. 150 Declaration of State Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, January 16, 2002, HCR/MMSP/2001/09. 151 Para. 5 of the Preamble of the Declaration of State Parties. 152 Para. 8 of the Preamble of the Declaration of State Parties. 153 Para. 2 of the Declaration of State Parties. 154 Para. 12 of the Declaration of State Parties. 155 James C. Hathaway/Thomas Gammeltoft-Hansen, Non-Refoulement in a World of Cooperative Deterrence, Columbia Journal of Transnational Law 53 (2015) 2, 235; Aleinikoff/Zamore, op. cit., 3.

Humanitarian government   145 resulted first in a draft for a Compact on Responsibility Sharing for Refugees, which states, however, could not agree on. Still, they adopted the New York Declaration in September 2016.156 In its paragraph 68, the Declaration states: We underline the centrality of international cooperation to the refugee protection regime. […] To address the needs of refugees and receiving States, we commit to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees, while taking account of existing contributions and the differing capacities and resources among States. In para. 1 of Annex I on the Comprehensive Refugee Response Framework, the NY Declaration further asserts the “principles of international cooperation and on burden- and responsibility-­sharing.” The New York Declaration foresaw that two separate compacts should be created. Neither of them is thereby legally binding. While the Global Compact on Safe and Orderly Migration is also of some relevance for refugees, the Global Compact on Refugees is the framework in which the considerations on responsibility-­sharing mainly continued. Unlike the prior statements on a principle of responsibility-­sharing, the Global Compact was oriented at agreeing on concrete modalities and provisions.157 The focus on responsibility-­sharing thus continued throughout the negotiations. Although the Compact was criticized for a vague language, it fostered the recognition of responsibility-­sharing as a principle in international refugee law. This principle can be read to assert that refugee protection does not only fall on the state where refugees arrive first but constitutes a joint task. In that sense, it opposes that states withdraw completely from the joint task of providing for refugees. While limited in its content, the principle of responsibility-­sharing offers a legal reference point for calling out evading practices and negotiating in specific situations what a more equitable sharing of responsibility requires. In light of the problems discussed in this chapter, there should moreover be a focus on avoiding situations of humanitarian government. This remained unaddressed in the Global Compact on Refugees, which endorses a “multi-­ stakeholder and partnership approach.”158 It stresses that humanitarian organizations in their assistance to refugees should work together with development organizations. As understandable for a document that is the outcome of long negotiations with numerous participants, it accumulates many aspects and

156 UN GA, New York Declaration for Refugees and Migrants, A/71/L.1, September 13, 2016, para. 68. 157 The zero draft labelled the first section of the Program of Action “Principal modalities for burden- and responsibility-sharing,” the first draft called it “Mechanisms for burden- and responsibility-sharing,” the final version speaks of “Arrangements for burden- and responsibility-sharing.” 158 Global Compact on Refugees, adopted by the UN General Assembly on December 17, 2018 (A/RES/73/151), para. 3.2.

146   Refugees’ political voice v­ iewpoints. However, in seeking to counter the dysfunctionalities of the current system of refugee protection, the recognition of detrimental structures around humanitarian government is essential. In that sense, a focus on political rights of refugees and, closely corresponding, on conditions of mobility is needed.159 While humanitarian work remains indispensable, the aim must be to ensure that responses to flight go beyond immediate relief and pay attention to the perspectives of refugees to regain political membership. In pursuing this aim, how can local political activities be connected to these broad global structures? In reconstructing politics against humanitarian government, the struggles around mobility are one place to look. Mobility allows persons to react to inadequate conditions through their migration choices, balancing unviable arrangements of responsibility-­sharing. Conditions of mobility are one aspect that connects political activities of refugees and global questions of law and policy that shape their situation.

Bibliography Agamben, G., Means without End. Notes on Politics (2000, Minneapolis: University of Minnesota Press). Arendt, H., On Revolution (1963, New York: The Viking Press). Agier, M., Managing the Undesirables – Refugee Camps and Humanitarian Government (2011, Cambridge: Polity Press). Aleinikoff, T. A., From Dependence to Self-­Reliance. Changing the Paradigm in Protracted Refugee Situations. Policy Brief for the Migration Policy Institute (2015), https://reliefweb.int/sites/reliefweb.int/files/resources/TCM-­Protection-Aleinikoff. pdf. Aleinikoff, T. A., The Present, Past, and Future of Refugee Protection and Solutions: Camps, Comprehensive Plans, and Cyber-­Communities, Emory International Law Review 31 (2017), 539. Aleinikoff, T. A./Poellot, S., The Responsibility to Solve: The International Community and Protracted Refugee Situations, Virginia Journal of International Law 54 (2014) 2, 195. Aleinikoff, T. A./Cliffe, S., A Global Action Platform and Fund for Forced Migrants: A Proposal, Fluchtforschungsblog, July 25, 2016, https://blog.fluchtforschung. net/a-­global-action-­platform-and-­fund-for-­forced-migrants-­a-proposal/. Aleinikoff, T. A./Zamore, L., The Arc of Protection. Reforming the International Refugee Regime (2018, Stanford: Stanford University Press). Bakewell, O., Encampment and Self-­Settlement, in: E. Fiddian-­Qasmiyeh/K. Long/G. Loescher/N. Sigona (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014, Oxford: Oxford University Press), 128, doi: 10.1093/oxfordhb/97801 99652433.013.0037. Barnett, M., Refugees and Humanitarianism, in: E. Fiddian-­Qasmiyeh/K. Long/G. Loescher/N. Sigona (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014 Oxford: Oxford University Press), 241.

159 In that sense also Aleinikoff/Zamore, op. cit., 80, 85.

Humanitarian government   147 Benhabib, S., Critique of Humanitarian Reason, Eurozine (2014), www.eurozine.com/ critique-­of-humanitarian-­reason/?pdf. Calhoun, N., UNHCR and Community Development: A Weak Link in the Chain of Refugee Protection?, New Issues in Refugee Research (2010), UNHCR PDES Research Paper No. 191, www.unhcr.org/research/working/4cb47c2f9/unhcr-­communitydevelopment-­weak-link-­chain-refugee-­protection-noel-­calhoun.html. Chimni, B. S., The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies 11 (1998) 4, 350, doi: 10.1093/jrs/11.4.350-a. da Costa, R., The Administration of Justice in Refugee Camps: A Study of Practice, UNHCR Legal and Protection Policy Research Series (2006), www.refworld.org/ docid/4417f9a24.html. Endres de Oliveira, P., Legaler Zugang zu internationalem Schutz – zur Gretchenfrage im Flüchtlingsrecht, Kritische Justiz 49 (2016) 2, 2. Executive Committee of the High Commissioner’s Programme, Reinforcing a Community Development Approach, 20th Meeting of the Standing Committee, February 15, 2001, EC/51/SC/CRP.6. Fassin, D., Humanitarian Reason. A Moral History of the Present (2011, Berkeley: University of California Press). Ferris, E. G., Beyond Borders. Refugees, Migrants and Human Rights in the Post-­Cold War Era (1993, Geneva: World Council of Churches). Fiddian-­Qasmiyeh, E., The Ideal Refugees: Gender, Islam, and the Sahrawi Politics of Survival (2014, Syracuse: Syracuse University Press). Freccero, J./Thuy Seelinger, K., Safe Haven, Sheltering Displaced Persons from Sexual and Gender-­Based Violence, Case study: Thailand (2013, Berkeley: Human Rights Center, University of California/Geneva: UNHCR), www.unhcr.org/51b6e3239.html. Gottwald, M., Burden Sharing and Refugee Protection, in: E. Fiddian-­Qasmiyeh/K. Long/G. Loescher/N. Sigona (eds.), The Oxford Handbook in Refugee and Forced Migrations Studies (2014), 525. Gündoğdu, A., Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants (2015, Oxford: Oxford University Press). Hathaway, J., The Law of Refugee Status (1991, Cambridge: Cambridge University Press). Hathaway, J., The Emerging Politics of Non-­Entrée, Refugees 91 (1992), 40. Hathaway, J. C. The Rights of Refugees under International Law (2005, Cambridge: Cambridge University Press). Hathaway, J. C., A Global Solution to a Global Refugee Crisis, European Papers 1 (2016) 1, 93, doi: 10.15166/2499-8249/793. Hathaway, J. C./Neve, R. A., Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-­Oriented Protection, Harvard Human Rights Journal 10 (1997), 115. Hathaway, J. C./Gammeltoft-­Hansen, T., Non-­Refoulement in a World of Cooperative Deterrence, Columbia Journal of Transnational Law 53 (2015) 2, 235. Hyndman, J., Refugee Self-­Management and the Question of Governance, Refuge 16 (1997) 2, 16. Hyndman, J., Managing Displacement: Refugees and the Politics of Humanitarianism (2000, Minneapolis: University of Minnesota Press). Hyndman, J./Giles, W., Refugees in Extended Exile. Living on the Edge (2017, Abingdon: Routledge), doi: 10.4324/9781315618029. Ilcan, S./Rygiel, K., “Resiliency Humanitarianism”: Responsibilizing Refugees through

