By Seyla Benhabib*

I.

If the COVID-19 pandemic has made anything clear it is the absurdity of our faith in closing borders which many citizens and residents all over the world clamored for as a measure against an invisible virus, while at the same time accepting shipments of masks and materials from all over the world without asking whether they may also be invisible carriers. The use of territorial exclusion to deny rights is one of the reflex mechanisms of the modern statal imaginary (Scott 1988).  The deep-seated fear of the outsider and the stranger as an invisible threat, as a potential carrier of disease and danger is so embedded in the imaginary of the modern state that even without any proof that asylum seekers and non-citizen foreigners were potential carriers of the Corona virus or were infected by it, in the Spring of 2020 one state after another closed its borders to them.  Not only was travel between US and Europe suspended for all non-citizens, but the European Union followed suit by shutting its outside borders to all non-EU citizens, while leaving movement across the Schengen borders to the discretion of individual states.

The tightening of the distinction between the citizen and the non-citizen  has implications for  the lives of those already inside a country and not simply for those on the other side of the border. The United States, long considered a country of immigrants and proud of offering refuge to “huddled masses” coming to its shores, in recent years has intensified the othering and criminalization of migrants as well as refugees.  There is firm evidence that recent US actions and policies along the US-Mexico border violate the principle of “non-refoulement” of the 1951 Geneva Convention incorporated into US law through the Immigration and Nationality Act. [1]

In “The End of Asylum. A Pillar of the Liberal Order is Collapsing – but Does Anyone Care?”, Nanjala Nyabola has observed that there is enough blame to go around. “The United States is far from the only country to slam its gates on those fleeing crumbling social, political, and economic systems. Around the world, rich and poor countries alike are pulling up their drawbridges, slashing the number of refugees they are willing to accept and denying asylum to those who might have been admitted in the past. …  In Africa, Asia and South America, the mood is much the same.” (Nyabola 2019)

This is happening at a time when the number of forcibly displaced persons worldwide stands at an all-time high with 70.8 million people at the end of 2019. Among displaced persons, only those who cross internationally recognized borders are called “refugees.” The UNHCR classifies 41.3 million as internally displaced persons; 25.9 million are refugees, among whom 5.5 million stand under UNRWA’s (United Nations Relief and Works Agency for Palestine Refugees in the Near East) mandate; and 3.5 million are asylum seekers.

Refugees, asylees, I.D.P’s (internally displaced persons),  P.R.S.’s (those in protracted refugee situations who are long-term residents of refugee camps), and stateless persons are categories of human beings created by an international state-system in turmoil and are subject to a special kind of precarious existence; they have become metaphors as well as symptoms of a deeper malaise in the politics of late modernity. In my article on “The End of the 1951 Refugee Convention?”, I have  characterized this malaise as originating with the dual commitments of the post-WW II state system to respect the territorially circumscribed sovereign jurisdiction of equal and independent political units, on the one hand, and the internationalization of human rights, on the other.  My claim is that while socio-economic developments and the rise of the world-wide web have  led to deterritorialization of vast domains of the economy and the media which enable them to escape from state control, territorial presence, whether on terra firma or on vessels at sea which are functional surrogates for territorial sovereignty, continues to  be the basis for the entitlement to human and citizens’ rights. We are facing a dual movement of deterritorialization and territorialization at once.

Borders and border regimes have significant implications for a seminal question in democratic theory, namely, how to define and justify the boundaries of the demos. Much recent discussion of the boundaries of the demos takes place via an ideal theory of normative reconstruction with scant attention to legal doctrine and institutions that govern these boundaries.  Migration and refugee law, and more generally, laws governing transnational movement across borders, are the site at which today’s demoi are defining and negotiating their identities as demoi. If the demos refers to the constitutional subject of a self-determining entity in whose name sovereignty is exercised, regimes of sovereignty, including those which govern the movement of peoples across borders, define the prerogatives as well as obligations of such sovereign entities under international law.  An analysis of these international law obligations – be they grounded in treaties, in the common law of nations, through jus cogens norms or via multilateral human rights covenants – can shed light on the legal limits of sovereign self-determination and thus the reconstitution of the demoi.  Reconceptualizing sovereignty as a regime of global interdependence is the first step in this process.

