Part II - Belonging across Borders

7 Imagining New Forms of Belonging The Futurity of the Stateless

Eleni Coundouriotis

What is the futurity of statelessness? The answer to such a broad question lies partly in the types of stories we tell about the refugee experience and in how we connect past and future. If we claim rights for the stateless, we imagine a future time of statelessness that is something other than the present. To posit new forms of belonging, moreover, presupposes that we have a grasp of the old forms of belonging that failed and caused statelessness. Yet, the process is not simply mechanistic, a toggle from past to future. We cannot settle the past and move on but neither can we imagine futurity without an understanding of the past.

The imagination (through the arts but also through humanistic critical inquiry) provokes us to expand our thinking beyond the familiar. Thus, it can take on the task of interpolating a future for statelessness, of thinking outside the box, to address the rapidly expanding crisis of our epoch. This is a different remit than expecting literature to foster empathic engagement, although the two may not be incompatible. Furthermore, this imaginative discourse contrasts with social scientific descriptive discourses that too frequently diagnose the problem by looking only at what is already in place, suggesting a stalled temporality that reveals a dystopic world of more of the worst aspects of the same. Such descriptive discourses frequently fail to grasp the dynamics of historical change, of relating the past to the future in becoming. The future envisioned here is instead one that finds in statelessness some creative energy for new forms of belonging, even as a resolution to legal statelessness seems elusive. These new forms of belonging will invariably be tested and reconfigured repeatedly, yet they have the potential to move forward the search for a positive path out of the crisis of unbelonging.

Testimony, a complex practice of relating the past to the present, is a privileged discourse in the history of refugees that plays a key role in understanding statelessness as a lived experience. A key contention of this chapter is that testimony, despite what’s understood as its retrospective structure, makes legible the futurity of statelessness. Broadly understood as a truthful, first-person account of what happened, testimony has a complex relationship with time. Moreover, it has unique narrative features: testimony is performative (a subject gives testimony), eruptive (its key episodes disrupt the exposition of events, coming to the surface of the narrative unexpectedly and with force), and repetitive (we require to hear it multiple times). The experience of statelessness holds on to what anthropologist Michel Agier calls the stages of “destruction” and “exodus.”¹ The dislocation of the stateless originated in acute danger, which engulfed the places they called home.² Thus, stuck in limbo in spaces of precarious refuge, they repeatedly give testimony that addresses their past: their history of war, persecution, and forced displacement.

Testimony of these experiences can be hugely consequential in determining the future trajectory and legal status of displaced persons. Furthermore, such occasions for testimony are varied and far from uniform, putting different types of pressure on the accounts we hear. This uneven terrain where particular stories of refugee experience come into focus has the potential to capture aspirations for future belonging born of past trauma. The literary and humanistic endeavor fosters the imagination of what these budding forms of belonging might be. Consequently, this chapter offers reflections on how to create a sense of belonging for the stateless that keeps them in our purview as historical agents who can determine their actions and meaning. Whereas the legal definition of statelessness remains a key category, the chapter examines the experiential implications of statelessness, understanding these as a form of unbelonging. Testimony makes legible the futurity of statelessness and invites creative engagement to elaborate on new aspirations.

Refugee camps, in particular, become places where past and future confront each other. Scenes of testimony – occasions when stories of “exodus” are repeated in refugee camps or other places of refuge – come to characterize something about the new place.³ Paradoxically, therefore, new aspirations can emerge from the hindsight of retrospective accounting. Such occasions to remember the story of flight for survival, moreover, recur over long periods, sometimes a lifetime, and might even be repeated by future generations. The persistent iterations of such stories over time accumulate to the point of cohering into a “common story” that binds a refugee community and gives it a “collective voice.”⁴ A new form of belonging suggests itself in the “collective voice.”

What follows is an attempt to explore the possible shape of such new belonging and see how it acquires meaning in an evolving present shaped by memory. Instead of assuming that the past holds secrets we need to uncover but is otherwise finished, reading for the purpose of identifying a new belonging demands a greater effort at integrating the past into the present and future. The past is dynamic and, upon repeated reexamination, yields new insight. Statelessness appears at different points in the timeline of testimony, which might extend over generations. The prolonged precarity of the stateless speaks to the urgency with which the new form of belonging surfaces. Statelessness can take on an existential dimension but, as a term, it refers to the legal definition and the loss of rights that go with it. The new forms of belonging redress the existential crisis, creating momentum and pressure to resolve the legal roadblocks to citizenship.

To elucidate this process of an emerging, cohering story that accounts for the past so as to make a claim for future belonging, I examine a historical example, the Armenian Genocide, and the work of Peter Balakian. Balakian not only makes the history of the genocide particularly legible but intuits the futurity of statelessness in his creative work, connecting past and present and offering an expansive view of humanity’s becoming that refuses to other the victims of genocide. It is from this ethical claim on his readers that Balakian’s work gains wide resonance in the literature on statelessness. I turn first to Balakian’s use of history and examine his ambitious layering of time. After a discussion of the temporalities of witness and testimony, I examine how Balakian works with this distinction to make an argument about the futurity of statelessness that draws from the impact of his grandmother’s testimony.

History and Belonging

Our question, therefore, is: What kind of belonging does an extended project of testimony over decades create for stateless persons? Refugees, according to Liisa Malkki, have a “passion for history.”⁵ The past matters a lot to them. Can history provide a compensatory space to restitute these subjects sufficiently so they can imagine a future? Agier speaks of a cultural recognition (“based on narration of the experiences of war, exodus, and refuge”) that creates a new community to replace what is destroyed while remaining connected to the past.⁶ It is the emphasis on the new that distinguishes this project from other formulations of the politics of memory. Such reconstitution of belonging acknowledges the past but is pragmatically anchored in the present. The “common story” of accumulated testimony actively renegotiates identity in the present and the emphasis on the new is most meaningful for imagining belonging.

There are challenges, however, on this path. The vocabulary of exile and exilic community (which makes reference to territory) has afforded one model of how to talk about displaced communities.⁷ Shifting the emphasis away from territory, as I do here following Balakian, leaves one with a difficult history that is unanchored, disjointed from place. Place can only be evoked in the present or the aftermath. In the texture of the present, Balakian thus discovers a traveling memory: a displaced history that speaks in another land. His life-long endeavor to recover the history of the Armenian Genocide in memoir, biography, poetry, and forensic documentation explores the potential for a diachronic belonging – a belonging in time – that speaks to the futurity of the stateless. Balakian’s practice is multifaceted and extends the work of testimony: it uses the present to find the past and bring it forward, making it matter in our current lives as we live them. Therefore, the effort reconfigures our belonging in the present through an awareness of the effects of past crimes against humanity. Through ongoing memory work, a new form of belonging is forged that extends our ethical awareness of the stateless in the present.

Moreover, because the Armenian Genocide was perpetrated within the context of a struggle over citizenship rights, it has particular relevance as an example of how to imagine the futurity of statelessness. The pressures of modernization in late Ottoman Turkey reached a climax in the Revolution of 1908, which sought to secularize the state and guarantee equal participation in civil and political life, as well as citizenship, to minority populations.⁸ The revolutionary ideals did not hold, however, and a devastating reaction ensued, resulting in various episodes of mass displacements, mistreatment, and killings that culminated in the genocide a few years later. Importantly, Armenians expressed their allegiance to the revolutionary ideas of 1908 with passion and they understood the huge suffering that followed as the loss, or failure, of citizenship rights.⁹

Although the crisis was viewed internationally through the lens of humanitarianism, Balakian accounts for his grandmother’s experience through the more robust legal framework of human rights, making her visible as a rights-claiming subject with an outlook to the future. Whereas some displaced Armenians were resettled in the Soviet Republic of Armenia after 1920, most of the displaced survivors came from Anatolia (Turkey) and became long-term refugees, residing in camps and other temporary refuges, until their legal circumstances were clarified.¹⁰ The expectation of an Armenian homeland to settle the historical wrong was not fulfilled (the Soviet Republic did not become such a symbol). Hence this “common story” that struggled to become legible against denial and silence is also an important example of how history – as an ongoing process of constructing the story of the past – functions as a multigenerational point of reference for a community. Balakian’s oeuvre as a whole makes legible the complex belonging in a common story that is also specifically addressed to the United States (he speaks very self-consciously as an American) and illuminates the ethical stakes for Americans in belonging together with the stateless.

We can describe Balakian’s work as a literature of witness structured in the form of a multigenerational dialogue. He calls his grandmother (who died when he was ten years old) his “beloved witness.”¹¹ A survivor of the death marches of 1915, when the Ottoman Turkish army forcefully removed the Armenian population of Diarberkir and marched them into Syria, Nafina found temporary refuge in Aleppo. There she earned a living as a seamstress for five years until she entered a home to deliver a wedding dress and saw a carpet that had belonged to her family. She filed a suit, reclaimed the rug, sold it, and paid the passage to America for herself and her two young daughters.¹² In the United States, she remarried another Armenian refugee, had a daughter (Peter’s mother) and lived a second life as part of an affluent, educated, and intellectually inclined family in the New Jersey suburbs of New York City. But her life was carefully circumscribed to remain within a comfort zone that kept the trauma of the past suppressed. She refused to leave the United States even to accompany the family on a trip to Paris. Only in the United States did she feel safe, far enough away from the historical forces that threatened her.