148   Refugees’ political voice Humanitarian Emergency Governance in the Camp, International Political Sociology (2015) 9, 333. Inhetveen, K., Die politische Ordnung des Flüchtlingslagers (2010, Bielefeld: Transcript). Janmyr, M., Protecting Civilians in Refugee Camps (2014, Leiden: Brill), doi: 10.1163/9789004256989_001. Jaeger, G., On the History of the International Protection of Refugees, International Review of the Red Cross 83 (2001) 843, 727. Johnson, H., Borders, Asylum and Global Non-­Citizenship (2014, Cambridge: Cambridge University Press). Kagan, M., The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination, International Journal of Refugee Law 18 (2006) 1, 1 doi: 10.1093/ijrl/eei045. Kagan, M., “We Live in a Country of UNHCR” – The UN Surrogate State and Refugee Policy in the Middle East, New Issues in Refugee Research (2011), UNHCR PDES Research Paper No. 201, www.unhcr.org/research/working/4d5a8cde9/live-­countryunhcr-­un-surrogate-­state-refugee-­policy-middle-­east-michael.html. Loescher, G., The UNHCR and World Politics: State Interests vs. Institutional Autonomy, International Migration Review 35 (2001) 1, 37, doi: 10.1111/j.1747-7379.2001.tb00003.x. McAdam, J., Australia and Asylum Seekers, International Journal of Refugee Law 25 (2013) 3, 435, doi: 10.1093/ijrl/eet044. Milner, J., Refugees, the State and the Politics of Asylum in Africa (2009, London: Palgrave). McConnachie, K., Governing Refugees (2014, Abingdon: Routledge). Moulin, C./Nyers, P., “We Live in a Country of UNHCR” – Refugee Protests and Global Political Society, International Political Sociology 1 (2007) 4, 356, doi: 10.1111/j.1749-5687.2007.00026.x. Mwangi, O. G., Securitisation, Non-­Refoulement and the Rule of Law in Kenya: The Case of Somali Refugees, The International Journal of Human Rights 22 (2018) 10, 1318. Nyers, P., Rethinking Refugees. Beyond States of Emergency (2005, Abingdon: Routledge). Olivius, E., Displacing equality? Women’s Participation and Humanitarian Aid Effectiveness in Refugee Camps, Refugee Survey Quarterly 33 (2014) 3, 93, doi: 10.1093/rsq/ hdu009. Rajaram, P. K., Humanitarianism and Representations of the Refugee, Journal of Refugee Studies 15 (2002) 3, 247, doi: 10.1093/jrs/15.3.247. Rancière, J., Disagreement: Politics and Philosophy (1999, Minneapolis: University of Minnesota Press). Schmalz, D., Global Responsibility Sharing and the Production of Superfluity in the Context of Refugee Protection, in: S. Salomon/L. Heschl/G. Oberleitner/W. Benedek (eds.), Blurring Boundaries: Human Security and Forced Migration (2017, Leiden: Brill), 23, doi: 10.1163/9789004326873_003. Schuck, P. H., Refugee Burden-­Sharing: A Modest Proposal, Yale Journal of International Law 22 (1997), 243. Smrkolj, M., International Institutions and Individualized Decision-­Making: An Example of UNHCR’s Refugee Status Determination, in: A. von Bogdandy/R. Wolfrum/J. Bernstorff/P. Dann/M. Goldmann (eds.), The Exercise of Public Authority by International Institutions (2010), 165.

Humanitarian government   149 Soguk, N., States and Strangers: Refugees and the Displacement of Statecraft (1999, Minneapolis: University of Minnesota Press). Slaughter, A./Crisp, J., A Surrogate State? The role of UNHCR in protracted refugee situations, New Issues in Refugee Research (2009), UNHCR PDES Research Paper No. 168, www.unhcr.org/research/working/4981cb432/surrogate-­state-role-­unhcrprotracted-­refugee-situations-­amy-slaughter.html. Suhrke, A./Newland, K., UNHCR: Uphill Into the Future, International Migration Review 35 (2001) 1, 284, doi: 10.1111/j.1747-7379.2001.tb00015.x. Turner, S., Angry Young Men in Camps: Gender, Age and Class Relations Among Burundian Refugees in Tanzania, New Issues in Refugee Research (1999), Working Paper No. 9, www.unhcr.org/research/working/3ae6a0c38/angry-­young-men-­ camps-international-­assistance-changing-­hierarchies-authority.html. Turner, S., Biopolitics and Bare Life in a Refugee Camp. Some Conceptual Reflections, in: Katharina Inhetveen (ed.), Flucht als Politik (2006, Köln: Rüdiger Köppe Verlag), 57. Turner, S., Negotiating Authority between UNHCR and ‘The People’, Development and Change 37 (2006) 4, 759, doi: 10.1111/j.1467-7660.2006.00500.x. Turner, S., What Is a Refugee Camp? Explorations of the Limits and Effects of the Camp, Journal of Refugee Studies 29 (2016) 2, 139, doi: 10.1093/jrs/fev024. UNHCR Statute (1950), Annex of UN GA Resolution 428 (V). UNHCR, Comprehensive Policy on Refugees in Urban Areas, March 25, 1997, www.refworld.org/docid/41626fb64.html. UNHCR, Evaluation and Policy Analysis Unit, The Community Service Function in UNHCR – An Independent Evaluation (2003). UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate (2003). UNHCR, Manual on Operational Protection in Camps and Settlements (2006). UNHCR, The UNHCR Tool for Participatory Assessment in Operations (2006). UNHCR, Handbook on Self-­Reliance (2006). UNHCR, Handbook for Emergencies (3rd edition 2007). UNHCR, A Community-­Based Approach in UNHCR Operations (2008). UNHCR, Policy on Refugee Protection and Solutions in Urban Areas (2009). UNHCR, Policy on Alternatives to Camps (2014). UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2011), HCR/1P/4/ENG/REV.3. UNHCR, Guideline on Statelessness No. 4, HCR/GS/12/04, December 21, 2012. UNHCR, Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (recast) (2015), www.refworld.org/docid/5541d4f24.html. UNHCR, Diagnostic Tool for Alternatives to Camps, 2017 Global Results, www.unhcr. org/59b2a6f07.pdf. UNHCR News Stories, Enthusiastic Turnout for Elections at World’s Largest Refugee Site, August 28, 2013, www.unhcr.org/521de8729.html. Verdirame, G./Harrell-­Bond, B., Rights in Exile. Janus-­faced Humanitarianism (2005, New York: Berghahn). Verdirame, G./Pobjoy, J., The End of Refugee Camps, in: Satvinder Juss (ed.), The Ashgate Research Companion to Migration Law, Theory and Policy (2013, Abingdon: Routledge), 471.

150   Refugees’ political voice Ward, P., Refugee Cities: Reflections on the Development and Impact of UNHCR Urban Refugee Policy in the Middle East, Refugee Survey Quarterly 33 (2014) 1, 77, doi: 10.1093/rsq/hdt024. Weis, P., (ed.), The Refugees Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (1995, Cambridge: Cambridge University Press). Wilde, R., Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law, Yale Human Rights and Development Law Journal 1 (1998) 1, 107. Zieck, M., UNHCR’s Worldwide Presence in the Field (2006, Nijmegen: Wolf Legal).