In recent years we have witnessed the resurgence of what Ran Hirschl and Ayelet Shachar have called “spatial statism,”[2] and the development of state strategies to avoid obligations under domestic and international law.

Let me be very clear that I do not see the 1951 Convention on the Status of Refugees and its 1967 Protocol either as an answer or as a panacea to the mobility of people in our times—be it for seeking refuge or for multiple migratory purposes induced by poverty, civil war, climate crisis and the like. If we are to understand what is happening all around us, however—why Libyan patrol boats are permitted to capture refugee dinghy’s sailing from Africa and forcibly return them to camps in Libya, or why the Biden Administration is pressuring asylum seekers to first apply for refuge in Mexico before proceeding to the US (so-called “safe third country” agreements)—we have to take existing domestic and international legal regimes seriously and perform an immanent critique of their internal logic. I don’t think we will be able to change border regimes of our times through normative declarations alone—we have to deconstruct and reconstruct the edifice of institutional practices from within in order to open up space for responsible reform. I am not sure where these claims locate me in the broader spectrum of the politics of abolition discussed in these seminars, but these nuances may emerge in the course of the discussion this evening.

The immigration scholar Matthew Gibney has introduced the phrase a “thousand little Guantánamos” to describe state behavior vis à vis refugees and migrants. (Gibney2006)  By this he means that in the last two decades, “centres of power” have been created, “where states (and their formal and informal agents) act free from the constraints imposed on their activities by courts, international and domestic law, human rights groups, and the public at large.” (Gibney, 2006,152)  Such centers emerge through the use of exclusionary visa measures; imposition of carrier sanctions on airlines and shipping companies through the employment of immigration staff at these sites; through the declaration of airports as international zones so that states would not be obliged to offer those in such places the  protections available on state territory. In one of the most radical measures of this kind, Australia, with “a 2001 law, ‘excised’ Christmas Islands, Ashmore Reef, the Cocos Island, and other territories from its migration zone, so that the landing of asylum-seekers on these territories did not engage most of the country’s protection obligations.” (Gibney, 2006, 150)

A consequence of these deterritorialization strategies is the delinking of the bond between territory, jurisdiction and the public in whose name and with whose authorization law and coercion are presumably exercised. Through “border-induced displacements” an ethical and political distance is created between migrants and refugees upon whose body the law is exercised and the national public who presumably authorizes it.  Distance-creating strategies undermine processes of democratic accountability and legitimacy by removing, literally and metaphorically, from the public’s eye the measures exercised in their name.

II.

The United States has amply availed itself of the repertoire of such “deterritorialization” measures. As has often been noted by scholars of international law, although the United States has been at the forefront of many human rights treaties and conventions in the post-WW II period, its own compliance with these and accession to them can only be characterized as “exceptionalism” morphing into “exemptionalism.”  (Ignatieff, 2005, 23) Thus, although the United States was a high contracting party to the 1951 Geneva Convention, it only acceded to the 1967 Protocol in 1968 but did not pass legislation implementing the Convention until 1980.  After the Vietnam debacle, Congress passed the Refugee Act of 1980, (Refugee Act, Pub. L. No. 96-212. 94 Stat. 102 (1980)  which established procedures for admitting refugees and handling asylum applications.

Nonetheless, one of the first examples of a bi-lateral agreement to displace “non-refoulement” obligations to refugees was President Reagan’s entering into an agreement with the Haitian government in 1981 to interdict vessels sailing for the United States, which were sent back home only after short refugee screening interviews conducted by coast guards conducted on the ships.

