“A lot of migrants today are migrants because their countries are impossible to live in. They are not opportunistically seeking an easier life in someone else’s state. They can’t live in theirs for fear of death.”
It wasn’t simply that they wanted to get to Germany for a better life. It was that if they got to Germany, a whole set of rights triggered. If they don’t, they are homeless, stateless, and in a situation that Shakespeare described in King Lear as being on ‘the heath’ — beyond the borders of law, beyond the border in the no man’s land, where your life is in peril, where your life, juridically speaking, is worth nothing
Michael Ignatieff, the Edward R. Murrow Professor of the Practice of Politics and the Press at Harvard University’s Kennedy School of Government, delivered a lecture at Central European University in Budapest this week titled “The Right to Have Rights: Migrants, Refugees and the Duties of States.”
“You are at the very center of a world historical event,” Ignatieff opened. “This is an unprecedented crisis.”
According to Ignatieff, forced migration should be viewed from a historical perspective. Europe has been hit with successive waves of forced migration throughout the twentieth century. All of them were driven by political trauma and change. What sets the current situation apart are the numbers.
Responding to crisis
“Refugee policy is always forged in crisis,” he said. Previous crises were the reason why there were international regimes and protections for refugees and asylum seekers today.
According to Ignatieff, a sense of being overwhelmed, overburdened, and unable to cope is characteristic of the 20th-century European experience with forced migration, one which resulted in “enormously decisive and important policy and innovation”.
Among the first such innovations was the creation of the Nansen Passport issued to stateless persons by the League of Nations in the two decades following the First World War. Its namesake, Fridtjof Nansen, served as the first League of Nations commissioner for refugees. The passport was his response to a problem similar to the one Europe faces today, that is, how to document refugees.
Ignatieff told the standing room only audience that it was thanks to the work of Fridtjof Nansen that his father, grandfather and grandmother were able to leave Russia and travel across Europe.
“[The Nansen Passport] is a concrete example of one of the ways in which a crisis produces an innovative response,” he said.
In addition to helping European authorities properly identify truly stateless people, the Nansen Passport was “designed to remove the shame from the status of being stateless,” according to Ignatieff, who points out that a similar innovation is needed today, an identification card with biometric identifiers that would allow for every bona fide refugee to move across political frontiers without being stopped, humiliated and shamed.
The Nansen Passport paved the way for a number of international regimens, including the Universal Declaration of Human Rights and the Refugee Convention of 1951.
“These [regimens] are responses to the unprecedented population movements of stateless and desperate people across European borders which forced European policymakers to come up with new international legal instruments which incarnated the principle of universal human rights, universal human values, and universal obligations to refugees,” said Ignatieff.
“The crisis of universalism”
“The achievements of 1948 are now under attack and in danger as never before. But just as we have gone through the challenge of unprecedented refugee inflows throughout the 20th century, now is the moment in which we have to respond to this crisis with the same kind of imagination that someone like Fridtjof Nansen displayed,” he said, calling the current crisis “a crisis of universalism”.
Ignatieff then changed gear and introduced someone he called “probably the most famous and productive refugee in the twentieth century” — philosopher Hanna Arendt.
Born into an assimilated Jewish-German family, Arendt was a brilliant student of Heidegger at the University of Marburg. Forced to leave Germany when the Nazis came to power, Arendt became a stateless person, the Nuremberg Laws having stripped her of her German citizenship in 1937. She lived in Paris until the city fell. Under the Vichy collaborationist government, Arendt was interned as an “enemy alien”.
“So this woman knows what it is like to be homeless, stateless, in fear of your life, and without any documents or state to protect you,” Ignatieff said.
Arendt reached the United States in 1941 and became a US citizen by 1950.
In 1948, she authored The Origins of Totalianism, an attempt to define where Soviet Communism and Nazi Totalitarianism came from.
Ignatieff cited the following quote from The Origins of Totalianism:
“If a human being loses his political status, he should, according to the implications of the inborn and inalienable rights of man, come under exactly the situation for which the declaration of such general rights are provided. Actually, the opposite is the case. It seems that a man who is nothing but a man has lost the very qualities which it is possible for other people to treat him as a fellow human being.”