8 Political representation of refugees in international forums

Demands for representation of refugees on the international level The past few years have been remarkable in how demands for refugees’ presence and representation in international forums grew and gained recognition. This was particularly visible around the process mentioned at the end of last chapter: the 2016 UN Summit on Refugees and Migrants, the negotiations and adoption of the two 2018 Global Compacts, and the first Global Refugee Forum in 2019. With the slogan “nothing about us without us” refugees claim a place at the table when refugee law and policy are debated internationally.1 These developments of particularly the last years are noteworthy and they invite reflections how those claims to a voice can be situated. Where in the structures of democracy and citizenship do those forms of political voice belong? How do they alter perspectives on political participation? By situating the developments theoretically, this chapter also seeks to arrive at benchmarks for further improving refugee participation on the international level. An early example of refugee representation on the international level took place in the context of the Global Consultations 2001. The Global Consultations were launched by UNHCR on the occasion of the 50th anniversary of the Geneva Refugee Convention, with the aim of providing room for a broader debate about the state and tasks of refugee protection. In the course of the consultations, it was an explicit objective to give a voice to refugees and include their perspective. About 500 refugees convened in the National Assembly in Paris and adopted the “Paris Appeal,” a declaration that outlines pressing issues.2 Another meeting of refugees living in Europe resulted in recommendations, including the demand to strengthen refugee communities and to establish national consultative groups linked with UNHCR offices.3

1 Sana Mustafa, Nothing About Us Without Us: Why Refugee Inclusion Is Long Overdue, Refugees Deeply, June 20, 2018. 2 Paris Appeal by Refugees at the French National Assembly, Paris, June 16, 2001. 3 UNHCR, Global Consultations on International Protection, “The Refugee Perspective” – Recommendations, 2001, 5.

152   Refugees’ political voice Little changed regarding refugee representation on the international level in the years immediately after. In 2010–2011, UNHCR convened a series of Dialogues with Refugee Women.4 However, attention to including refugee voices was clearly visible around the UN Summit on Refugees and Migrants September 2016 in New York. The adopted New York Declaration states in its Annex I, when outlining the Comprehensive Refugee Response Framework: A comprehensive refugee response should involve a multi-­stakeholder approach, including national and local authorities, international organizations, international financial institutions, regional organizations, regional coordination and partnership mechanisms, civil society partners, including faith-­based organizations and academia, the private sector, media and the refugees themselves.5 Some commitment to include “refugees themselves” was reflected in the subsequent negotiations for two Global Compacts, the Global Compact on Refugees, and the Global Compact for Safe, Orderly and Regular Migration. Especially in the context of the latter, refugee participation was picked up as a topic.6 However, the participation of refugees remained limited. During the first negotiations of the Global Compact on Refugees (GCR) in July 2017, a member from the Network for Refugee Voices (NRV) was given the floor. The NRV was founded in 2017 by former and present refugees, and campaigns for the inclusion of refugee voices in international negotiations on refugee policy. That one of their representatives was invited to take the floor was a notable step, yet he remained the only refugee in that forum. Throughout the process of the Compact negotiations, refugee participation was a topic in a double sense. First, it took place to a greater extent: refugees organized to be present in the negotiations, to comment on every version of the draft, and to put forward demands regarding the content.7 Second, refugee participation was a core demand on the level the content of the GCR. As Stefan Rother and Elias Steinhilper describe, arriving at a strong wording that demands “meaningful participation of refugees” was a core aim together with a strengthening of the rights dimension of the Compact.8

4 UNHCR, UNHCR’s Dialogues with Refugee Women (2013); see also T. A. Aleinikoff / L. Zamore, The Arc of Protection. Reforming the International Refugee Regime (2018). 5 New York Declaration, Resolution adopted by the General Assembly on September 19, 2016, A/RES/71/1, Annex I, para. 2. 6 See e.g. Social Chance Initiative, Strengthening Refugee Participation in the Global Compact on Refugees: Some Thoughts from the Social Change Initiative. 7 Stefan Rother/Elias Steinhilper, Tokens or Stakeholders in Global Migration Governance? The Role of Affected Communities and Civil Society in the Global Compacts on Migration and Refugees, International Migration 57 (2019) 6, 243 (250). 8 Ibid.

Representation in international forums   153 The GCR was adopted in December 2018 and contains several references to refugee participation. Outlining its aim, it states in paragraph 3: the global compact on refugees intends to provide a basis for predictable and equitable burden- and responsibility-­sharing among all United Nations Member States, together with other relevant stakeholders as appropriate, including but not limited to: international organizations within and outside the United Nations system, including those forming part of the International Red Cross and Red Crescent Movement; other humanitarian and development actors; international and regional financial institutions; regional organizations; local authorities; civil society, including faith-­based organizations; academics and other experts; the private sector; media; host community members and refugees themselves (hereinafter “relevant stakeholders”). This inclusion of “refugees themselves” among relevant stakeholders is significant regarding the Global Refugee Forum that is to take place yearly, as laid down in para. 17 GCR. The Global Refugee Forum is foreseen to be an occasion for assessing commitments and progress regarding the goals outlined in the Compact. The notion of “relevant stakeholders” is then employed numerous further times, including with regard to a Support Platform for host states.9 Moreover, refugee participation is referenced specifically in para. 34, which reads: Responses are most effective when they actively and meaningfully engage those they are intended to protect and assist. Relevant actors will, wherever possible, continue to develop and support consultative processes that enable refugees and host community members to assist in designing appropriate, accessible and inclusive responses. States and relevant stakeholders will explore how best to include refugees and members of host communities, particularly women, youth, and persons with disabilities, in key forums and processes, as well as diaspora, where relevant. Mechanisms to receive complaints, and investigate and prevent fraud, abuse and corruption help to ensure accountability. Finally, para. 106 states that “[s]tates and relevant stakeholders will facilitate meaningful participation of refugees, including women, persons with disabilities, and youth, in Global Refugee Forums, ensuring the inclusion of their perspectives on progress.” In addition to the prior references, this underlines the responsibility for effective inclusion.

9 Global Compact on Refugees, adopted by the UN General Assembly on December 17, 2018 (A/RES/73/151), para. 22.

154   Refugees’ political voice Beyond the negotiations of the Global Compacts on Migration and Refugees under the auspices of UNHCR, other forums reflected the increased claim for refugee participation in the last years. An International Refugee Congress took place in Istanbul in May 2018, including many refugee-­led organizations among the participants. In June 2018, ​​the Network for Refugee Voices (NRV) together with the Australian National Committee on Refugee Women (ANCORW), the Refugee Council of Australia (RCOA) and Independent Diplomat (ID) convened a Global Summit of Refugees in Geneva. The summit served, among other issues, also to discuss possible structures of refugee-­coordination on the global level.10 In December 2019, the First Global Refugee Forum took place, and as foreseen in the GCR, refugee representatives were present. UNHCR has created a Global Youth Advisory Council. Refugee participation has, in summary, increased considerably over these last years, as a practice and as a recognized demand. The participation during the Global Compact negotiations set an example, which was more than merely symbolic. Stefan Rother and Elias Steinhilper suggest that the influence of refugees in the negotiations of the Compacts was successful also because they were able to build on prior networks of refugee activism.11 Finally, the text of the GCR is a basis for further developments in that regard. As the presence of refugees is explicitly demanded for future Global Refugee Forums, it allows networks for representation to grow and will likely encourage other forums to follow suit. The recognition that refugees ought to be included in some way in deliberations about refugee protection builds on assumptions about autonomy, non-­ domination and political voice. The claim “nothing about us without us” is intuitive. Refugees are the people who are directly affected by rules and policies of refugee law. However, the representation of refugees raises several questions. Who can speak for refugees? When refugees are given “a voice” in international negotiations, is this an act of political inclusion or, absent any actual power, mere symbolism? What are the potentials for refugee participation on the international level in future? The following will explore some of the theoretical questions behind refugee participation in international forums.

Sites of participation: UNHCR as a framework for refugee voices Before turning to the question who participates and what are viable criteria, it should be clarified what the sites and procedures for such participation are. This means considering in which forums refugee law is developed today. Unlike in a

10 Stefan Rother/Elias Steinhilper, op. cit., 251; Mauricio Viloria/Diana Ortiz/Najeeba Wazefadost/Mohammed Badran, The Global Summit of Refugees and the Importance of Refugee Self-representation, Forced Migration Review 59 (2018), 62. 11 Stefan Rother/Elias Steinhilper, op. cit., 247.