Nor is the practice of extra-territorial detention unfamiliar in the US. Under the Clinton Administration, Haitian refugees who had tested positive for HIV were detained at Guantanámo Bay, because the statute in force at the time made persons with a “communicable disease of public health significance” excludable. The law was amended in 1993, but through mass prejudgment of refugees without proper interviews and the routine detention of asylum seekers, the United States contravened the spirit, if not the letter, of the Convention.  (In view of the COVID 19 pandemic, President Biden likewise has evoked Title 42 of the United States Code on public welfare to justify the returning of some asylum applicants back to Mexico.)

There has been a radical transformation of American immigration and refugee law in the wake of the attacks of September 11, 2001. Judith Resnik notes that, “in the years between 2008 and 2015, immigration prosecutions have represented more than half of the annual federal caseload”[3] (Resnik 2016, 128) and between 2005 and 2013 the total number detained reached from under 250,000 to 450,000. Detaining Migrants (even those not charged with crimes; but guilt of parking violations; jumping over a turnstile) constructs the “alien as criminal.” In addition to criminal prosecutions, incarceration and deportation have become the preferred punishment for dealing with migration felonies, leading to the emergence of a system known as  “Crim-Imm,” or “crimmigration.” (Wadhia 2017, 672)

As early as the Fall of 2014, the Obama Administration had begun detaining mothers and children from the Northern Triangle countries, namely, El Salvador, Honduras and Guatemala, and eventually, 450,000 people were deported, earning Obama and his Attorney General, Eric Holder, the title of “Deporter- in-Chief”.

Since September 11, 2001 a three-pronged process of criminalization, securitization and privatization of immigration detention centers has been afoot. After September 11, the Department of Homeland Security created an umbrella under which 22 executive agencies were brought into partnership.  Immigration and Naturalization Services became a sub-office divided into 3 parts: US Citizenship and Immigration Service: Customs and Border Protection (CBP) and Immigration and Customs Enforcement.(ICE) The DHS interprets the enforcement of immigration law through the lens of national security and “Immigration policy has become weaponized.” (Aseem Mehta) The combined budgets of CBP and ICE have increased from 3.3 billions to 8.4 between 2003 and 2020. (U.S. Department of Homeland Security, Budget-in-Brief, FY 2005-FY 2021)

As I explain in the discussion of the Al Otro-Lado case, (Benhabib, 2000, section 5) through a combination of tactics involving misrepresentation of refugee rights under US law, through outright lies, coercion, deceit, and the creation of “waiting lists” enjoining asylum seekers to return to Mexico and get a number there for their interview before they cross over into the US, the Customs Border Patrol officials and the Department of Homeland Security have violated US and international law and have created an emergency at the US-Mexico border.

The third pillar of criminalization and securitization is privatization. As Aseem Mehta explains,[4] the growth of private prison corporations in immigration enforcement has been exponential. The majority of these detentions, incarcerating more than 500,000 individuals each year, takes place in facilities owned, operated and turned into profit by private prison corporations (in particular, CoreCivic and GEO Group); relatedly, a 2015 investigation found that a “shadow prison” system exists to hold the 23,000 individuals serving federal sentences for immigration convictions each night in 13 private prisons operated to CCA and GEO. The number of beds  were increased to 42, 000 under the Obama Administration and Trump envisaged 60, 000 beds a night which would be paid for by US citizens to these private companies. Conditions of confinement in private facilities are notoriously bad (known for overuse of solitary confinement, higher rate of suicide, and sexual assaults by staff against detainees).  For immigrants that are not detained, ICE operates a system of “alternatives to detention” that include the use of GPS ankle monitors – the larger provider of which is a subsidiary of GEO group and owns all surveillance data – as well as, “community supervision programs.”  And here we see how the carceral state spreads its institutions and tentacles into the domain of “alien” detention. The alien without becomes also the enemy within.

III.

What is to be done?  As a critical intellectual, I see my first task as ensuring that “holes of oblivion,” in Hannah Arendt’s words, are not created into which the most vulnerable and defenseless in our world disappear—underage children; pregnant migrant women; victims of gang violence and rape; trafficking by smugglers and many, many others. We need to shine light on those who can all too easily be forgotten and condemned to the refuse heap of humanity in migration detention camps and prisons.