That Nafina might stand as a historical figure who brings the stateless closer to us today is evident from Silvia Salvatici’s history of humanitarianism. Salvatici quotes extensively from Nafina’s testimony in 1920, recorded in her claim for reparations from the Turkish government.¹³ Salvatici structures her history around key moments of testimony (used as epigraphs throughout the book) by historical figures who are paradigm-setting voices of witness for humanitarianism. Nafina’s emblematic status is apparent from her place in this series representing landmark events in the history of humanitarianism that include, in addition to the Armenian Genocide, the Crimean War, Biafra, the Rwanda Genocide, and other events. Nafina’s testimony (from her claim for reparations and other documents I discuss below) appears first in Balakian’s memoir of his own growing up into consciousness of the genocide, then molds into the common story of surviving the genocide. Salvatici draws together the testimony of an individual survivor with the horrors perpetrated and recasts them in a collective narrative that outlines a historical event on a larger canvas: “The adult men were killed en masse and then the women and children were led to the desert regions of Mesopotamia.”¹⁴

Thus, Balakian can be said to launch his grandmother’s significant testimony into the public domain where it becomes a flashpoint for a common story of the genocide. It behooves us, therefore, to pay close attention to his own method of assembling the material for his memoir and for his subsequent writing, where he consistently returns to the genocide and connects it to an ongoing project chronicling the traumatic events of his era (including 9/11 in his collection, Ziggurat).¹⁵ Balakian’s exploration of the history of the genocide contributed to his Pulitzer Prize-winning poetry collection Ozone Journal in which he weaves the work he did in forensic archaeology (uncovering the remains of those who perished in the death marches of 1915) with the memories of his own personal life crisis in 1980s New York: his growing estrangement from his wife and his cousin’s suffering in the last stages of AIDS. New York, moreover, is filtered through a more recent past, the 1970s, when he had been happier. Adding yet another layer of time, the entire poem connects to environmental catastrophe and the thinning of the ozone layer, warning of total death from the sun’s unfiltered rays: “no plankton, no world: who can take in the dread—.”¹⁶ This question (“who can take in the dread—”), which ends with a dash and not a question mark as if it is permanent and unresolved, takes us back to the predicament of those who witnessed mass extermination while anticipating their own deaths. The poet draws an analogy between ecocatastrophe and genocide laying that feeling of “dread” at our door as we confront the fear that we might succumb. And, whereas it is doubtful that we can live up to our moment, we feel the imperative to try and figure out how to do it.

What is most important to our concerns here is the pattern of Balakian’s exposition, which overlays the present onto the past in order to demand of the reader an expanded awareness. He places the present danger of violent destruction in the reader’s sight. It should not be enough to join the poet in a painful awareness of the enduring trauma of the Armenian Genocide simply as an exercise of humanistic reading. The common story we should reach for grapples with the reality of contemporary mass violence and displacement in continuity with the past, and all of it in the context of environmental catastrophe. The reader might already be primed to recognize ecological catastrophe as a crisis. Balakian then links this by analogy and poetic image to the plight of the stateless, making it hard to refuse the urgent predicament of the stateless in our contemporary moment. Moreover, we realize that if we do not broaden to an understanding of statelessness and precarity in the present, we risk the kind of complicity in silence similar to the one that impeded Balakian’s effort to apprehend the full import of his family’s history. As we learn from the text, the family’s silence about the genocide kept the young Peter in ignorance until his college years. Reading the memoir, we come to an appreciation of Balakian’s discovery of history and, as a result, cannot blind ourselves to a similar interconnectedness with world events in the present.

Balakian brings to mind Dori Laub’s highest sense of witness: the expectation that to witness is to have interruptive force and intercede with the truth to stop a particular action. Laub describes this interruptive witness as a “concurrent” witness that calls out the truth of an event as it is unfolding.¹⁷ The injunction to interrupt is suggestive for the kind of witnessing that Balakian seeks and his belief that one must constantly renew the witnessing of past atrocity in order to forestall its repression in memory. His grandmother is his “beloved witness” in the sense that Peter, as her beloved claimed as an intimate extension of herself, must carry on her witness. The historical figure (his grandmother) leaves behind testimony that he uses as material to posit his writing as “concurrent witness” to his own time. Such witness accounts create an enormous and hard-to-fulfill expectation of authenticity. How do they manage these expectations? Within literary discourse, we find a partial answer in the figure of the poet, as Balakian understands well.

The special function of the poet to bestow authenticity to historical experience is well established. Turning to the opening of Anna Akhmatova’s “Requiem,”¹⁸ legal scholar and human rights practitioner Ron Dudai reminds us that the poet is asked to “describe this”: the scene of women standing outside Leningrad prison as they wait for word about their imprisoned men.¹⁹ Akhmatova’s celebrated poem gives witness to the sufferings caused by Stalin’s purges in the 1930s. For Dudai, it is significant that the poet is asked to “describe this” as opposed to being asked “to help.” Description is intervention. To give voice to a collective experience demands a special skill but also a person with recognized authority to speak for the group and persuade the targeted audience of the authenticity of the experiences. These are the poet’s burdens, and they clarify for us what Balakian tasks himself with. As Dudai explains, however, we have come to expect from human rights reports of abuses that description gains authority by being pared down, “allowing the facts to speak for themselves,” and suppressing literary elements or overly narrative qualities.²⁰ In practice, we construct evidence rhetorically – evidence is not what is true but that which is used to persuade us of the truth.²¹ Literature, therefore, can persuade by providing the context for recognition, and hence also for potentially new forms of belonging.

Theories of testimony have explored the difficulties of bringing forth the outline of events suppressed by trauma. As Shoshana Felman puts it, traumatic events are “events in excess of our frames of reference” that are difficult to talk about.²² The traumatic event is the lacuna around which an account of trauma’s toll blossoms. Expanding on this idea, Laub calls our attention to the “historical gap” that separates the events recounted from the recounting, and the difficulty or near impossibility of transmitting testimony in real time.²³ As noted, he provocatively suggests that should “concurrent witnessing” be achieved, it would bring about an interruption of the event being witnessed. Although Laub presents this as unlikely, its possibility is the great hope for what a mission to give witness might accomplish for human rights: to intervene and interrupt the harm. Witnesses in real time can thus be agentic subjects at the scene of catastrophe. NGOs such as Doctors Without Borders have, in fact, made witnessing a foundational aspect of their practice.²⁴ By contrast to witnessing, testimony is the task of retrieving the contours of the event retrospectively through the obfuscations of trauma. This is a process that takes time.

In a sense, Balakian fuses the two temporalities that distinguish witness from testimony: he acts as a witness in the present by responding to his discovery of a historical testimony that has taken a considerable amount of time to surface. His involvement in forensic projects to find the remains of Armenian victims carries forward the relevance of his findings to his contemporary moment, as is evident in the poems of Ozone Journal that weave this search for remains into an account of the challenges of our time. Forensics shares some qualities of the interruptive witness. Balakian’s poetic practice and its corollary in forensics suggest that the “common story” of the Armenian diaspora, to whose formation Balakian has contributed significantly, imagines a broader belonging in solidarity with the stateless today. This is more than what Agier calls the “existential community” shaped immediately after a catastrophe.²⁵ The pull of this new belonging pushes us all to act as interruptive witnesses to create a new futurity for the stateless. Whereas ultimately the goal is to resolve legally the condition of statelessness, the futurity alluded to here creates momentum toward recognition and, from there, legal and political change.

The Claims on the “Beloved Witness”

In Black Dog of Fate, Balakian reverse-engineers the authenticity of his grandmother’s testimony: the historical truth he discovers as an adult grows out of his affective attachment, which lends authenticity to Nafina’s testimony. Moreover, his method of exposition demonstrates how the present opens up the past and is of the most consequence in shaping a future. Balakian’s “epiphany,” recounted as the discovery and retransmission of his grandmother’s words, underscores the impact of Nafina’s testimony.²⁶ Importantly, an even more traumatic testimony by his Aunt Dovey surfaces alongside Nafina’s witness. Gaining confidence from Peter’s recognition of Nafina’s empowered stance (apparent in her claims for reparations), his aunt comes forth with her memories. This synergy between the two historical voices demonstrates how a context of multiple testimonies emerges over an extended timeline. Decades separate these two testimonial utterances. Dovey gives Balakian a first-person account of the signature atrocities of the Armenian genocide, including the death of men by crucifixion and mutilation and the burning alive of women, who were first forced to dance while being whipped and beaten in public.²⁷ This difficult narrative is presented to the reader only after Balakian’s extensive and poignant account of his childhood bond with his grandmother when the genocide was never discussed and he had no understanding of it. His retrospective account of his own growing up is filled with a sense of belated recognition of the signs genocide left on his family. These flashes of recognition, anchored in quotidian details, lend authenticity to his grandmother’s testimonial legacy and free his aunt to speak to him. As he notes in a poem: “memory was focus, detail, the thing—” observed in the ordinary world that surrounds us.²⁸

In large part, what Balakian describes in his memoir are the effects of post-memory: the inherited trauma that survivors’ families experience, resulting from the silences and the unspoken, unmourned past. The passage of time, deracination, and the loss of home together condition post-memory.²⁹ Balakian channeled this haunting into his poetry. What he didn’t know he knew burst forth in an early poem, “The History of Armenia,” composed when he guiltily skipped his grandmother’s memorial service ten years after her death to spend the weekend with his girlfriend. The process of writing the poem exposed how relevant the affective history of the genocide had been to him. Writing “The History of Armenia” reconnected him to his grandmother: “I could bring the two of us together again and create what she had in her encoded way told me. I realized that she was my beloved witness, and I the receiver of her story.”³⁰ Here he is both interpreting his grandmother’s code to understand her and creating new meaning by recasting their relationship in the present.

Thus, Black Dog of Fate can be read as a tribute to Balakian’s grandmother, but it is also most importantly a story of Balakian’s discovery of the history of the genocide, and his push against denial and silence. It exemplifies how coming to grips with the past is an ongoing, difficult process that simultaneously mediates the relationship with the present. As Balakian’s lived experience, the confrontation with the past is necessarily also part of the forward-moving temporality of his life into which he carries an expansive sense of the predicament of statelessness.