Representation in international forums   155 domestic legal system, no central legislative and judiciary exist as main actors in the development and interpretation of the law. International law is created through treaties and as customary law through state practice and opinio juris. International courts can have a significant influence on the development through their interpretation. In the case of refugee law, the main international treaties are the GRC and the 1967 Protocol and human rights treaties such as the Convention against Torture (CAT) or the Convention on the Rights of the Child (CRC) are relevant for refugee protection. The principle of non-­ refoulement is widely seen as a principle of customary international law.12 These pillars of international refugee law are comparably static. The interpretation by courts has meant a development in some areas such as the grounds of persecution, but there have been no endeavors for new treaty law in the last years. Moreover, as there exists no international court that would have an overarching authority for interpreting international refugee law, and the interpretations by domestic courts differ. Beside the direct creation and interpretation of law, conditions of refugee protection are shaped globally also through evolving discourses and through agreements that are not formally binding. Against that background, there are three sites to particularly look at regarding the development of international refugee law and practices of protection today. First, the framework of UNHCR is where developments take place most continuously and within certain structures. Through interpretative documents, UNHCR contributes to the rules of refugee protection and the creation of those documents forms one site in which influence is exercised. Second, exceptional processes such as the negotiation of the Global Compact are important moments in which intentions regarding refugee protection are declared and certain soft rules adopted. Third, various international meetings, including such processes like the Compact negotiations, are occasions in which a framing of issues and agenda-­setting takes place. While the shaping of discourses is, beyond specific meetings, a continuous process, those meetings represent a site in which refugee participation can play a role. In the framework of UNHCR, new challenges are debated, policies for UNHCR operations drafted, and legal developments such as judgments and state legislation assessed and systematized. UNHCR intervenes in important court proceedings and issues numerous documents that range from internal summaries, over collections of statistical data and factual information, to policy documents on the interpretation and implementation of refugee law. Some of these documents address UNHCR staff, as for instance Manual on Operational Protection in Camps and Settlements or the Procedural Standards for Refugee Status Determination under UNHCR’s Mandate. Other documents address

12 Guy Goodwin-Gil/Jane McAdams, The Refugee in International Law (2007), 201; cf. also UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93.

156   Refugees’ political voice states or a general public. Corinne Lewis describes the ensemble of documents that express UNHCR’s views on refugee law as “UNHCR doctrine.”13 The documents can be divided into information and policy documents, the former comprising, for example, statistical data and summaries, such as the Global Reports or the various country information documents. Policy documents comprise the Handbook and Guidelines on International Protection, further Guidelines, the Guidance Notes (as well as Notes and Background Notes), Recommendations, Handbooks, and Positions. None of these documents is formally binding on states or other external actors. The Handbook and Guidelines on International Protection are the most influential documents issued by UNHCR. The Handbook on Procedures and Criteria for Determining Refugee Status offers explanations and concretizations on single elements in the refugee definition and other provisions of the GRC. It was issued for the first time on the invitation by the UNHCR Executive Committee and draws on prior published positions of UNHCR, on state practice, court decisions, and academic opinions.14 While the Handbook resembles a commentary to the GRC, its normative authority also stems from the role of UNHCR as central international body for refugee protection. The Guidelines on International Protection complement the Handbook, elucidating specific aspects or circumstances of flight, such as gender-­related persecution or child asylum claims. Both the Handbook and the Guidelines have been referred to by courts in interpreting the Geneva Refugee Convention.15 As they include normative directions and influence the practice of refugee protection, it has been suggested that they amount to a form of soft-­law.16 The term “soft-­law” indicates that documents, without being formally binding, have a considerable normative effect, either by influencing the interpretation of treaty law, or by creating rules in an otherwise unregulated field. It is dispensable here to enter into details of the academic debate about the nature of “soft-­law.”17 Relevant in this context is that in the otherwise rather static field of international refugee law, these docu-

13 Corinne Lewis, UNHCR and International Refugee Law (2012), 60. 14 Cf. Volker Türk, Foreword, in: UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2011). 15 Jane McAdam, Interpretation of the Convention, in: Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011), 112 (para. 118/119). 16 Mark Pallis, The Operation of UNHCR’s Accountability Mechanisms, NYU Journal of International Law and Politics 37 (2005), 869 (874); Satvinder Singh Juss, The UNHCR Handbook and the Interface between “Soft Law” and “Hard Law” in International Refugee Law, in: Singh Juss/Harvey (eds.), Contemporary Issues in Refugee Law (2013), 31; Corinne Lewis, UNHCR and International Refugee Law (2012), 76, 87. 17 E.g. Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, Michigan Journal of International Law 12 (1991), 420; Matthias Goldmann, We Need to Cut of the Head of the King: Past, Present, and Future Approaches to International Soft Law, Leiden Journal of International Law 25 (2012), 335.

Representation in international forums   157 ments constitute one dynamic factor. In light of this role, it is worth examining closer who participates in the creation of these documents and in which places refugee voices enter the conversation. Much of the drafting of policy papers takes place in internal UNHCR procedures. The Guidelines for International Protection are drafted in a largely formalized procedure: the UNHCR Department of International Protection (DIP) initiates the drafting of new Guidelines, formulations are developed by the Protection Operations and Legal Advice Section (POLAS) in cooperation with academic counselors, non-­governmental organizations (NGOs), and other international organizations.18 Civil society groups, including refugee-­led groups, might participate in these stages as selected organizations. The Notes and further policy documents are equally created by POLAS, yet in a less formalized procedure, in which NGOs act in a counseling function.19 Furthermore, the UNHCR Executive Committee issues Conclusions, which have strong political authority.20 In the Executive Committee, state representatives advise the work of UNHCR; it meets in plenary session annually and a Standing Committee meets about three times per year. Executive Committee Conclusions are formulated according to the Executive Committee Rules of Procedures, which equally foresee the consultation of NGOs.21 Moreover, UNHCR holds Annual Consultations with NGOs, during which topical issues in refugee protection are discussed. The consultations take place in Geneva in the period before the UNHCR Executive Committee meetings. A previously determined rapporteur summarizes the results of the Annual Consultations for the Executive Committee. In the Executive Committee meeting itself, selected NGOs can participate as observers.22 These are instances in which voices of refugees might enter the debate, and they also serve as occasions around which migrant activism outside the formal consultations organizes. This links to the second aspect: governance operates not only through direct rules but also through the framing of issues and the discourses that are thereby created. Stefan Rother describes in that regard how migrant organization have for many years worked to contribute to the agenda-­setting and framing of migration questions.23 Important in that endeavor has been not only the presence in formal negotiations, but also the organization of parallel events. At these occasions, Rother describes, migrant organizations are able to build alliances

18 Cecilie Schjatvet, The Making of UNHCR’s Guidance and its Implementation in the National Jurisdiction of the United Kingdom, Norway and Sweden (2010), 17. 19 Ibid., 23. 20 James C. Hathaway, The Rights of Refugees under International Law (2005), 113. 21 Cf. Rules 39–41, UN General Assembly, Rules of Procedure of the Executive Committee of the High Commissioner’s Programme (2016). 22 Ibid. 23 Stefan Rother, A Tale of Two Tactics: Civil Society and Competing Visions of Global Migration Governance from Below, in: Martin Geiger/Antoine Pécoud (eds.), Disciplining the Transnational Mobility of People (2013), 41 (49).

158   Refugees’ political voice that increase the joint influence through persuasion.24 Finally, multilateral negotiations such as those leading to the New York Declaration and the two Global Compacts on Migration and Refugees are sites in which the presence of refugees can be fostered. Not only do they offer the opportunity to present opinions and concerns, but they also create attention among a transnational public.

Civil society groups between voice and advocacy Refugee participation in international forums is in many ways situated in the participation of civil society organizations. It is mostly within the procedures that foresee the involvement of NGOs that refugees can enter negotiations. Their participation in some way parallels questions of NGO participation, and NGOs can also be vehicles for refugee voices. This said, there are two sets of questions to be considered. First, the broader debate about a democratic role of civil society organizations and, second, the claim for refugee participation more specifically. Civil society is a term that has been used very differently in different periods. As Robert Fine describes, civil society was first used to contrast a state of nature, then to describe a sphere between the state and private life.25 In the more recent democratic theory debate, civil society references the sphere of public exchange and activities that is independent from state institutions.26 To differing degrees, the term “civil society” is understood to imply an orientation at political issues.27 Being situated between formal political structures and the private realm makes the notion of civil society subject to varying uses and understandings depending on the conception of the relationship between the private and the political, and between the political and the state.28 Correspondingly diverse are the functions ascribed to civil society, which on the one hand embodies a sphere outside regulation by the state, but at the same time constitutes an essential source for the democratic system.29 From this general role of civil society for democracy, the role of civil society groups as particular actors must be distinguished. Civil society groups range from spontaneous movements or loosely organized groups to highly professionalized and transnationally operating NGOs. This diversity affects the forms of interaction as well as the democratic role attributed to the groups.