Ignatieff said the declarations Arendt refers to are the Universal Declaration of Human Rights and the Refugee Convention.
According to Arendt, the most important right that anyone has is the “right to have rights”.
She says there are two reasons why human beings have rights. As members of a political community, whether they are citizens, permanent residents, people holding visas or visitors, according to law they have rights as defined by the political community. The second reason is that they are a human being, and as such possess certain inherent and inalienable rights.
“If someone was to lose their membership in a political community, if someone was to become stateless, stripped of their nationality, or thrown out of their country”, as Arendt was, “then you ought to have the rights you have as a human being”.
Arendt’s point was that stateless people were effectively stripped of their rights as human beings, and that universal human rights were not being acknowledged in the case of stateless individuals.
Ignatieff believes the current refugee crisis presents the same challenge today as hundreds of thousands of stateless people posed seventy years ago, and that what Europe is experiencing is, in fact, a philosophical debate.
“Is it a case that a stateless Syrian refugee who has lost the protection of being a member of that savage political community known as Assad’s Syria, if they lose that set of rights that go with that citizenship, do they still have rights as human beings when they come to our borders?” he asked.
Refugees versus migrants
Ignatieff then provided his own non-legal definition of what it means to be a refugee and migrant.
“A refugee, in my definition, is someone who has lost citizenship but becomes stateless and claims refuge in a safe country ‘by virtue of a well-founded fear of persecution’ — that’s the language in the 1951 Convention,” he said. “A migrant is not stateless in the same sense because he or she can, in theory, return to a home country, but instead seeks refuge in a safe country for the sake of a better life.”
According to Ignatieff, one of the immediate challenges faced currently with the refugee crisis is that “the very distinction which is clear in law, is in trouble because of the facts.”
“The facts in this situation are that a lot of migrants today are migrants because their countries are impossible to live in. They are not opportunistically seeking an easier life in someone else’s state. They can’t live in theirs for fear of death.”
The Refugee Convention defines a refugee as someone who is fleeing a well-founded fear of persecution, he said. The problem with this definition is that some of the people fleeing Congo, Sudan, Libya and Afghanistan are not fleeing because of a well-founded fear of persecution. Rather, they are fleeing in fear of their lives.
Ignatieff thinks the language of the international conventions created between 1948 and 1951 fails to capture the nature of the current refugee crisis.
“And so we are facing . . . the crisis of universalism, with universal instruments that do not describe the case we are dealing with, which is state collapse, state failure and state violence. The great thing about universal human rights is that they are retail, not wholesale.” Pointing at members of the audience, he said “they’re your right, and your right, and your right!”
When do the rights of refugees and migrants become recognized?
Referring to the many thousands of migrants who perished in the Mediterranean in 2015, Ignatieff said that these individuals, in theory, have the right to life, “but if there are no boats there to pick them up, they drown.”
More than 3,000 people drowned in the Mediterranean in the summer of 2015. Ignatieff believes one of the causes was juridical.
“As soon as they are picked up, all of the rights I just mentioned are triggered,” he said, adding that states putting boats out to sea are aware of this.
However, according to the wording of these international agreements, many of the rights of these people in transit do not trigger until they actually reach shore.
“If they don’t reach shore, they don’t have rights. It’s as bad as that,” said the human rights expert, who praised Italian marine vessels and volunteer organizations for courageously fishing people out of the sea.
Ignatieff says refugees can claim rights in refugee camps only when the UNHCR determines they are refugees but that they cannot claim rights under the 1951 Convention unless they gain entry to a state.
“Great Britain, for example, will not accept a refugee at Calais or at the border. They will only take refugee claims from refugee camps. And they do this to deter people from arriving and making asylum claims at the border.
“So we have a universal regime of human rights and refugee rights that can only be claimed when one arrives at the state in question. Then they trigger. Short of that, if you can keep them out, you’re not, as a state, bound by the universals I’m talking about.”