Moreover, the text obsessively records the importance of a sense of place in belonging. Regions, neighborhoods, streets, bus routes, construction sites, home interiors are all meticulously described. If these details evoke in Balakian’s readers a rich recognition of a particular place and time in metropolitan New York, they then also suggest that the place left behind by his family by analogy must have had an enormous affective significance. Its memory is teased out in the food, language, folk stories, and religious ritual that surrounded the young Peter. Growing up, he navigated these with some selectivity: loving the food, being perplexed by much of the rest, and in a flashpoint of conflict with his father not recognizing what he had no way of knowing, “what the Turks did to us.”³¹

Reading becomes instrumental in bringing the contours of the past into the present. During a summer job while he was in college, Balakian spends his free time reading Ambassador Morgenthau’s Story,³² which he pulled from his parents’ bookshelf because he had been intrigued by its possibility and was now ready to read it.³³ Yielding to Morgenthau’s witness from the times and quoting extensively from his book, Balakian takes his reader along in his discovery of the magnitude of the atrocities. This story of reading, in which we participate as Balakian’s surrogates, mimics a structure of human rights storytelling that is, in fact, widespread. Adam Hochschild, for example, structured King Leopold’s Ghost, his human rights history of the atrocities in the Belgian Congo, around similar scenes. Hochschild tells us, therefore, how Edmund Morel discovered the human rights abuses in the Congo by reading ships’ manifests and puzzling over what information was missing.³⁴ The idea that reading leads to discovery of fact is a bit peculiar in these cases: the facts are rarely new, and thus can’t be discovered in a strict sense. Even to say that this amounts to a personal discovery isn’t quite accurate because by the time Balakian, for example, reads Morgenthau he already has by his own admission a basic frame for these events from fragmented information that has been passed down to him. So, what is the significance of this story of reading? How does it offer something new?

The power of reading is frequently discussed in terms of its affective influence. It cultivates human sympathy and sharpens our abilities as ethical thinkers. Both dimensions are at play here but we need to put our finger on something in addition: in this example, the activity of reading becomes the plot of a story that explains retrospectively the impact of a text. This is different from drawing attention to a reader’s interpretation of the text. The story of reading dramatizes for us the experiential impact of reading, its transformative power, which, moreover, dramatizes the acquisition of a new understanding – deeper, more complex, more immediate – of past events. Stories of reading in a human rights context are about connecting with history in a way that rewrites its narrative.

The common story forged through the accumulated testimony of events of mass displacement can appear in creative work such as Balakian’s where it ignites a larger public awareness of an important past history and makes us aware of our connection to mass violence in our own time. This discovery in a shared story of reading situates the text as a reference point for belonging. The question of temporality with which this chapter began is pivotal. New forms of belonging can potentially be capacious but they require a flexible temporality, one that accommodates the flashes of traumatic memory and the “dread” of impending catastrophe in the present.

Balakian first published his memoir in 1997, a year before Hochschild’s history appeared and around the same time that there was a burst of literary works defining themselves in terms of human rights.³⁵ Generally speaking, the late 1990s was a period of intensified engagement of literature with human rights and we find this reflected in Balakian’s text where on several occasions he is explicit about his framing. Describing his reaction to hearing the phrase “remember the starving Armenians” as a college student and realizing that it existed in the popular conscience but he had never heard it at home, Balakian remarks: “No one ever told me that the image of Armenians starving to death was, for Americans, a slogan for the most dramatic human rights issue of the day.”³⁶ The starving Armenians are referred to in the historiography as subjects of humanitarian concern,³⁷ but Balakian suggests that humanitarian concern elided the main issue. Morgenthau’s account instead gets it right. He describes a genocide before the paradigm-setting history of the Holocaust and the body of international human rights law that followed and made such a designation recognizable.³⁸

Balakian’s story of reading culminates in his recognition of his grandmother as a human rights claimant. He reproduces the legal documents that record his grandmother’s claims for reparations from the Turkish government in 1920. This is not only a claim for reparation of property but a claim made on the basis of the violation of her physical integrity rights and the suffering caused. The document ends with this statement: “The Turkish government is responsible for the losses and injuries happened to [me], because I am a human being and a citizen of U.S.A., I am under the support of human and international law.”³⁹ Nafina intuits the language of human rights and claims a future. These documents reveal facts that Balakian was unaware of: that Nafina was an American citizen by marriage to an Armenian merchant who was a naturalized American (and not Balakian’s grandfather) and who had returned to Diarbekir in 1915 and died during “our deportation.” Poignantly, she states: “my husband Hagop Chilinguirian being dead on the way.”⁴⁰ The documents also include the list of other relatives that perished and thus outline her and her brother’s claim to the family property.

Most striking, however, is his grandmother’s stance as a human rights claimant on the basis of her United States citizenship by marriage: because I am “a citizen of U.S.A,” she says signing from Aleppo, Syria, she has the “support of human and international law.” Unusual as her circumstance was, it shows that without the good fortune of an American citizenship by marriage, she would have no grounds from which to make a legal claim. She is acutely aware of this privilege, announcing this citizenship as the basis of her claim, but also appears anxious that it will not be recognized. Nafina’s answer to “Question 63” of the legal form (asking her to explain the circumstances of her loss of property) states that her husband’s naturalization papers and passport were taken from him, and therefore she is not in possession of them. Teetering between statelessness and US citizenship as a refugee in Aleppo, Nafina persists in her claim. Thus, here too her thinking is proleptic. She intuits the logic of Hannah Arendt’s famous “right to have rights:” without citizenship, one cannot claim rights, thus human rights are not universal but conditioned on a particular form of belonging, that of citizenship.⁴¹

Included in Nafina’s legal testimony are also the devastating details that outline the truth of the death march. Such details situate Nafina in the particulars of an established history but reveal to Balakian a new person, his grandmother in a different life, on a death march, widowed and accompanied by two young daughters. She withholds the details of her husband’s passing, saying only that the male deportees were killed “one by one” and that her husband “feeble and indisposed, being subjected to such conditions, and seeing our relatives killed unhumanely [sic], he could not support the life, and died.”⁴² Balakian quotes extensively from the document and intersperses these passages with fragments from the most intense memories he had of his grandmother, scenes he has already rendered for the reader in the book’s eloquent, intensely affective opening chapters.

Reconciling the grandmother who doted on him and told him fantastic stories (including the one about Fate and the dead black dog) to the historical figure, Balakian bridges the two selves she had not been able to integrate in her own life. This harmonizing is at once a fiction and a history that occupies an expanded space created by the multilayered acts of retrospection. For the reader, it is less a matter of sympathy as it is of a deeper understanding of what we know. Such recognition can afford a sense of belonging, a response against the forces of silence.

The memoir exceeds Balakian’s personal remembrance of growing up and becoming a poet in suburban New Jersey. This surfeit significance gains over time and literally expands the text itself. The tenth anniversary edition adds two new chapters that give an account of Balakian’s travels to Turkey and Syria where he explores his grandmother’s path from Diarbekir, to the death camps of Der Zor, and then to Aleppo. The added material shifts our impressions of his grandmother once more by recasting her as the figure of the person in flight, a figure that is an enduring preoccupation of human rights. The deployment of its symbolism for the stateless by Balakian, therefore, updates the human rights framing for his text from 1997 to 2007. At the same time, these two added chapters perhaps make Nafina more spectral. She is less present than she was in the memoir as originally published. The narrative of flight distances the reader as it is a well-worn convention. But Balakian’s lens also widens and, taking in the places he visits, he addresses the magnitude of the historical event. Reexamining the past is always an incomplete task to be renewed over and over.

What literature and the arts offer to an exploration of statelessness goes beyond the documentary or the illustrative. Such works help us imagine the new by engaging history and its deep marks on our present condition. They afford a type of recognition cast as discovery that urges us to witness and hence interrupt the ways the past continues into the present. Through this witness, the stateless find new interlocutors with whom to claim belonging. The broadened sense of participation in history that Balakian instils in his readers links explicitly to an ethos of human rights: Everything is pegged on the idea that human rights give legibility to the type of responsible subjectivity that extends belonging to the stateless. Once again, this is in reference to a kind of “existential” belonging, as Agier puts it, in advance of a legal resolution, but it keeps such a resolution in mind. If reading affords a sense of place while maintaining the discomforting irresolution that accompanies the condition of statelessness, it may turn us outward to coalition building rather than inward to a sense of individual moral uplift. For the displaced, moreover, keeping alive an evolving sense of belonging – crucial for owning one’s historical subjectivity – requires receptive interlocutors willing to engage one’s story.

8 “Either I Close My Eyes or I Don’t” The Evolution of Rights in Encounters between Sovereign Power and “Rightless” Migrants

Daniel Kanstroom

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Around the world, harsh migration enforcement has sparked courageous humanitarian reactions. This, in turn, has led to hundreds of criminal prosecutions of aid workers, volunteers, ship captains, and many others.¹ As a major 2020 report by Amnesty International entitled “Punishing Compassion” noted, “In recent years, human rights defenders and civil society organizations that have helped refugees and migrants have been subjected to unfounded criminal proceedings, undue restrictions of their activities, intimidation, harassment, and smear campaigns in several European countries.”²

Such prosecutions ostensibly seek to vindicate the power of governments to control nation state borders. But, in a number of recent high-profile cases, they seem, ironically, to have achieved the opposite: They have vindicated, re-invigorated – and even inspired new forms of – basic human rights. Indeed, it is noteworthy that the subtitle of the Amnesty Report was “Solidarity on Trial.”³ This chapter explores how this has been happening and what it may portend.