24 Ibid., 55. 25 Robert Fine, Civil Society Theory, Enlightenment and Critique, in: Robert Fine/Shirin Rai (eds.), Civil Society: Democratic Perspectives (1997), 7 (8). 26 Alejandro Colás, International Civil Society (2002), 26. 27 Jan Aart Scholte, Civil Society and Democracy in Global Governance, Global Governance 8 (2002) 3, 281 (284). 28 With reference i.a. to the starkly opposing approaches of Hegel and Arendt, Jean L. Cohen/Andrew Arato, Civil Society and Political Theory (1992), 177; cf. also Ottfried Höffe, Democracy in an Age of Globalisation (2007), 134, 135. 29 Habermas, Between Facts and Norms (1996), 299, 329.

Representation in international forums   159 The presence of civil society organizations in international forums has been a growing practice of the last decades. The system of the United Nations foresees the cooperation with civil society organizations in several ways.30 Article 71 of the UN Charter provides for the consultation of the Economic and Social Council (ECOSOC) with non-­governmental organizations for “matters within its competence.” ECOSOC has specified the notion of non-­governmental organizations by laying down criteria in a resolution on “principles to be applied in the establishment of consultative relations.”31 In order to qualify as non-­ governmental organizations groups must exist independently from state structures and financial support by states must be transparent.32 At the same time, ECOSOC requires groups to be “of representative character and of recognized international standing,”33 and to have a sufficiently transparent and democratic internal structure.34 Regarding refugee protection, the involvement of civil society organizations goes back to the very beginnings. Participants in the drafting of the Geneva Refugee Convention included beside state representatives also representatives of non-­governmental organizations.35 The Statute of the UNHCR mentions civil society organizations in the description of its mandate, stating that the High Commissioner “shall provide for the protection of refugees […] by […] establishing contact in such manner as he may think best with private organizations dealing with refugee questions; Facilitating the co-­ordination of the efforts of private organizations concerned with the welfare of refugees.36 The formulation “private organizations” thereby is imprecise as this could also encompass commercial organizations. That civil society organizations are meant becomes clear when the Statute is read together with Article 71 UN-­Charter. The number and role of civil society organizations, in general as well as in the context of refugee protection, grew exponentially after 1990.37 Following this growth, UNHCR conducted several regional consultations with civil society organizations and convened a conference in Oslo in 1994. Whereas NGOs had

30 Cf. for an overview on various frameworks for cooperation www.un.org/en/sections/ resources/civil-society/index.html. 31 UN ECOSOC Res. 1296 (XLIV) from May 23, 1968, §§ 1–11. 32 Ibid., § 8. 33 Ibid., § 4. 34 Ibid., § 7. 35 This comprised e.g. Caritas Internationalis, The Commissioner of the Churches on International Affairs, the Co-ordinating Board of Jewish Organizations, and the International Committee of the Red Cross. Cf. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Thirty-third Meeting, November 30, 1951. 36 Statute of the Office of the United Nations High Commissioner for Refugees, para. 8 h and i. 37 Eve Lester, A Place at the Table: the Role of NGOs in Refugee Protection: International Advocacy and Policy-making, Refugee Survey Quarterly 24 (2005) 2, 125.

160   Refugees’ political voice long played an important role in the material assistance of refugees, they were now increasingly also conceived as intellectual partners.38 The Plan of Action following the Oslo Conference foresaw inter alia a more far-­reaching participation of civil society organizations in the drafting of policy documents.39 In recent years, there has been a continuously high presence of non-­governmental organizations in many forums, and many international bodies have put in place procedures for consulting and cooperating with NGOs.40 In the discussion about the democratic legitimacy of international law and policy, the role of civil society groups has been a central issue.41 This includes the questions to what extent an inclusion of such groups is desirable, whether their participation increases the democratic quality of decisions and procedures, and whether there are prerequisites as to which groups should be included. While international law is based on the consent of states, the representation of individuals through state deputies is very mediated in international forums. Civil society groups can add in these circumstances differing perspectives and channel claims alongside states. It is often through the influence of civil society organizations that regulation is taken on an issue on the international level or that additional aspects are taken into account.42 Civil society organizations can mediate concerns and bridge the international debate with local debates, for instance by translating highly abstract or technical discourses.43 Moreover, civil society organizations might strengthen in particular the voices of marginalized groups.44 In light of these potential contributions, can the involvement of civil society organizations be understood as democratic? As has been discussed in Chapter 4, there are propositions that base democracy beyond the state essentially on the involvement of NGOs.45 Others have underscored the democratizing effects of NGO involvement, but also cautioned against overstating the power that NGO participation alone has.46 In assessing the role of civil society groups, the

38 Ibid., 135. 39 Recommendation 2 of the Oslo Declaration and Plan of Action (1994). 40 René Urueña, No Citizens Here: Global Subjects and Participation in International Law (2012), 231. 41 Cohen/Arato, op. cit., 29 with an overview; cf. also the discussion in Chapter 4. 42 Nicole Deitelhoff, (Is) Fair Enough? – Legitimation internationalen Regierens durch deliberative Verfahren, in: Niesen (ed.), Transnationale Gerechtigkeit und Demokratie (2012), 110, 111. 43 Jens Steffek, Accountability und politische Öffentlichkeit im Zeitalter des globalen Regierens, in: Peter Niesen (ed.), Transnationale Gerechtigkeit und Demokratie (2012), 297. 44 Brigitte Beauzamy, Transnational Social movements and Democratic Legitimacy, in: Eva Erman/Anders Uhlin (eds.), Legitimacy Beyond the State? Re-examining the Democratic Credentials of Transnational Actors (2010), 114. 45 Terry Macdonald, Global Stakeholder Democracy (2008), 105; see also Patrizia Nanz/Jens Steffek, Global Governance, Participation and the Public Sphere, Government and Opposition 39 (2004) 2, 314. 46 Scholte, op. cit., 293, 300. Cf. also Jochen von Bernstorff, Zivilgesellschaftliche Partizipation in Internationalen Organisationen, in: Brunkhorst (ed.), Demokratie in der Weltgesellschaft (2009), 282 (294).

Representation in international forums   161 meaning of representation is one focal point. As has been developed above, this double layer of meaning that is involved in the concept of representation causes a certain equivocation: representation is the “making like present,” but also the “speaking instead of ” and “speaking in the name of.”47 The interest representation by NGOs clearly differs from elected representation in terms of a clear link between the represented and the representing, yet the original vagueness of the concept makes is harder to draw a line why the latter would be democratic and the former not. Whether one view it as a matter of category or of degree, the measure of control that the represented have over the delegate is crucial. Where such control is absent, the representation might still be conceived as an additional democratic factor but must be weighed against more solid forms of political influence. Given these considerations, the democratic role of NGOs depends also on their respective character and internal organization. Internal structures of organizations can to a different degree allow for collective influence.48 Moreover, there is a considerable span in the size of groups. Structures for participation in international forums favor the influence of groups that meet conditions of financial resources, mobility and language skills. This tends to advantage larger groups from the Global North.49 In that context, it has been warned that the inclusion of civil society organizations can work as a form of window-­dressing and auto-­legitimation by international institutions.50 This cautioning goes hand in hand with a call to focus on smaller groups. In addition, however, scholars have pointed out the importance of alliances and networks between groups of different sizes and backgrounds.51 In the context of refugee protection, it is a helpful lens to distinguish a focus on voice and a focus on advocacy. This does not counter the importance of alliances but rather forms a prerequisite for understanding where such alliances can arise. Some organizations counted under civil society groups are composed by persons who speak for themselves, as refugees or as former refugees. Other groups mainly engage in advocacy for a certain cause or constituency. The claim that refugees should be included in international negotiations around refugee law clearly concern the realm of voice rather than advocacy. However, can the participation of some individuals be seen as representing refugees more generally? While the distinction of voice and advocacy can structure reflections about legitimacy, there is no clear delimitation. Any collective involves processes in

47 See in general Hanna Pitkin, The Concept of Representation (1972), 2. 48 Louise Amoore/Paul Langley, Ambiguities of Global Civil Society, Review of International Studies 30 (2004) 1, 89. 49 Leon Gordenker/Thomas G. Weiss, NGO Participation in the International Policy Process, Third World Quarterly 16 (1995) 3, 553; Scholte, op. cit., 296; Lester, op. cit. 132. 50 James D. Ingram, Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (2013), 139. 51 Deitelhoff, op. cit., 111; John S. Dryzek, Legitimacy and Economy in Deliberative Democracy, Political Theory 29 (2001) 5, 651 (664).

162   Refugees’ political voice which actors claim to speak for a “we,” which as such is never immediately present.52 Every collective expression makes the claim that there is a group that can formulate an opinion. The claim of speaking for a group, or of a group speaking, is thus first of all an assertion of that group.53 This expression in the name of a group is necessary for political processes in larger units, yet it also involves a first separation and structure. To situate the claims and possibilities for political inclusion of refugees, there is a further need to distinguish the role of interests and opinions.

