Decriminalizing Migration: Moral Resources, Juridical Ideas
Seyla Benhabib 27 February 2020

Countries of the European Union have been struggling with the refugee crisis intensely for the last ten years, and even longer, depending on whether one dates the crisis from the break-up of Yugoslavia in the late 1990’s or focuses on the refugee flows generated by civil  wars in Syria, Afghanistan and Iraq.

The United States, long considered a country of immigrants (there are 50 million immigrants in the US, that is 12% of the population) and proud of offering refuge to “huddled masses” coming to its shores, in recent years has joined in the othering and criminalization of 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.

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.” (Michael Ignatieff). The United States was a high contracting party to the 1951 Geneva Convention, but it only acceded to the 1967 Protocol in 1968 and did not pass legislation implementing the Convention until 1980. After the Vietnam debacle, Congress passed the Refugee Act of 1980, which established procedures for admitting refugees and handling asylum applications.

In order to circumvent their obligations under the 1951 Geneva Conventions, states resort to several “non-entrée” measures, that is, they try to prevent refugees from reaching their territories in the first place.  These can happen through the designation of certain countries as “safe third countries” or through the signing of bilateral agreements among countries such as the ones completed between Italy and Libya or Turkey and the EU.

The United States also avails itself of all the measures to dispense with its obligations under the Refugee Convention and has done so for quite some time. One of the first examples of a bi-lateral agreement such as to prevent refugees from reaching US territory was the case involving the interception of Haitians on high seas and their forcible return to Haiti.  In 1981, President Reagan entered into an agreement with the Haitian government to interdict vessels sailing for the United States, with only short refugee screening interviews by coast guards conducted on the ships. Although President Clinton had denounced these policies during the presidential campaign, the Clinton Administration continued to forcibly interdict all Haitian boats headed toward the United States. Nor is the practice of extra-territorial detention unfamiliar in the US. 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.


State of exception

All this pales in comparison with the transformation of American immigration and refugee law in the wake of the attacks of September 11, 2001. The legal scholar Judith Resnik notes that “in the years between 2008 and 2015, immigration prosecutions have represented more than half of the annual federal caseload.” 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 of “Crim-Imm,” or “crimmigration.” The so-called current “emergency” at the border has been long time brewing and is more continuous with Democratic administrations’ policies than has been acknowledged.

The current emergency is caused not only by the increase in the number of refugees arriving in the last 3 years, although there are legitimate logistical and personnel deficiency issues that need to be handled. The real emergency is that this crisis has been manipulated to become a state of exception, in which the US constitution is suspended and the most intense and extreme antagonism between “friend and enemy” unfolds – the essence of the political according to Carl Schmitt. This abuse of the US Constitution and of US’s obligations under the Geneva Conventions have assumed unprecedented dimension under the administration of President Trump.

Through a combination of tactics involving misrepresentation of refugee rights and US law, such as outright lies, coercion, deceit, and the creation of ad hoc procedures like waiting lists, enjoining asylum seekers to return to Mexico and get a number there for their interviews inside the US borders, the Customs Border Patrol officials and the Department of Homeland Security have violated US and international law and created an emergency at the US-Mexico border.


Fighting the politics of cruelty

Why did we get here? Why is it that most liberal democracies, such as the United States, Germany, Italy, the UK, France, Australia and the list can go on, are abdicating their commitments to defend human rights, violating international law and creating zones of lawlessness by building refugee detention centers; outsourcing the dirty work of preventing refugees from reaching their shores to lawless and failed states such as Libya or to authoritarian regimes such as Turkey; or even excising territories from their own jurisdiction, so as not to be responsible for arriving refugees, as Australia has done?

Do liberal democracies have the moral, political and intellectual resources to deal with these dynamics? Or, must they succumb to the politics of fear and ressentiment? The political philosopher, Judith Shklar, once noted that the principal task of liberal societies was not only to render justice but also to forbid cruelty. Cruelty inflicts not only physical harm and torture but subjects its victims to humiliation and indignity. Cruelty is spreading in liberal democracies at the cost of those who are most vulnerable, whether within or without our borders.  How can the politics of cruelty be avoided?

First, it is necessary to decriminalize transnational movement of peoples – including that of refugees and migrants.  To decriminalize does not mean open borders, but it does mean regulating porous borders under international law.  Today, the response of most states to the ongoing refugee crisis is to treat the refugee as a trespasser and as a law-breaker rather than as a human being endowed with certain rights.  States build walls, perfect border controls, create electronic surveillance fences, and spend millions on creating quasi-military forces of dubious political orientation and loyalty.

Second, decriminalization also involves a change in ontological perspective. The perspective of the state is an “ontology of containment” that denies the radical fluidity, historical variability and interdependence of peoples, histories, cultures, and territories on both sides of the border. Human mobility is an anthropologically deep-seated drive of the human species, and the regulation of human motility through national borders is quite recent in human history.

This is not a plea for a world without borders, because democracies require jurisdictional boundaries. We must know in whose name the law is being enacted and how we can request accountability from those who enact it. But these jurisdictional boundaries need not be co-terminous with militarily armed and violently guarded border regimes.  If we move our gaze below as well as above the level of the state, we see that municipalities, regions, borderlands, transnational alliances shape and define the interdependency of citizens and strangers.

We should adopt a broader perspective such as the one formulated by Michael Doyle of Columbia and his colleagues and called the “Model International Mobility Convention.”  This Convention seeks to elucidate the rights of all human beings crossing international borders in accordance with transnational human rights standards for all – economic migrants as well as refugees; foreign students as well as tourists.

The 1951 Convention is one of the most important international human rights documents of our world, ushering a new sense of obligation of states toward human beings and toward one another.  It is in peril today everywhere but the way forward is not to weaken it further but to embed it in a broader perspective of cosmopolitan justice that proceeds from the ubiquity of human movement throughout the centuries in search of freedom and opportunity and relief from persecution as well as the hope for a better future for one’s children. No liberal society can remain true to its values if it does not respect and uphold the rights and needs strangers who come to its borders.


Seyla Benhabib is Eugene Meyer Professor of Political Science and Philosophy at Yale University


Photo: Herika Martinez / AFP

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