Let us start with a brief introduction to perhaps the most famous such recent case. In 2017, Cédric Herrou, a French olive farmer, was criminally tried for having assisted unauthorized migrants in France, near the Italian border. Herrou, who had been arrested numerous times before for similar offenses, was described as being part of a quasi-clandestine resistance against the French government’s inhumane response to the European migration and refugee “crisis” that began around 2015.⁴ He became an inspirational figure in some quarters as his actions – and the French government’s reactions – provoked controversy and soul-searching around the world. Indeed, a New York Times writer analogized Herrou’s movement to the Underground Railroad.⁵

Perhaps more significant than his actions, Herrou’s legal cases have been both complex and unusually resonant. After one arrest in 2016, prosecutors declined to pursue charges because they accepted that Herrou was acting for “humanitarian reasons.”⁶ As he became increasingly prominent and continued his work with undocumented migrants, however, political and social pressures built. He was rearrested and charged with serious offenses. Herrou was, to say the least, unrepentant. At one of his trials, he testified, “My inaction and my silence would make me an accomplice, I do not want to be an accomplice.”⁷ Eric Ciotti, president of the Alpes-Maritimes department and a member of Parliament, held a quite different view: “Who can say with certainty that of the hundreds of migrants that Mr. Herrou has proudly brought across the border, there isn’t hidden among them, a future terrorist?”⁸ Ciotti argued more generally, “At the very moment when we need strict controls, Mr. Herrou’s ideological, premeditated actions are a major risk.”⁹

Herrou described his motivation clearly. When asked by a judge, “Why do you do all this,” he described French migration enforcement as “ignoble.”¹⁰ He evoked the deepest, most basic human rights and humanitarian principles: “There are people dying on the side of the road. It’s not right. There are children who are not safe.” The prosecutor, however, argued that Herrou had demonstrated a “manifest intention to violate the law …. One can criticize it,” he continued, “but it’s got to be applied.”¹¹ As the prosecutor bemoaned, “This trial springs from a communications strategy for a cause that I totally respect …. But I am the prosecutor. I must defend the law.”¹²

Similarly polarized arguments about migration enforcement and humanitarian aid have been taking place in other criminal courts around the world. Two German “rescue” ship captains, Carola Rackete and Pia Klemp, have faced criminal prosecutions for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy. In 2017, Italy had enacted a restrictive and highly controversial “Code of Conduct” pertaining to such rescues.¹³ Captain Rackete’s case was dismissed, but Captain Klemp faced up to twenty years in prison.¹⁴ Echoing other human rights activists, she has, with critical irony, referred to her prosecution as a “crime of solidarity.”¹⁵ In Arizona, the US government has repeatedly prosecuted Scott Daniel Warren, who was arrested and tried after allegedly providing food, water, beds, and clean clothes to undocumented immigrants near Arizona’s Sonoran Desert. His first trial resulted in a hung jury; the second in an outright acquittal, much to the dismay of the prosecutors.¹⁶

Such tectonic tension between government sovereign power to enforce migration rules and humanitarian or moral principles is not new. Criminal prosecutions of this type typically implicate notions of criminal intent (mens rea) and construction of ambiguous statutory terms. They may also implicate the so-called rule of lenity (the principle that statutes ought to be construed narrowly against the government so that people have a clear idea of what sort of conduct is criminally impermissible) or, more basically, notions of “necessity” as a defense to criminal prosecution. But Herrou prevailed through a different, new, and potentially deeply influential strategy. “Remember the last word in the French Republic’s motto, ‘Liberté, Egalité, Fraternité,’” his lawyer argued. “They are saying M. Herrou is endangering the Republic. On the contrary, I think he is defending its values.”¹⁷ Herrou was convicted at trial. However, in a landmark decision, the French Constitutional Council overturned the verdict and held, for the first time, that fraternity is a principle with constitutional value: “The freedom to help others for a humanitarian purpose, regardless of the regularity of their stay on the national territory follows from this principle.”¹⁸ In related, if less constitutionally portentous formulations, Captains Klemp and Rackete appealed to the ideal of solidarity in their defense. Warren’s attorney, in closing argument, intoned to the jury, “Being a good Samaritan is not against the law, following the golden rule is not a felony.”¹⁹

This chapter considers certain basic human rights and politico-legal questions illustrated by these cases and others like them: What is the full extent of the “law?” What effects might such cases have on human rights law in general, and migrant rights more specifically?²⁰ It suggests that these prosecutions illustrate how human rights laws and principles are tested – and sometimes expanded – at the intersections of sovereign power, law, and compelling moral claims.

The analysis herein transcends previous initiatives designed to protect “human rights defenders.”²¹ As migration enforcement has taken increasingly harsh and life-threatening turns in recent decades, new principles are evolving and connecting in deep ways with extant and inchoate constitutional principles. The more vigorous governments become in harsh migration enforcement, the more such principles are invoked, and the greater power they may assume. This implicates deep questions of constitutional legitimacy and migrant rights as it also illustrates how rights develop and evolve. The process of creating rights is not primarily confined – as some interpreters of Hannah Arendt argue – to the internal processes of the nation-state. Nor is it intrinsically tied to the so-called right to have rights of those with membership in a political community. Rather, rights often arise from encounters between raw state sovereign power and ostensibly extralegal, humanitarian actions for those at the lowest ebb of their power and with the least legal status (what Agamben has called “bare life”).²² Such encounters demand a coherent legal response, which may be developed, if imperfectly, through such notions as fraternité and solidarity. These principles may enhance more well-accepted rights formulations such as dignity and equality as they engage the border between those who lack rights and those who seek to protect lives.

Such an analysis also helps us to understand and critique more technical initiatives, such as the European Union’s 2002 “Facilitation Directive” and the so-called Facilitators’ Package, which requests that member states criminalize behaviors that “facilitate” irregular entry, transit, and stay, aiming toward a consistent approach.²³ However, as a study commissioned by the European Parliament concluded, the European Union has brought about “legislative ambiguity and legal uncertainty.”²⁴ Fundamental questions remain unresolved. As Captain Klemp poignantly argued, “I refuse to believe that we live in a Europe where you have to go to jail for saving lives in need.”²⁵

Herrou: “There Are People Dying on the Side of the Road. It’s Not Right.”²⁶

The so-called European migration or refugee “crisis” that began in 2015 spawned not only reactionary politics and harsh policies but also creative legal responses at the intersections of sovereign power and basic human rights.²⁷ For example, a reinstatement of migration controls at the French–Italian border in November 2016 made the Roya Valley a dangerous crossing point for migrants seeking to enter France. In addition to other methods of police intimidation, harassment, and investigation, French prosecutors, since at least 2016, have brought criminal charges against activists and volunteers who assist migrants and asylum seekers.²⁸ Although many prosecutions resulted only in suspended sentences, they took a significant toll on the accused and contributed to the creation of “a hostile environment for humanitarian work in the region.”²⁹ Indeed, a recent study found that between 2015 and 2019, at least eighty-three people have been investigated or prosecuted in Europe for facilitating irregular entry and transit, and eighteen were investigated or prosecuted for facilitating the stay or residence of migrants and asylum seekers.³⁰

Pursuant to the French Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA), any person who, directly or indirectly, facilitates the illegal entry, circulation, or residence of a foreign national in France or on the territory of another contracting party of the Schengen Agreement shall be sentenced to five years’ imprisonment with a fine of €30,000.³¹ The statute has long contained two exemptions: certain close relatives of the foreign national,³² and the facilitation of illegal residence (“irregular stay”) of a foreigner when the alleged act does not give rise to any direct or indirect compensation and only entails providing legal advice, food, accommodation, or health care in order to ensure decent living conditions for foreigners, or any other assistance aimed at preserving their dignity or physical integrity.³³ However, neither the facilitation of illegal entry nor illegal circulation (internal movement or transportation) are covered by the statutory exemptions.

Herrou and Pierre-Alain Mannoni, a marine ecology research professor, were criminally prosecuted for assisting several illegal immigrants en route from Sudan and Eritrea via Italy. Herrou was already well known for this work. Mannoni was arrested after he picked up three Eritrean women who had just crossed into France, intending to give them a ride to Nice. He described having seen them suffering on the roadside: “They are afraid, they are cold, they are exhausted, they have bandages on their hands, on their legs.”³⁴ Herrou and Mannoni were convicted and given suspended prison sentences of, respectively, four and two months for facilitating the entry and/or circulation of illegal immigrants in France. Both appealed to the Cour de cassation, the supreme civil and criminal court in France. Their respective counsel then raised a “QPC” (question prioritaire deconstitutionnalité)³⁵ disputing the compatibility of the criminal statute with the principle of fraternity, in addition to other arguments. The Cour de cassation referred that question to the Conseil constitutionnel.

In its now famous decision of July 6, 2018, the Conseil held that fraternity is in fact a principle endowed with constitutional value in France.³⁶ The Conseil then concluded that the freedom to help one another, for humanitarian reasons – regardless of whether the assisted person is legally residing or not within the French territory – follows from the principle of fraternity. The Conseil made clear, however, that such freedom does not guarantee a general and absolute right of entry to – or even residence – on French national territory. The Conseil said that the legislature has the responsibility to “strike a balance” between freedom and fraternity in the fight against illegal immigration and a different constitutional objective: that of safeguarding “public order.”³⁷ Thus, the decision contained an innovative approach to individual constitutional rights even as it reinforced rather traditional notions of fundamental government sovereign power and public order.

The Conseil essentially narrowed the offense and broadened the exemption as a matter of constitutional principle. It concluded, rather technically, that the legislature had failed to strike an appropriate balance between fraternity and public order by limiting the scope of the exemption to providing assistance for irregular stay (“illegal residence”). The facilitation of illegal circulation (movement) was worthy of inclusion as an exemption to render the legislation constitutionally sound.³⁸ Recognizing the limitations of its legitimate role, however, the Conseil postponed the implementation of parts of its ruling. The immediate abolition of the contested parts of the statute might have had “clearly excessive consequences,” for example, the effect of extending the criminal exemptions established in Article L. 622-4 to actions that facilitate or attempt to facilitate illegal entry into French territory. Therefore, it was up to the Parliament to determine the modifications that must be made in order to remedy the ascertained unconstitutional aspects of the prosecution.³⁹

Simply put, the Conseil was treading a fine line between announcing rights-based enforcement limitations and superseding the state’s sovereign authority to control its external borders. Still, as of the day of the publication of its decision, Herrou would be exempt from prosecution for “humanitarian acts that aimed to facilitate the circulation of illegal immigrants when the latter is ancillary to their residence.”⁴⁰ A key, if rather complicated, line was maintained: “The assistance provided to the foreign national for his or her circulation does not necessarily give rise, as a consequence thereof, to an unlawful situation, in contrast with the assistance provided for his or her entry.”⁴¹ In other words, according to the Conseil, facilitating unlawful presence that has already been achieved is different for constitutional fraternity purposes than is assistance that enables entry.