Toward a better inclusion of refugee voices on the international level Looking at the involvement of civil society in international forums, a first important distinction is between refugee participation and advocacy. Yet the participation of refugees deserves closer examination with view to the basis of the claim and, correspondingly, the possible creation of structures. What gives voice another political weight than advocacy and who can speak for refugees? In this inquiry, Hannah Arendt’s thinking about interests and opinions as two aspects of the political process is illuminating. Reflecting about the French and the American Revolution, Arendt writes: Interest and opinion are entirely different political phenomena. Politically, interests are relevant only as group interests and for the purification of such group interests it seems to suffice that they are represented in such a way that their partial character is safeguarded under all conditions, even under the condition that the interest of one group happens to be the interest of the majority. Opinions, on the contrary, never belong to groups but exclusively to individuals, who ‘exert their reason coolly and freely’, and no multitude, be it the multitude of a part or of the whole society, will ever be capable of forming an opinion. Opinions will rise wherever men communicate freely with one another and have the right to make their views public; but these views in their endless variety seem to stand also in need of purification and representation.54 The distinction between interests and opinions reflects the irreducible tension between stability and openness of politics. Interests and opinions in that sense are both indispensable for political processes, yet opinions constitute the primordial phenomenon as the immediate views that emanate in the contact with other persons and the world. Interests, by contrast, are the more aggregated positions of groups, they portray what is of relevance “between persons”

52 Judith Butler, Notes Toward a Performative Theory of Assembly (2015), 166. 53 Benhabib, The Rights of Others (2004), 175. 54 Arendt, On Revolution (1963), 226, 227.

Representation in international forums   163 (­ inter-­esse).55 Arendt in that sense views a bicameral system to combine the representation of interests, for instance in the American Senate, and the representation of opinions, for instance in the House of Representatives.56 With a view to the international level today, juxtaposing interests and opinions is illuminating because it explains how interest representation and advocacy have their place but alone cannot make up democratic politics: the dynamic processes of exchange and opinion-­formation are indispensable in that regard. In tendency, the international level favors the representation of interests. Given the great number of persons concerned, the stabilizing factor of interests has much weight. Yet without the space for to opinions, law and governance unavoidably lose legitimacy.57 Politics mean that persons do not simply enter into a negotiation of interests but encounter each other in an exchange, in which positions might be altered and in which policies are debated with view to a common good. These considerations further explain how voice and advocacy differ in their democratic role. While advocacy groups mostly represent interests, groups that speak for themselves to a greater degree fall in this realm of opinion representation. Moreover, the juxtaposition of interests and opinions underlines the significance of internal processes within organizations. Those processes allow communicating and aggregating opinions and challenging assumptions about what the interests of a constituency are. In addition, the distinction of opinions and interest is significant in the case of refugees because state-­centric processes of opinion representation are not available. There is, in other words, a particular challenge how refugee participation in international forums can include the communication and representation of opinions. Any representation has to aggregate opinions: this is true also for elected representation, where people choose among parties or certain programs. What is central, however, is the availability of choices and the power to reopen the aggregation of opinions, for instance by challenging the combination of issues in a program or by creating a new party. Whereas channels of election are widely foreclosed to refugees, these aspects of opinion representation should also guide the search for political inclusion of refugees. In some smaller respects, procedures can strive for enlarging the space for opinions. Framing refugee participation as “the refugee voice” should be avoided, as it wrongly suggests that positions of refugees could be brought down to one perspective. While interests might overlap to a greater degree, refugees will bring, based on their diverse experiences and reflections, a range of opinions. Moreover, the distinction helps stressing that refugees’ participation should consist in more than an expression of their needs but should include their perspectives on the overall questions of refugee law and policy.

55 Ibid., 227. 56 Ibid., 226. 57 Cf. ibid., 228.

164   Refugees’ political voice At the moment, the increased recognition of the claim to refugee inclusion offers a starting point for adapting and introducing procedures in that regard. In light of the developed, the aim thereby should be to give room to refugee organizations with their specific experiences and to uphold space for diverse and contesting voices. In the context of the UNHCR Annual Consultations and the Executive Committee Meeting, this plurality should be a guiding consideration as well. In addition, the conditions of being present in international forums must be assessed with view to the particular restrictions to mobility that many refugees face. Travelling to international meetings is open only to very few, and this shapes the selection of those who can speak as refugees. Beside existing forms of participation, new avenues are to be considered. Alexander Aleinikoff suggested in a paper in 1992 that tripartite commissions might be founded for the matter of repatriation, consisting of representatives of the host country, the country of origin, and refugees.58 Beyond repatriation, such tripartite commissions are conceivable for several issues, for instance when responsibility-­ sharing is debated among states. New technologies might allow bringing in voices of refugees who cannot travel to meetings in persons. More broadly, digitalization might enable communicative processes over distance that bridge to some extent the gap of co-­presence that affects the making of refugee law and the claiming of rights. In summary, the growing endeavors to include refugees on the international level represents a chance although much of the existing measures remain mostly symbolic. Whereas one must be careful not to let symbolic inclusion pacify the demand for actual influence, one should also not discard the development too easily. The statements in the New York Declaration and the Global Compact for Refugees are important expressions that the systemic lack of refugees’ political participation is recognized.

Bibliography Aleinikoff, T. A., State-­Centered Refugee Law: From Resettlement to Containment, Michigan Journal of International Law 14 (1992) 1, 120. Aleinikoff, T. A./Zamore, L., The Arc of Protection. Reforming the International Refugee Regime (2018, Stanford: Stanford University Press). Amoore, L./Langley, P., Ambiguities of Global Civil Society, Review of International Studies 30 (2004) 1, 89, doi: 10.1017/S0260210504005844. Arendt, H., On Revolution (1963, New York: The Viking Press). Beauzamy, B., Transnational Social Movements and Democratic Legitimacy, in: Eva Erman/Anders Uhlin (eds.), Legitimacy Beyond the State? Re-­examining the Democratic Credentials of Transnational Actors (2010, Berlin: Springer), 114. Benhabib, S., The Rights of Others (2004, Cambridge: Cambridge University Press). von Bernstorff, J., Zivilgesellschaftliche Partizipation in Internationalen Organisationen, in: Hauke Brunkhorst (ed.), Demokratie in der Weltgesellschaft (2009, Baden-­Baden: Nomos), 282.

58 T. Alexander Aleinikoff, State-Centered Refugee Law: From Resettlement to Containment, Michigan Journal of International Law 14 (1992) 1, 120 (137).

Representation in international forums   165 Butler, J., Notes Toward a Performative Theory of Assembly (2015, Boston: Harvard University Press). Cohen, J. L./Arato, A., Civil Society and Political Theory (1992, Cambridge: MIT Press). Colás, A., International Civil Society (2002, Cambridge: Polity Press). Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Thirty-­third Meeting, November 30, 1951, www.unhcr.org/en-­us/­ protection/travaux/3ae68cde14/conference-­p lenipotentiaries-status-­r efugeesstateless-­persons-summary.html. Deitelhoff, N., (Is) Fair Enough? – Legitimation internationalen Regierens durch deliberative Verfahren, in: Peter Niesen (ed.), Transnationale Gerechtigkeit und Demokratie (2012, Frankfurt am Main: Campus), 103. Dryzek, J. S., Legitimacy and Economy in Deliberative Democracy, Political Theory 29 (2001) 5, 651. Dupuy, P.-M., Soft Law and the International Law of the Environment, Michigan Journal of International Law 12 (1991), 420. Ferris, E. G., Beyond Borders. Refugees, Migrants and Human Rights in the Post-­Cold War Era (1993, Geneva: World Council of Churches). Fine, R., Civil Society Theory, Enlightenment and Critique, in: Robert Fine/Shirin Rai (eds.), Civil Society: Democratic Perspectives (1997, London: Routledge), 7. Goldmann, M., We Need to Cut of the Head of the King: Past, Present, and Future Approaches to International Soft Law, Leiden Journal of International Law 25 (2012), 335, doi: 10.1017/S0922156512000064. Goodwin-­Gil, G./McAdams, J., The Refugee in International Law (3rd ed. 2007, Oxford: Oxford University Press). Gordenker, L./Weiss, T.G. NGO Participation in the International Policy Process, Third World Quarterly 16 (1995) 3, 553. Habermas, J., Between Facts and Norms (1996, Cambridge: The MIT Press). Hathaway, J. C., The Rights of Refugees under International Law (2005, Cambridge: Cambridge University Press). Höffe, O., Democracy in an Age of Globalisation (2007, Berlin: Springer). Ingram, J. D., Radical Cosmopolitics. The Ethics and Politics of Democratic Universalism (2013, New York: Columbia University Press). Juss, S. S., The UNHCR Handbook and the Interface between “Soft Law” and “Hard Law” in International Refugee Law, in: Satvinder Singh Juss/Colin Harvey (eds.), Contemporary Issues in Refugee Law (2013, Cheltenham: Elgar), 31. Lester, E., A Place at the Table: the Role of NGOs in Refugee Protection: International Advocacy and Policy-­making, Refugee Survey Quarterly 24 (2005) 2, 125, doi: 10.1093/rsq/hdi030. Lewis, C., UNHCR and International Refugee Law (2012, London: Routledge). McAdam, J., Interpretation of the Convention, in: Andreas Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – a Commentary (2011, Oxford: Oxford University Press). Macdonald, T., Global Stakeholder Democracy (2008, Oxford: Oxford University Press). Mustafa, S., Nothing About Us Without Us: Why Refugee Inclusion Is Long Overdue, Refugees Deeply, June 20, 2018, www.newsdeeply.com/refugees/community/ 2018/06/20/nothing-­about-us-­without-us-­why-refugee-­inclusion-is-­long-overdue. Nanz, P./Steffek, J., Global Governance, Participation and the Public Sphere, Government and Opposition 39 (2004) 2, 314.