We need to acknowledge that cross-border movements, be it for seeking refuge, escaping poverty, gang violence, civil war and climate change are the profound dysfunctionalities of a state order designed after WWII and which is now threatening to come apart at the seams. The feeble efforts by the UN to design “The Global Compact for Safe, Orderly and Regular Migration” (19 September 2016) resulted in a non-binding document “that respects states’ rights to determine who enters and who stays in their territory,” (https://www.iom.int/global-compact-migration) even when states are themselves the chief, if not the only, culprits of this system.

The current refugee and migration regime is not only inadequate to the life and well-being of the nearly 70 million displaced peoples in our times, but it also undermines democracy at home, encouraging the rise of autocratic regimes.  The question of migration has become a focal point for all right-wing populist movements (and of some left-wing ones too), from Hungary to Italy to Greece and is jeopardizing the fate of social-democracies in France as well as Germany. In the United States, anti-immigrant, xenophobic and anti-racist sentiment has become part of the toxic neo-fascist brew still supported by nearly 70 million people.

We need to counter these beliefs with sober analysis and facts:  the migrant has become the symbol of vulnerability for citizens themselves who are threatened by the “race to the bottom” unleashed by globalization. The anger that those abandoned by their own government and the shrinking public services of the neo-liberal state direct towards the “others” and supposedly, “the undeserving newcomer” is cruel but it is not that difficult to understand. We need cross-cleavage coalitions between labor groups, migrants’ representatives, women’s groups, undocumented domestic workers, anti-racist movements and migrants’ rights movements to combat these trends.

We are living through a period of the “disarticulation” of the political and may be the “undoing of the demos,” in Wendy Brown’s words.  We emphatically need a cosmopolitan ethic of radical interdependence and a multi-layered cosmopolitics to articulate a new vision of planetary interdependence—a vision that does not pit the laid off workers of First World deindustrializing countries against the young seamstresses of Bangladesh or the electronic workers in China. If this pandemic has taught us anything it is that we are all equally vulnerable as humans, but also that we may have upset a subtle “zoonoetic” balance between ourselves and the world of other living animals which it will be very difficult to redress in the future. Another border, between the human and the non-human world of living microbes and viruses, has also been crossed.[5]

Notes

* Eugene Meyer Professor of Political Science and Philosophy, Emerita, Yale University; Senior Research Fellow and Professor Adjunct of Law, Columbia University. This text is an abridged and revised version of my article submitted for this session, “The End of the 1951 Refugee Convention: Dilemmas of Sovereignty, Territoriality, and Human Rights,” Jus Cogens (summer 2020); https://doi.org.10.1007/s42439-020-00022-1. Full references may be found there.

[1] “Non-refoulement” is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on “race, religion, nationality, membership of a particular social group or political opinion”.  Cf. Article 1.A. (2) of the The 1951 Convention Relating to the Status of Refugees. https://www.unhcr.org/en-us/3b66c2aa10.

[2] Ran Hirschl and Ayelet Shachar, “Spatial Statism,” I.CON (2019), 1. Pp. 387-438.

[3] See Judith Resnik, “Within its Jurisdiction:” Moving Boundaries, People, and the Law of Migration,” (June 2016), 117-159; and M. Mittelstadt, Doris Meissner, and Muzaffar Chishti, “Through the Prism of National Security: Major Immigration Policy and Program Changes in the Decade Since 9/11.” https://www.migrationpolicy.org/research/post-9-11-immigration-policy-program-changes.

[4] Lecture on December 4, 2020 to Professor Benhabib’s class at Columbia Law School, “Citizenship, Refugee and Migration Law in Comparative Perspective.”

[5] See the remarkable collection of essays, and in particular Venkatesh Rao’s “Pandemic Time: A Distributed Doomsday Clock,” in: Noēma, The Great Acceleration. A Publication of the Berggruen Institute, issue No 1 (Spring 2020), pp. 13-23.