The French legislature, called upon to act, did so quickly. The extant exemption was largely rewritten. It now covers all acts facilitating illegal circulation or residence that do not give rise to any direct or indirect compensation and that consist of providing legal advice, linguistic or social assistance, or any other assistance with an exclusively humanitarian objective.⁴² The criminal cases were then remanded. Herrou was not necessarily completely liberated, either from this case or from future similar prosecutions. Indeed, the practical reach of the Conseil decision was, as noted, quite narrow. A key issue will now be “facilitation of entry.” This remains an offense in France, whether or not motivated by humanitarian purpose.

Still, the Herrou decision has major implications. The substantive reliance on the fraternity principle – as a constitutional provision with real bite – may justifiably be called a milestone in French jurisprudence.⁴³ Indeed, the resonance of this case has led some to refer to the “Pandora’s box” of fraternity as a fundamental rights principle.⁴⁴ Moreover, the assertion by the Conseil of such broad interpretive and constitutional review power is a form of judicial authority that raises profound separation of powers questions. This is especially true in the legal realms of immigration and asylum, where deference to the government is typically strong.

To appreciate these phenomena more generally, let us now consider analogous cases in other legal systems: those of Captains Rackete and Klemp in Italy and of Scott Warren in the United States.

The Rescue Captains, Rackete and Klemp: The “Crime of Solidarity”

The French Conseil’s affirmation of strong deference to government power at the border – an exception to its elaboration of the fraternité principle – is echoed in all legal systems. It has had particularly powerful consequences in Italy, where thousands of desperate migrants have faced death on the Mediterranean for many years.

From 2014 to 2018, more than 600,000 migrants attempted the perilous crossing from North Africa to Europe.⁴⁵ More than 10,000 people drowned.⁴⁶ In addition to government and EU-led rescue missions – many of which were widely criticized by human rights groups – European NGOs began to charter ships to monitor the waters off Libya, rescuing migrants and transporting them to Sicily.⁴⁷ This led Matteo Salvini, Italy’s hardline, anti-immigrant interior minister, leader of the ultranationalist Lega (League) party, to close Italian waters to NGO rescue ships.⁴⁸ Malta soon followed suit. Several such boats were stranded at sea for weeks. Salvini, motivated by anti-immigrant sentiment and also concerned that France and other EU countries had not assumed what he saw as their share of the “burden,” said: “We will use every lawful means to stop an outlaw ship, which puts dozens of migrants at risk for a dirty political game.”⁴⁹ His understanding of the word “lawful” was soon to be tested.

In June 2019, following a grim, two-week standoff with Italian authorities, the Sea-Watch 3 docked at the Sicilian island of Lampedusa with forty-two rescued migrants on board.⁵⁰ One of the rescued migrants, a man from Ivory Coast, said in a video, “We can’t hold on any longer. It’s like we’re in a prison because we are deprived of everything. Help us, think of us.”⁵¹ The captain, Carola Rackete, had knowingly defied Salvini’s ban. In a video, Rackete said: “I know this is risky and that I will probably lose the boat, but the 42 shipwrecked on board are exhausted. I will bring them to safety.”

Sea-Watch 3 declined to bring the migrants to Tripoli, as Italy had demanded. “Libya is not a safe country,” said spokesperson Giorgia Linardi. “Forcibly taking rescued people back to a war-torn country, having them imprisoned and tortured, is a crime that we will never commit.”⁵² Salvini, however, called the Sea-Watch 3 “an outlaw ship.” By early evening, the ship was about two to three nautical miles away from Lampedusa when it was boarded by Italian financial police. A Sea-Watch 3 spokesperson, Ruben Neugebauer, said: “We are waiting for Italian authorities now. There is not much more we can do. We will not run away.”

Rackete was charged with criminal offenses, but the charges were dismissed in July 2019. Judge Alessandra Vella, among other concerns, opined that the crew’s actions were justified under the circumstances “in the performance of duty” and found that neither Libya nor Tunisia were safe ports. The judge further concluded that Salvini’s decree should not apply to rescue operations, but only to human trafficking. Salvini, unrepentant, said that Captain Rackete would be expelled to Germany because she was “dangerous for national security.”⁵³

In a related case, Pia Klemp, the captain of the Iuventa, another rescue vessel, was accused with nine others of aiding and abetting illegal migration in relation to their role in seeking to rescue people in danger after fleeing Libya. The charges carry a prison term of up to twenty years or a €15,000 fine for each person illegally brought to Italy.⁵⁴ This grim test of will, power, and principle shows little signs of definitive resolution. However, it has become clear that criminal law has become a fulcrum upon which to balance larger political and rights principles. A petition in support of Captain Klemp and her crew, signed by some 71,000 people, intones: “If the crew were convicted, it would be the end of humanity in Europe.”⁵⁵ A court in Sicily ruled in January 2019 that Salvini himself could be charged with kidnapping after he prevented refugees from disembarking from an Italian coast guard ship in August. “I confess,” Salvini taunted back, “there is no need for a trial. It’s true, I did it and I’d do it again.”⁵⁶

In June 2019, Italy’s government closed Italian ports to migrant rescue ships and threatened fines of up to €50,000 and impounding of the vessel.⁵⁷ Claudia Lodesani, president of Médecins Sans Frontières in Italy, said: “The new decree is threatening legal principles and the duty of saving lives. It is like fining ambulances for carrying patients to hospital.”⁵⁸ Carlotta Sami, the spokesperson for the United Nations High Commissioner for Refugees (UNHCR), said: “If we do not intervene soon, there will be a sea of blood.”⁵⁹ In September 2019, a new agreement was reached pursuant to which Germany and France would take in 25 percent each of the migrants onboard another rescue ship, the Ocean Viking. Other EU states, including Italy, would process the others. Following a meeting with the European Council president, Donald Tusk, in Brussels, Conte said EU member states that refused to share the burden of the arrival of migrants should face financial penalties. Salvini, though out of power, was unwavering: “The new government has opened again its seaports to migrants,” Salvini said, “The new ministers must hate our country. Italy is back to being Europe’s refugee camp.”⁶⁰

Meanwhile, although the number of desperate migrants seeking to cross the Mediterranean has decreased recently, it is clear that risks have remained severe.⁶¹ As the UNHCR notes, “it is likely that reductions to search and rescue capacity coupled with an uncoordinated and unpredictable response to disembarkation led to an increased death rate as people continued to flee their countries due to conflict, human rights violations, persecution, and poverty.”⁶²

Warren: Water in the Desert

The government failed in its attempt to criminalize basic human kindness.⁶³

At least 7,000 migrants who have tried to cross the parched lands of the southern United States near the Mexican border since the 1990s have died doing so.⁶⁴ The deaths are a terrible consequence of “prevention through deterrence,” a border control strategy first developed during the Clinton administration.⁶⁵ The Border Patrol built barriers in traditional entry points near urban areas such as El Paso to push border crossers out into more remote and dangerous terrain. Doris Meissner, then-Commissioner of the Immigration and Naturalization Service (which at the time included the Border Patrol), later described the plan in remarkably optimistic terms, suggesting that policymakers believed that once people saw how perilous the new routes were, they would stop trying. As Meissner put it in 2019, “The deaths weren’t contemplated. Obviously, one can’t be anything but regretful about the deaths.”⁶⁶ As a 1994 Border Patrol memorandum had put it, however, the essential idea from the beginning was to disrupt traditional entry and smuggling routes so that “illegal traffic will be deterred or forced over more hostile terrain, less suited for crossing and more suited for enforcement.”⁶⁷ The planners knew that those who were thus compelled to avoid traditional routes could “find themselves in mortal danger.” Indeed, the Border Patrol cruelly envisioned that “violence will increase as effects of the strategy are felt.”⁶⁸

The human costs of this strategy soon became horribly clear. By 1998, the Border Patrol launched the “Border Safety Initiative,” a set of measures to warn migrants about risks, rescue those in trouble, and quantify border-crossing deaths. But the initiative left it up to leaders in each of the Border Patrol’s nine Southwest border sectors to decide which bodies to count and how. By the mid-2000s, the rising death toll continued to raise hard questions. In a 2006 report, grimly entitled, “Border-Crossing Deaths Have Doubled Since 1995,” the Government Accountability Office found that the Border Patrol had consistently understated the numbers of deaths.⁶⁹ Moreover, federal authorities had failed to ask local law enforcement agencies, coroner’s offices, and others about cases. Still, diversion to hostile terrain has been a major part of US policy now for a quarter century.

Scott Warren, when arrested, was a thirty-seven-year-old geographer and a volunteer with No More Deaths (aka No Más Muertes), an aid group that leaves water and food for migrants who seek to cross the deadly Sonoran Desert. This group, along with others, was inspired by the so-called Sanctuary Movement of the late 1980s.⁷⁰ As described by one of the Sanctuary Movement’s leaders, Reverend John Fife of the Southside United Presbyterian Church in Tucson, No More Deaths left water and provided medical aid. But it also documented abuses on the border, as “the most aggressive organization to challenge Border Patrol violations of human rights.” Fife noted, “If you look at the founding principles of the Sanctuary Movement and No More Deaths, they’re the same: ‘civil initiative.’” As he elaborated, “if government isn’t fulfilling its obligations, it’s up to civil society members to step in.”⁷¹ As one local activist put it,

When you think of how tiny our town is, and when you think of the number of bodies that were recovered last year – like 58 or 60 bodies that were recovered here – I can’t imagine that happening in any town in our country and not having people be up in arms … you have to do something. You don’t want to be a cemetery. These are human lives.⁷²