166   Refugees’ political voice Pallis, M., The Operation of UNHCR’s Accountability Mechanisms, NYU Journal of International Law and Politics 37 (2005), 869. Paris Appeal by Refugees at the French National Assembly, Paris, June 16, 2001; www. unhcr.org/protection/globalconsult/3b83c58d4/paris-­a ppeal-refugees-­f renchnational-­assembly.html. Pitkin, H., The Concept of Representation (1972, Berkeley: University of California Press). Rother, S./Steinhilper, E., Tokens or Stakeholders in Global Migration Governance? The Role of Affected Communities and Civil Society in the Global Compacts on Migration and Refugees, International Migration 57 (2019) 6, 243, doi: 10.1111/imig.12646. Rother, S., A Tale of Two Tactics. Civil Society and Competing Visions of Global Migration Governance from Below, in: Martin Geiger/Antoine Pécoud (eds.), Disciplining the Transnational Mobility of People (2013, London: Palgrave), 41. Schjatvet, C., The Making of UNHCR’s Guidance and its Implementation in the National Jurisdiction of the United Kingdom, Norway and Sweden (2010), Research Report for the Norwegian Directorate of Immigration, www.udi.no/globalassets/ global/forskning-­fou_i/beskyttelse/the-­making-of.unhcrs-­guidance.pdf. Scholte, J. A., Civil Society and Democracy in Global Governance, Global Governance 8 (2002) 3, 281. Social Chance Initiative, Strengthening Refugee Participation in the Global Compact on Refugees: Some Thoughts from the Social Change Initiative, www.unhcr.org/events/ conferences/5ad9eaf57/strengthening-­refugee-participation-­global-compact-­refugees. html. Steffek, J., Accountability und politische Öffentlichkeit im Zeitalter des globalen Regierens, in: Peter Niesen (ed.), Transnationale Gerechtigkeit und Demokratie (2012, Frankfurt am Main: Campus), 297. Türk, V., Foreword, in: UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (3rd edition, 2011). UN General Assembly, Rules of Procedure of the Executive Committee of the High Commissioner’s Programme (2016), A/AC.96/187/Rev.8. UNHCR, Global Consultations on International Protection, “The Refugee Perspective” – Recommendations (2001). UNHCR, The Principle of Non-­Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93. UNHCR, Partnership in Action (PARinAC), Oslo Declaration and Plan of Action (1994), www.refworld.org/docid/3ae68f3d8.html. UNHCR, UNHCR’s Dialogues with Refugee Women, 14 February 2013, www.­ refworld.org/docid/5231b1214.html Urueña, R., No Citizens Here: Global Subjects and Participation in International Law (2012, Leiden: Brill). Viloria, M./Ortiz, D./Wazefadost, N./Badran, M., The Global Summit of Refugees and the Importance of Refugee Self-­Representation, Forced Migration Review 59 (2018), 62.

Outlook

Key questions of justice today are transnational questions. Conditions of health, of wealth, of security and of peace are all subject to global interdependencies. States are important units and actors, yet the living conditions of people interdepend across borders in multiple ways. These interdependencies also affect migrations. Obviously, migration has always been a social reality. Yet with a more closely interconnected and interdependent world, both opportunities and necessities also influence contemporary migration. On the one hand, mobility thereby mirrors global inequalities: borders are permeable to a starkly different degree depending on one’s passport. On the other hand, migration works as a marker for interdependencies where these would otherwise be omitted. When political conflicts, environmental degradation, or ravaging poverty cause persons to migrate, they bring to awareness elsewhere that we live indeed in one world. Immanuel Kant writes in 1795 about the right of the stranger not to be rejected at the border if that would cause his destruction, calling it the idea of a “cosmopolitan right.”1 He relates this idea later with the statement that the connection between the nations of the earth has grown so close that “a violation of right in one part of the world is felt all over it.”2 If that was the description at the end of the eighteenth century, what are we to say about the interconnectedness across the world today, and its relevance for law? Refugees indeed constitute in many cases messengers, who with their physical presence oblige people not to ignore hardship elsewhere. Yet to what extent they can do so, to what extent they are received and not hindered from even coming into proximity, to what extent “the violation of right” is actually felt, is the subject of fierce opposition. With increasing global interdependencies, the struggles over mobility have not flattened but intensified. Migration is stimulated by globalization and itself a connecting factor; at the same time it is also through the regulation of migration that inequalities are upheld. As Achille Mbembe writes:

1 Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903), 137. 2 Ibid., 142.

168   Outlook “The capacity to decide who can move, who can settle, where and under what conditions is increasingly becoming the core of political struggles.”3 This book has suggested that the refugee concept is a starting point of a concrete universalism: refugees mark the fact that we live in one world. It is the legal relevance of the refugee concept that makes it such an important lens in assessing struggles over mobility and political equality today. In the Introduction, I have called the refugee concept the block in the door of the territorial state. As the concept that limits the state’s discretion in regulating migration, the refugee concept is a lever for many questions. It points to the fact that rejecting any obligations towards persons outside the state citizenry might be possible, yet only at the price of emptying out of the values that underlie modern law: human equality and freedom. From that basic recognition does not yet follow much. Towards whom should obligations extend, and what should these obligations consist in? These are political questions, not questions for which a right answer could be found in an academic study. Yet the processes in which these political questions are debated are themselves not confined by territorial borders. Territorial institutions are the basic units for most legal decision-­making, yet it is precisely the political voice and influence beyond these delimitations that the case of refugees pushes us to consider. When Kant speaks of a “cosmopolitan right,” we can understand this notion of “cosmopolitan” in two facets. One facet is that a right extends beyond the realm of the citizens, that its scope is ultimately the world. A second facet is that on that global level, we encounter each other as political beings. The claim of the stranger at the border is in that sense not just one of a human in need, but the claim of a citizen of the world. What does this description add? Certainly, world citizenship does not make up for the membership in a specific political community. What the description illuminates is the fact that questions of mobility and of access to territory are indeed transnational political questions. Refugee law is a site where those transnational questions are negotiated, as questions of justice and as questions of politics. The book has hopefully succeeded to show why conditions of refugees’ political voice and participation are not negligible in contrast to other questions of rights, but conversely at the center. We might acknowledge that questions of mobility and of access to territory are political questions: what does this mean in practice? Politics proceed from concrete instances and often from immediate encounters yet borders precisely hinder physical co-­presence and encounters. The main struggles for equality in the past have been struggles of people against structures and persons that oppressed them. These included struggles against oppression because of gender, because of race or religion, because of sexual orientation. In all these cases, people fought for their recognition as equals among those surrounding them. In some ways, the struggles around migration parallel those prior