Controlling the right to have rights
Ignatieff acknowledges that international regimes on universal rights and refugee rights confer rights to individuals irrespective of their citizenship. He said “the problem is that states continue to control the conditions under which these rights are granted.”
“So the drownings, the rolling out of razor wire, detentions, and reductions in admissions have a clear logic, that is, to sustain control over the right to have rights and to simply reduce the number of foreigners toward whom the state has duties,” Ignatieff said, pointing out that the stateless, homeless and desperate can’t access these rights unless they get across the border.
“States and the stateless are in a desperate battle to control that line, and that is what we saw this summer. It wasn’t simply that they wanted to get to Germany for a better life. It was that if they got to Germany, a whole set of rights triggered. If they don’t, they are homeless, stateless, and in a situation that Shakespeare described in King Lear as being on ‘the heath’ — beyond the borders of law, beyond the border in the no man’s land, where your life is in peril, where your life, juridically speaking, is worth nothing.”
In addition to depriving the stateless of their rights as set forth by the regimens in 1948 and 1951, states are creating statelessness, according to Ignatieff. France stripping suspected terrorists of citizenship and the US blocking the ability of 15 million immigrants to become naturalized citizens created a category of persons who were essentially in a juridical no man’s land.
Ignatieff said that rights are proclaimed all the time but are only effective when states accept to be bound by them. But in order to be rights, they must be universal.
“And if they are universal, they do pose a challenge to states, which is that they deny the right of states to engage in triage,” — that is, being selective in who to accept into the country.
“A universal right that a refugee has has no cap. This is a deeply relevant public policy question which is being debated urgently in Germany right now,” Ignatieff said.
On one hand, Chancellor Angela Merkel is saying that Germany accepts its obligations under the 1951 Convention. But assuming the 5 million refugees submit bona fide claims, Germany has to take them all. According to Ignatieff, this is where the conflict between universal rights and state sovereignty comes into play, adding that “this is a hugely difficult public policy question to grapple with”.
While bound by universal commitments without limits, Merkel, as a responsible leader, continues to admit people without a ceiling. She has a democratic responsibility to her electorate who cannot understand that this universal obligation is infinite.
“We have not been here before. This is a new problem,” Ignatieff said, observing that states have been trying to deal with the problem of the universals by limiting jurisdiction, by making sure that people do not make it ashore, by making sure that razor wire goes up before they can make their claim, and by letting them drown in the Mediterranean.
“Faced with a universal claim, [states] are asserting jurisdiction in such a way as to allow them to engage in triage,” he said.
The real question here was that, by refusing to acknowledge the universals to refugees, we lost our claim to these universals as well. Ignatieff said this is a question that needs to be thought about.
“One of the ways to see the crisis of the universals is as part of the return of the sovereign. 1945 to 1951 is an attempt to put in place universals to constrain the power of Leviathan — for excellent reasons. You do not want a state that can remove citizenship from their own citizens. You do not want a state that does not admit any controls on executive authority. We created universals after 1945 not simply to deal with the tide of forced migration, but also to put limits on the state and on sovereign power that were long overdue.”
Post-1989 developments in Europe were all a move in the direction of a vision that Europeans held so dear, the breaking down of borders. This changed after 9/11, when people turned to the sovereign, as they always do when under attack, to protect them.
Ignatieff said that powers of the sovereign have greatly increased in the United States and Canada as a result of the war on terror, and that as a result of this the values liberal democracies hold dear have come under pressure.
“It seems to me we have seen the return of the sovereign (in 2015) because the core of sovereign power is the control of your frontier. And so we see razor wire, the breakdown of Schengen, and above all, the capping out of rights to asylum everywhere across Europe, which means a retreat from the universal.”
To give a sense of just how important and dramatic the moment is, Ignatieff said that just how we move forward will determine whether states will be bound to abide by their international obligations and provide asylum, or whether we are witnessing a “new turn”, the collapse of open borders, the collapse of the refugee convention, and the collapse of the right to have rights to which all human beings are entitled.