Warren was arrested by Border Patrol agents on January 17, 2018.⁷³ No More Deaths had just published a report that had implicated the Border Patrol in the destruction of thousands of gallons of water left for migrants in the desert.⁷⁴ As one reporter noted, it now seemed that the Border Patrol was “punching back.”⁷⁵ The agents caught Warren with two Central American migrants. Warren told the agents that he had given the migrants shelter, food, and first aid. All of this seemed to the agents to clearly violate US law, which bars “harboring” and “transporting” unauthorized migrants. The Border Patrol and prosecutors – unmoved by Warren’s humanitarian motives – argued that he was assisting the migrants to evade custody. He was charged with two counts of harboring undocumented immigrants and one count of conspiracy to harbor and transport. He faced some twenty years in prison. Also, in a particularly bizarre exercise of state power, Warren, along with nine other volunteers, faced federal charges of littering for leaving water on the Cabeza Prieta National Wildlife Refuge.⁷⁶

At Warren’s first trial in June 2019, the jury failed to reach a verdict.⁷⁷ The government quickly sought a retrial, although it dropped the conspiracy charge. After a six-day retrial in Tucson, Arizona, in November 2019, the jury found Warren not guilty after about two hours of deliberation. Reports from the trial and conversations with jurors might seem to indicate that Warren’s case was quite different from those of Herrou and the captains. His lawyers did not mount an explicit “necessity defense” (i.e., arguing that Warren should not be criminally punished for avoiding a greater harm to others). Nor did they expressly argue for jury nullification to override the letter of the law in the pursuit of abstract ideals of higher justice. Warren’s lawyers simply argued that the government had not proven criminal intent, something that was surely rather nebulous under these circumstances. The government had devoted enormous resources to investigation and surveillance. They had evidence. Warren, for example, was observed with the migrants pointing northward. Prosecutors argued that this meant he was guiding the migrants away from the border and deeper into the United States. But Warren testified that he was merely showing them local mountains.⁷⁸ He said that the only available highway ran between them. If they needed rescue, that’s where they should go. But if they strayed outside of those mountains, they would find an active US bombing range and deadly desert.⁷⁹

How should a jury decide such questions? One can hear the echoes of Warren’s humanitarian motives and sense the larger debates about harm and justice in every facet of the case. Warren testified that the work he and others do is similar to that of the International Red Cross: neutral provision of aid amidst humanitarian crisis. From this, one gleans a hint of necessity and nullification. Such work, he said, is legal. The jury accepted this, apparently completely. One juror reportedly said, “He seemed like a humanitarian that was just trying to help. He seemed very kind and not like he was trying to harbor somebody or do anything illegal at all.”⁸⁰ As another juror put it, nullification of the law was not necessary: “There was just too much of a lack of evidence to convict,” he said. “I think we can all agree, it was the intent ….” But a third juror chimed in after the trial: “I think we all agreed,” she said, “what he and these people do is fantastic.”⁸¹

In the end, Warren’s jury – through their interpretation of his intent – policed the border between law and deep values. The prosecutor, a US attorney, did not see it this way. After the not guilty verdict, he promised that in future cases his office “won’t distinguish between whether somebody is trafficking or harboring for money or whether they’re doing it out of, you know, what I would say is a misguided sense of social justice or belief in open borders or whatever.”⁸² One of Warren’s lawyers, Amy Knight, was offended by the word “misguided,” seeing it as “a value judgment, not a legal judgment.” As she paraphrased the instructions that had been given to the jury, “If you’re doing it out of a sense of social justice, then you don’t intend to violate the law.”⁸³

The Potential Power and Limitations of Fraternity

I speak an open and disengaged language, dictated by no passion but that of humanity … my country is the world, and my religion is to do good.⁸⁴

The cases of Cédric Herrou, Captains Rackete and Klemp, and Scott Warren clearly involve distinct, technical legal questions and different sociopolitical backdrops. However, the fundamental issues they present have much in common, whether understood through the lens of fraternity, solidarity, necessity, or more general implicit values of justice and fairness that always guide interpretations of facts and law. These questions, most simply put, are:

1. 1. What legal principles may be invoked when humanitarian actions impede or conflict with government power over “unauthorized” migrants?

2. 2. Where do such principles come from and how do they evolve?

The idea that a particular doctrinal formulation is all one might need to inspire judges and legislatures to humanize border practices and to protect the fundamental rights of migrants is of course a form of magical thinking that must be resisted. Still, the potential of power of fraternity, compared to solidarity, necessity, equality or even dignity, is worth considering.

Fraternity

Although the roots of fraternity as a philosophical principle may be traced back through antiquity, its resonant strength – and certain historically well-known and ideological objections to it – may be most directly traced back to its origins as a motto of the French Revolution.⁸⁵ Though its evolution as a politico-legal concept in France was rather slow and tentative, it was eventually incorporated into the 1958 Constitution.

Though some suggest – following Diderot – that fraternity may be largely a euphemism for the ostensibly broader concept of “humanity,” fraternity is a narrower ideal that, in some respects, may paradoxically be a stronger source of obligation than humanity to those who arrive from outside of a particular civil society.⁸⁶

Some, however, view fraternity as a rather limited, highly interpersonal concept. Wilson Carey McWilliams, for example, in a 1973 book entitled The Idea of Fraternity in America, saw fraternity as “a bond based on intense interpersonal affection.” It was thus “limited in the number of persons and in the social space to which it can be extended.” Moreover, it “implies a necessary tension with loyalty to society at large.”⁸⁷ But this seems a rather parsimonious approach when compared to obligations that go beyond charity and beyond narrow conceptions of interpersonal relations or community.⁸⁸ Since the Enlightenment, fraternity has often been said to transcend a “feeling of a community and the demand for communion.”⁸⁹ Rather, it “postulated an order based on the equality of men.”⁹⁰ Whether that order – what Robespierre once called les doux noeuds de la fraternité (“the sweet knots of brotherhood”) – is confined to the “Fatherland” or extends beyond that to a global community of values has always been an important if implicit question at the heart of the fraternity principle.⁹¹

More recent invocations have sought to situate fraternity within broader theories of justice, fairness, equality, and liberty.⁹² As former Canadian Supreme Court Justice Charles Gonthier wrote, fraternity advances core values that relate to forming a community.⁹³ It is in this sense a dynamic, evolutionary, aspirational, and idealized concept. Its related values, which he termed “interrelated threads weaving the cloth of fraternity,” include empathy, cooperation, commitment, responsibility, fairness, trust, and equity.⁹⁴ If the essence of fraternity is based on membership in a community, however, it is puzzling how it could ground a theory of rights to outsiders, or “others.” McWilliams’ argument that fraternity “is limited in the number of persons and in the social space to which it can be extended” could thus be a significant limitation.⁹⁵ The broader view, as Pope Francis recently explained, is much more powerful: “Universal fraternity and social friendship are … two inseparable and equally vital poles in every society.”⁹⁶ Fraternity, understood in this way, is “born not only of a climate of respect for individual liberties, or even of a certain administratively guaranteed equality. Fraternity necessarily calls for something greater, which in turn enhances freedom and equality.”⁹⁷ Social friendship and universal fraternity both “necessarily call for an acknowledgement of the worth of every human person, always and everywhere.”⁹⁸ Most relevant for our purposes: “No one, then, can remain excluded because of his or her place of birth, much less because of privileges enjoyed by others who were born in lands of greater opportunity. The limits and borders of individual states cannot stand in the way of this ….”⁹⁹ As Justice Gonthier noted, “fraternity may be universal in its object,” but it has specific applications.¹⁰⁰ Broad universal values of fraternity may, for example, be seen – in a relevant analogy to the Herrou matter – in the rather narrowly fraternal Quebec Charter of Human Rights and Freedoms, which contains a unique Good Samaritan provision.¹⁰¹

If fraternity were to be limited only to Good Samaritan ideals, however, then it would seem to amount to little more than charity, a relatively uncontroversial notion that does not imply much in the way of rights. The Herrou case, however, implies that fraternity is potentially more resonant and powerful than this. And for this reason, it has provoked historically well-known objections. Conservatives have long recoiled at the abstract ideal of love of “mankind,” particularly when clothed in the language of brotherhood. James Fitzjames Stephen, for example, in his 1873 critique of the neo-utilitarian philosophy of John Stuart Mill in Liberty, Equality, Fraternity, offered a stinging rejoinder to proponents of universal fraternity. Though admitting as “common ground” that “upon some terms and to some extent it is desirable that men should wish well to and should help each other,” Stephen expressed a feeling of disgust … for expressions of general philanthropy” that he saw as “an insulting intrusion.”¹⁰²

The potential power of fraternity as a legal concept derives from the fact that it does not necessarily demand a clear choice between a cosmopolitan view of rights and a Burkean idea of rights as “a patrimony derived from … forefathers.”¹⁰³ Fraternity imbues charity with implications of universal obligation. This accounts for its invocation as the spiritual admonition in the very first article Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”¹⁰⁴ In its recognition of the constitutional principle of fraternity in the Herrou matter, the Conseil constitutionnel thus articulated a humanistic, universal interpretation ideal deeply related to the Declaration and to Kant’s duty of “hospitality.”¹⁰⁵

Scott Warren’s lawyer argued to the jury, “Being a good samaritan [sic] is not against the law, following the golden rule is not a felony.”¹⁰⁶ One could perhaps view this as an implicit invocation of fraternity. But it is a narrower argument against proof of alleged criminal intent. The potential power of fraternity is stronger: as a constitutional principle, it could – as some legal commentators have advocated – override government attempts to criminalize all sorts of arguably socially just behaviors.¹⁰⁷ This is especially powerful in migration cases where the principle has a dual dimension: “a collective one based on solidarity and an individual one based on tolerance.”¹⁰⁸

Solidarity

Solidarity, too, may have this dual dimension. Solidarity has typically been viewed as an internal value within communities.¹⁰⁹ However, it also may apply – like humanity and fraternity – to global issues. As Pope Francis has put it, “No one can remain insensitive to the inequalities that persist in the world.”¹¹⁰ He then called for “a valuable lesson in solidarity, a word that is too often forgotten or silenced because it is uncomfortable,” as he appealed to “those in possession of greater resources, to public authorities and to all people of good will who are working for social justice: never tire of working for a more just world, marked by greater solidarity.”¹¹¹ Other exponents of the Catholic social teaching ideal of solidarity similarly emphasize the relationship between fraternity and solidarity. Pope Benedict XVI once noted that “As society becomes ever more globalized, it makes us neighbours but does not make us brothers.”¹¹² On this view, solidarity is “simply the demand of fraternity, that we treat each other as brothers and sisters.”¹¹³ The Catechism of the Catholic Church thus emphasizes solidarity “among nations and peoples. International solidarity is a requirement of the moral order; world peace depends in part upon this.”¹¹⁴