3 Achille Mbembe, The Idea of a Borderless World, Africa Is a Country, November 11, 2018.

Outlook   169 s­ truggles. Yet in an important way they differ, as they regard questions of equality among persons who are not co-­present. In the years that I have been working on this book, the conditions of refugee law continuously deteriorated. Indeed, the necessary critique of law can sometimes gradually disappear in the face of a lack of respect even for the basic demands of the law. As I am completing this book in March 2020, refugees are being rejected at the Greek border in violation of international and European law. Statements from the European Commission stress the support for Greece in hindering illegal immigration. These are dark times for refugee law. What the past two years have also shown is how relatively little political protest in solidarity with migrants has been able to achieve. In many cities throughout Europe, tens of thousands took to the streets protesting for more solid rescue operations in the Mediterranean, against the criminalization of civil society rescue organizations and for more generous policies in refugee reception.4 These protests have remains relatively low in influence. Not only are those directly affected by migration policies at distance from the deciding institutions, also in protests of solidarity this absence seems to matter. These are but snapshots and examples, but they leave us with two crucial questions at the end of this book. What is the future of refugee law? And what could democracy beyond co-­presence look like? In the outlook on how refugee law might develop in the next decades, there appear two opposite possibilities. There is a dystopic view, in which states turn away from the even most basic commitment to universalist values. This is a view of ever more border walls, of politics of looking away and, ultimately, of a rejection of the idea that shared humanity has any normative significance. The opposite view is one of an unsteady and difficult progress towards a more equal world. Refugee law in that picture is contested in its scope and meaning but continues to provide gateways for migration – and as such forms a site of negotiating cosmopolitan rights and obligations. In which direction the development turns, is not for an oracle to answer but on us to determine. The us, as should have become clear, is potentially global. What democracy beyond co-­presence might look like, in turn, is an open question, yet profoundly connected to the conditions of refugees’ political rights. The concrete universalism at the basis of the refugee concept in that sense offers a lens for assessing and shaping democracy in a globally interdependent world.

4 See especially the organization Seebrücke https://seebruecke.org, which was founded in summer 2018.

170   Outlook

Bibliography Kant, I., Perpetual Peace: A Philosophical Essay (1795; English edition translated by Mary Campbell Smith 1903, Whitefish: Kessinger Publishing). Mbembe, A., The Idea of a Borderless World, Africa Is a Country, November 11, 2018, https://africasacountry.com/2018/11/the-­idea-of-­a-borderless-­world.

Index

advocacy 9, 23, 158, 161–163 affectedness 67, 70–71 Agamben, Giorgio 131 Agier, Michel 129, 131, 139 Aleinikoff, T. Alexander 128, 164 American Revolution 61, 162 Arendt, Hannah 7, 51–53, 55–57, 72–75, 79, 137, 162–163 associative rights 106–109, 111–116, 118 asylum: church 20; diplomatic 20; notion of 20

customary international law 155

Balibar, Étienne 49, 57, 82 Benhabib, Seyla 37, 53, 55, 69, 82 borders 1–2, 4, 7, 21, 23, 43, 52, 60, 76, 142, 167–168; sea 54 boundary problem 7, 67–69

elections 62–63, 66, 79, 95, 97–101, 103, 123 emergency, paradigm of 130, 132, 134 equality, political 1, 9–10, 38, 43–44, 46, 49, 52, 56, 61, 108, 130, 142, 168 European Convention on Human Rights (ECHR) 54, 109–111, 113, 118 European Court of Human Rights (ECtHR) 51, 70, 115 Executive Committee (UNHCR ExCom) 123, 134, 156–157, 164

Cartagena Declaration 5, 34, 36 citizenship: status 45–50, 91–92, 107, 112, 134, 138; diverse 45 civil society 37, 50, 158; organizations/ groups 116, 157–162; see also nongovernmental organizations (NGOs) community-based approach 134, 138 compassion 137 concrete universalism 168 Convention against Torture (CAT) 35, 155 Convention for the Protection of Human Rights and Fundamental Freedoms see European Convention on Human Rights (ECHR) Convention Relating to the Status of Refugees see Geneva Refugee Convention (GRC) cosmopolitanism 8, 81–82, 142; critical 8, 82 cosmopolitics 82

democracy: cosmopolitan 7, 79, 81 (see also cosmopolitanism); deliberative 80; radical 64, 73–74; representative 45, 62, 65, 71, 79 democratic iterations 37–38 denationalization 98 detention 9, 38, 115–116, 140 displacement 15, 28, 32–33, 36, 131, 141

Foucault, Michel 131n64 freedom of assembly 110–111, 113–114, 116; see also right to assembly freedom of association 101, 109–110, 118; see also right to association freedom of movement 18, 108, 115, 117 French Revolution 19, 81, 137, 162 Geneva Refugee Convention (GRC) 2, 15, 30, 32, 114–115, 126–127, 156, 159 Global Compact on Refugees 9, 145, 151–155, 158, 164 globalization 49, 60, 76, 78–79, 81–82, 86, 167 Global Refugee Forum 151, 153–154

172   Index Grotius, Hugo 21–22 Gündoğdu, Ayten 51, 56, 137 Habermas, Jürgen 63–64, 67, 74–75 Hegel, Georg Wilhelm Friedrich 24 Hobbes, Thomas 19 host state 94–95, 98–99, 101, 115, 121, 125, 127–129, 131–133, 138, 142–143, 153 human rights 10, 34, 52–57, 82, 95–96, 109–111, 114, 133 humanitarian government 9, 121, 123, 125–126, 129, 131, 133–134, 136–143, 145–146, 133 humanitarianism 121, 123, 125, 134 immanent critique 11 inclusion, democratic 47, 66, 71 Ingram, James 82 interconnectedness 50, 167 interdependencies 167 internal critique 4, 10; see also immanent critique International Covenant on Civil and Political Rights (ICCPR) 54, 92–93, 95–96, 109–110, 115 International Covenant on Economic, Social and Cultural Rights (ICESCR) 54, 109–110 International Refugee Organization (IRO) 29 ius sanguinis 48, 93 ius soli 48, 93 jurisdiction 49, 54, 113, 133, 138 Kant, Immanuel 22, 24, 32, 81, 167–168 Kelsen, Hans 62 legitimacy, democratic 7, 67, 77, 160 legitimation, democratic 68, 76–78 Locke, John 19 march of hope 107 mobility 5, 9, 18, 27, 38, 76, 94, 108, 142, 146, 161, 164, 167–168 nationalism 27, 65 nationality 1, 8, 47–49, 53, 55, 91–98, 100, 113 naturalization 1, 9, 47–48, 94–95, 128 non-governmental organizations (NGOs) 80–81, 126, 136, 138–140, 157–161 non-entrée regime 127, 144

non-extradition 27–28 non-refoulement, principle of 2, 125–127, 143, 155 normative reconstruction 11 OAU-Convention (Refugee Convention of the Organization of African Unity) 5, 33–34, 36 oppression 61, 168 persecution 5, 16–17, 19, 23, 28–30, 94, 99, 155–156 politics, possibility of 72–73, 82 postcolonial: critiques 45; perspectives on international law 82 protest 3, 106–108, 110, 114, 116–118, 139–140, 169 pushbacks 10 Rancière, Jacques 56, 74, 139 refugee camps 9, 121, 124–126, 129–133, 136, 138–142 refugee definition 5, 16–17, 31, 33–36, 95, 156 refugee parliament 101 refugee status 6, 9, 16, 29–30, 91–92, 94–95, 97, 108, 115, 143; determination 124, 132, 140, 155 representation, concept of 161 Residenzpflicht 116 responsibility-sharing 9, 126–130, 142–146, 164 right to assembly 107, 109, 111–113, 117; see also freedom of assembly right to association 107, 109–111, 113, 117; see also freedom of association right to have rights 7, 10, 50–51, 53, 55–57 rightlessness 51–52, 55 Rousseau, Jean-Jacques 61–62 self-reliance 9, 140–141 social contract 19, 21, 24, 52, 65, 67 sovereignty 20, 22, 65, 125, 138, 140, 142 stability 67, 73, 100, 113, 162 state of origin 4, 7–9, 46, 91, 94, 99–101, 124 statelessness 92–94 subjectedness 67, 70 surrogate state 133 survival 9–10, 129–132, 142 Territorial Asylum, Declaration on 127

Index   173 territory: access to 10, 44, 126–128, 168; as the reference point 1, 49 United Nations 79, 109, 159 United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) 16 universal rights 52–55; see also human rights universalism 2, 4, 7, 10–11, 24, 38, 52, 56, 82, 121, 168–169; uncritical 81–82; see also cosmopolitanism

victimization 24, 137, 139 violence 31, 34, 65, 73, 106 visibility, political 45, 57, 108 Volk, Christian 72–73 voting rights 6, 95–99, 102, 107, 112; alien 91, 96; resident 47, 96–97 vulnerability 24, 114 Westphalian Peace Treaties 19–20