It is noteworthy that activists such as Cédric Herrou and Captains Rackete and Klemp sometimes refer, ironically, to the crimes with which they have been charged as crimes of solidarity.¹¹⁵ This reflects how solidarity operates both as a normative principle and as legal doctrine in Europe. Article 2 of the 1993 Treaty on European Union (TEU) lists values that are common to the member states.¹¹⁶ It then states that these values are common in a society in which “pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”¹¹⁷ The EU Charter of Fundamental Rights lists solidarity more prominently and specifically as a value. Chapter IV of the Charter, “Solidarity” (which precedes the chapter on “Citizens’ Rights”), lists rights of workers, prohibits child labor, protects family rights (including protections against dismissal due to maternal and guaranteeing parental leaves), social security, health care, access to “services of general economic interest,” environmental protection, and consumer protection.¹¹⁸ Thus, solidarity appears in the European Union as a “vector of concrete social rights … aimed at the protection of individuals as such or in their economic capacity.”¹¹⁹

Solidarity, like some narrow visions of fraternity, may also work as an exclusionary principle. This can be seen in situations where solidarity is not viewed as a universal construct, but is limited to particular communities. Article 67 § 2 of the Treaty on the Functioning of the European Union, for example, mandates a common policy on asylum, immigration, and external border control, which is based on solidarity between member states but which is simply “fair” toward third-country nationals.¹²⁰

Necessity

The lawyers in Warren’s case and those planning the defense of Pia Klemp also rely on the defense of necessity. This defense, a form of justification, has been most simply defined as “the assertion that conduct promotes some value higher than the value of literal compliance with the law.”¹²¹ Others have called it the choice of “the lesser evil.”¹²² It is obviously related to broader concepts within the Anglo-American adversarial system, such as jury nullification, and to related defenses such as “excuse.”¹²³ But there is a basic distinction between an excuse and a justification: that between being “forgivably wrong” versus being right. Thus, a person who claims justification does not seek pardon, nor argue for mitigation or excuse. Justification implies that there is no need for forgiveness.¹²⁴

Though its roots in Anglo-American law are complex and interwoven with various semantic formulations, the basic idea of necessity has long resided at the intersection between positive law and moral principle.¹²⁵ Sir James Fitzjames Stephen, in his 1883 treatise, referred to the necessity defense as “one of the curiosities of law,” and a subject on which the law of England was “so vague that if cases raising the question should ever occur the judges would practically be able to lay down any rule which they considered expedient.”¹²⁶ One might well ponder whether this renders necessity too vague to be a meaningful legal principle, perhaps more a matter of discretion than law.¹²⁷ In fact, necessity has sometimes been used as an epithet against judges themselves. A nineteenth-century Texas Justice of the Peace was reportedly known as “Old Necessity” because he knew so little about the law. Deadwood judge, W. R. Keithly, apparently had the same moniker during the Gold Rush.¹²⁸ Others, however, have historically sided with Sir Walter Scott that although the law of necessity “is not well furnished with precise rules … necessity creates the law; it supersedes rules; and whatever is reasonable and just in such circumstances is likewise legal.”¹²⁹

The way in which the necessity principle has informed the development of international law illustrates its potential limitations.¹³⁰ Robert Phillimore cites Lord Stowell, who opined that “a clear necessity will be a sufficient justification of everything that is done fairly and with good faith under it.”¹³¹

One’s potential admiration for Cédric Herrou or Captains Rackete and Klemp should not obscure the difficulties inherent in the defense of necessity, however. Its invocation is always – indeed inevitably – highly controversial.¹³² It arose famously in nineteenth-century cases of cannibalism among those adrift on the high seas. The British Home Office¹³³ and judges reportedly worried that if yielding to temptation were sanctioned, necessity might become “the legal cloak for unbridled passion and atrocious crime.”¹³⁴ Perhaps the most salient example of this is that necessity was invoked as a defense to prosecution by the defendants at Nuremberg, whose counsel argued that a necessity defense “must also be considered one of the fundamental principles of the criminal law of all civilized nations.”¹³⁵

The (Re-)Birth of Rights through Fraternity, Solidarity, and Necessity

Hannah Arendt famously (and chillingly) noted the failures of abstract human rights principles to protect “national minorities” and stateless people prior to the Second World War: “The world found nothing sacred in the abstract nakedness of being human.”¹³⁶ Arendt reasoned that, to have meaningful rights, individuals must be more than mere human beings; they must be members of a political community. She called this right the “right to have rights.” As she wrote in The Origins of Totalitarianism: “We became aware of the existence of a right to have rights [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.”¹³⁷

The cases of Herrou, Warren, and Captains Rackete and Klemp challenge this rather circumscribed formulation. They offer powerful examples of how encounters at or near the borders of the “organized community” between potentially “rightless” outsiders and state agents cannot be completely insulated from legally salient human rights claims. Rights norms grounded in fraternity, solidarity, and necessity are, to be sure, complex and nuanced. They arise in technically detailed ways at particular points of legal processes. Moreover, one might object that, in all of the cases discussed herein, they have been successfully deployed not by migrants themselves but derivatively by those who sought to aid them. This is an important objection. But it does not disprove my main thesis. Logically, one cannot make sense of fraternity, solidarity, or even necessity without acknowledging that the migrants themselves must be understood to have certain basic human rights, too, albeit in a perhaps rather nascent form. As evolving legal principles, they are thus firmer, more distinct, more crystalized, more enforceable, and more a part of law itself than, for example, an aspirational ideal such as charity.

To be sure, this is a challenge for human rights theories in general. As Jacques Rancière has noted, echoing Arendt: “the Rights of Man turned out to be the rights of the rightless, of the populations hunted out of their homes and land and threatened by ethnic slaughter. They appeared more and more as the rights of the victims, the rights of those who were unable to enact any rights or even any claim in their name.”¹³⁸ The effects of this, as well illustrated by the cases described herein, are problematic in many ways. For one thing, as Rancière highlights, “eventually their rights had to be upheld by others, at the cost of shattering the edifice of International Rights, in the name of a new right to ‘humanitarian interference.’”¹³⁹ This raises the old concern of Arendt that “the ‘man’ of the Rights of Man was a mere abstraction because the only real rights were the rights of citizens, the rights attached to a national community as such.”¹⁴⁰

But a deeper analysis of such ostensibly humanitarian cases offers a more optimistic rights vision. Fraternity, for example, is a dialogical concept. It implies certain human rights that go beyond those of Herrou to be kind, as it were, to any living creature. While the Conseil was at pains not to create an explicit right to enter France, the extension of what one might call derivative constitutional fraternity rights to those on French soil without legal status is a conceptual step forward from the EU ideals of solidarity and surely a more powerful rights principle than using necessity merely as a defense.

Moments such as the encounters between Herrou, Warren, Captains Rackete and Klemp, and state agents are significant because they also involve the presence of other human beings, the migrants themselves, who have definable – and perhaps someday enforceable – rights claims. Thus, justice and rights are much more than “a negotiation between the conflicting rights of members of a community.”¹⁴¹ These encounters illustrate a profound negotiation between the rights of members of a community and the rights of those who are not members of that, or perhaps of any legally cognizable, community.¹⁴²

Legal challenges by, on behalf of, or in relation to unauthorized migrants are often seen by governments as an impediment or an annoyance, if not part of a crime. Others view such claims more positively, but still in an impoverished way – as, at best, a humanitarian corrective against occasional harsh practices. But such invocations of evolving legal principle are much more than this. As the Herrou case demonstrates quite clearly, they are part of the dynamic process of mediating the inevitable tension between majoritarian, “sovereign” power and the rights aspects of law. Indeed, this is a component of the essential revitalizing project of both constitutional democracy and of international human rights law. As Bonnie Honig has suggested, we should reframe the traditional question: “How should ‘we’ solve the problem of foreignness?”¹⁴³ That question inevitably leads us to ask what “we” should do about “them.” A more intriguing and useful inquiry is: “What problems does foreignness solve for us?”¹⁴⁴ The most important such problem is how – in a real, tangible way – to implement Martha Nussbaum’s admonition that, “[w]e should recognize humanity wherever it occurs, and give its fundamental ingredients, reason and moral capacity, our first allegiance and respect.”¹⁴⁵

In sum, noncitizens, especially the unauthorized and ostensibly “rightless,” are uniquely positioned to challenge, to critique, and to improve the meaning of law in constitutional democracies and of international human rights. This is both despite and because of the threats and disadvantages they experience. Through the legal system, noncitizens are a crucial part of a “circular process that recursively feeds back” into engagement and debate.¹⁴⁶ Since legitimate lawmaking both responds to and generates communicative power from, as it were, below, noncitizens play a central role in translating communicative power into administrative power and law. The reactions of the French Parliament to the Conseil decision in the Herrou case illustrate this phenomenon well. Although the cases described in this chapter offer only moderate cause for optimism in terms of a more robust and comprehensive corpus of rights for migrants, the evolution of principles such as fraternity and solidarity may yet benefit not only “them,” but all of us, together.

9 Do Non-citizens Have a Right to Have Economic Rights? Locke, Smith, Hayek, and Arendt on Economic Rights

Serena Parekh

Many chapters in this book have examined the rights of non-citizens and what it might take to more fully realize these rights. In this chapter, I explore the topic of the economic rights of non-citizens through the lens of the history of philosophy. I make two different but interconnected arguments in this chapter, one that relates directly to the economic rights of non-citizens and one that relates more indirectly. In the first part of the chapter, I examine the claims made by John Locke, Adam Smith, and Friedrich von Hayek that a well-regulated market, supplemented by robust government support, is necessary for the realization of basic economic rights. To be sure, these writers do not use the term “economic rights.” They do, however, argue for what we in the twenty-first century consider to be economic rights: the right to unionize, to a living wage, to subsistence rights, to education, to labor rights such as safe working conditions, to adequate housing, and to social security. All three put forth views on the role of the state in guiding markets so that people are able to access these rights and the importance of government intervention when markets fail.

These arguments are important to highlight because they are often neglected in favor of their claims about free or unregulated capitalism. For example, many are familiar with Adam Smith’s idea that a free market requires limited government interference – the “invisible hand” of the market must be allowed to govern supply and demand. Yet he also believed that governments must, to some extent, regulate markets to ensure they are fair, do not produce too much inequality, and allow people to access what they need for a life of dignity. In other words, a “free” market must be carefully regulated for the sake of what we call economic rights. The purpose of this part of the chapter is to stress that in its theoretical foundations, economic rights required a particular relationship between markets and the state: markets must be allowed to work, but they must be regulated in ways that result in economic rights; when this does not happen, the state must directly step in to provide these basic rights. The work of Locke, Smith, and Hayek shows that, contra free-market or libertarian thinkers, the government is essential for economic rights. Recognizing how economic rights can be realized – that we should pay attention both to how markets are structured and how governments supplement them – is a crucial foundation for understanding the economic rights of non-citizens.

Though the views of Locke, Smith, and Hayek are important in understanding how economic rights can be realized and the role the state should play in this, they do not directly address what this might mean for non-citizens. Though the term “non-citizens” usually refers to residents of a country who do not have citizenship, I will be using it here mainly to refer to people who are present in a country without legal authorization, such as undocumented immigrants, as well as people who may be legally permitted in the country but are not permitted to participate legally in the economy, such as refugees living in refugee camps. Because Locke, Smith, and Hayek were not thinking about how non-citizens living in their countries might realize their economic rights, I suggest in the next section that their views must be supplemented by the work of Hannah Arendt and her concept of the right to have rights.

Arendt argued that most of what we considered human rights were really civil rights since they relied on a state to enforce them and states only cared about the rights of its citizens. In her view, what human beings needed was a right to have rights, which she understood as the right to belong to some kind of political community that recognized you as a member. However, Arendt was not thinking of economic rights specifically. What was on the forefront of Arendt’s mind when writing The Origins of Totalitarianism were the civil and political rights that had been denied to millions before and during the Holocaust, the rights to political participation, to legal standing, and to security of the person in particular.¹ These are the rights that permit human beings to act as political agents, which for Arendt was the capacity to begin something new that reveals ourselves to the world. Work and labor, the activities through which we build a world and sustain life – what we would consider economic activities – already occupied a privileged place in the modern world.² Indeed, Arendt worried that humans had already been reduced to homo economicus, to exclusively economic beings, to the neglect of the life of action. As such, economic rights did not seem to need their own protection.

I want to suggest, nonetheless, that her argument can be extended to economic rights because it is clear in the twenty-first century that being human is not enough to have one’s economic rights protected. Many non-citizens who are able to find work are often exploited and face poor working conditions. For those who cannot find work, and often even for those who can, poverty is the likely outcome, and this includes lack of access to basic health care and education for their children. Others, like refugees, who are not able to work in camps, remain dependent on international aid that is often inadequate and prevents them from accessing an adequate standard of living. Non-citizens need a right to have economic rights, that is, a right to belong to an economic community. Ensuring the economic belonging of non-citizens, even when states deny citizenship to them, is essential in order to help protect their other rights. How might non-citizens gain the right to have economic rights? That is, how might they be included in the economic life of a country?

I conclude by discussing the example of refugees in the Global South. Refugees in the Global South, most of whom will remain refugees for over a decade, are denied economic rights such as the right to work and the right to adequate subsistence. They are not permitted to become citizens because they are considered to be living in host countries only temporarily, so citizenship is simply not a way for them to gain access to their economic rights. I argue that we can and should be supporting economic belonging in refugee camps. This may take various forms – temporary work permits, public–private partnerships, etc. – but the goal is ultimately to focus on economic belonging as a way to promote the economic rights of non-citizens rather than keeping them dependent on aid that is largely insufficient. Ultimately, what I show in this chapter is that economic rights, especially those of non-citizens, require well-regulated markets and robust government support, as well as a right to have economic rights, a right that can be envisioned as a right to economic belonging and inclusion.

At the outset, let me address two potential objections to my view and methodology. First, an objection. Why not just focus on citizenship? If non-citizens were granted citizenship, they would then be allowed to participate legally in the economy and receive welfare benefits. Why is economic belonging, independent of citizenship, necessary? In some cases, citizenship is enough for both sets of rights, but not always. As an example, we can look at formerly incarcerated people in the United States, who are often systematically disadvantaged in their ability to access economic rights³. This is a case of citizenship not being sufficient for economic rights to be realized. In other cases, non-citizens are highly unlikely to ever be granted citizenship as a way to access rights. Some refugees may never be granted citizenship in their host countries but are in desperate need of economic rights given that they are likely to remain refugees for years, perhaps decades.⁴ It is imperative to think of ways that we may increase their economic belonging, even when states deny them citizenship. Domestic work permits, regional travel and work schemes, and public–private partnerships between relatively wealthy Western states and states that host refugees are some ways scholars have put forth that would allow refugees to better access their economic rights while they remain refugees⁵ These, in my view, are forms of economic belonging that should be encouraged.

Second, why look at the history of philosophy? I acknowledge that much excellent scholarship has been done around economic rights and their realization in recent decades.⁶ Many of the chapters in this book look at empirical obstacles to the realization of human rights for non-citizens. This chapter aims to supplement those approaches by providing a more abstract view of the issues under consideration in this book. The aim of this chapter is to provide a theoretical way of framing some of the challenges involved with helping non-citizens access their basic economic rights.

The State and the Market: John Locke

John Locke was one of the first philosophers to think about the role of the market (or the economy) in promoting economic rights. Yet this was not the primary question he sought to answer in his main work of political philosophy, The Second Treatise of Government. Here he sought to understand why we should follow the rules of a state without relying on a theistic foundation. To do this, he postulated that we have natural rights, and ultimately, these are what the government must protect if it is to be a legitimate government. Locke ultimately determined that the government must also institute and protect a market in order to protect one of our natural rights, the right to property. As such, Locke is among the first theorists to analyze the relationship between the government and the economy.

Locke theorizes a complex relationship between the “natural rights” to life, liberty, and property that all human beings are born with; the market; and the state. He suggests that a market, and not merely a government, is essential to realizing and protecting our rights. In his view, the economy is essential for our right to subsistence and consequently our right to life. For Locke, our right to subsistence does not come directly from the government, unlike the rights to life and liberty, but from the government protecting private property rights and a flourishing market.

In his Second Treatise on Government, Locke set out to understand why citizens should accept the authority of the state in the absence of a God-given mandate to do so. His way of explaining this is to ask people to imagine what life is like in a “state of nature,” a world that has no government to enforce or create laws.⁷ In the state of nature, he imagines human nature as basically good and theorizes that all human beings have natural rights, including the right to life, liberty, and property. The right to life means that we cannot kill others or ourselves. Our right to liberty means that we are free to do whatever we want as long as we do not infringe on the right to life or liberty of others. Though the state of nature is initially peaceful, occasionally our rights are violated and we are allowed to punish others who violate our natural rights. But Locke thinks we are bad judges of those who hurt us and in punishing are likely to overdo it. As a result, the state of nature will turn into a state of war in which we are never truly free. This motivates us to form a social contract with a government. We agree to give up our right to liberty and our right to enforce the law of nature for the sake of security and protection. He concludes that the basis of government is the consent of the people and a legitimate government is one that rules for the sake of protecting natural rights. A state must protect life and liberty through the creation and enforcement of laws equally across all people.

If our natural rights to life and liberty are protected via the social contract, what about our natural right to property? The existence of private property is a puzzle for Locke. His starting premise is that God gave the earth and its bounty to all people in common. How then can an individual privately own a part of it? If individuals are not able to legitimately own property, this means that a monarch is able to take property and possessions at will and interfere with the private lives of individuals, something Locke is keen to avoid. The key to unlocking the puzzle for Locke is his assertion that our bodies are our property, and when we mix the labor of our bodies with something found in nature, it becomes our private property. This is why property is a natural right; it emerges when what is naturally ours, the labor of our bodies, mixes with nature held in common.

Private property and the right to subsistence go hand in hand, and the right to the latter gives rise to the right to the former. Locke writes, “men, once they are born, have a right to survive and thus a right to food and drink and other things as nature provides for their subsistence.”⁸ In order for nature to provide for our subsistence, we must mix our labor with nature and create private property. The role of the government, then, is not so much to provide our subsistence right, but to protect private property so that we can access subsistence rights through our labor.

But in the state of nature, that is, before a government is established, private property is only legitimate when two conditions apply. First, I can take as my private property only what I can use before it spoils or goes rotten. If I pick more than I can eat, this would deny others a right to their subsistence and infringe on their right to life. Second, there must be “enough and as good” left for others for similar reasons.⁹ That is, even if I could eat everything I pick before it goes bad, I am still required to leave enough for others to subsist on. But Locke is not worried that this will be a problem because he imagines nature as plentiful and boundless: “there is land enough in the world to suffice twice as many people as there are.”¹⁰ Though these conditions place limits on what one can accumulate, ultimately, the invention of money as a system of exchange allows for unlimited accumulation and the creation of inequality.

The primary question Locke set out to answer in the Second Treatise is why we should accept the authority of a state. His answer is that we should give our tacit consent to a government because it is essential for the protection of our natural rights. Put in terms of human rights, the state becomes necessary to protect our civil and political rights, our rights to freedom, security, and autonomy. However, the state is also necessary for our economic rights, including the right to subsistence, insofar as the state is necessary for the protection of the system of currency and private property that allows economic rights to be sustained. “For in governments, the laws regulate the right of property.”¹¹ The state continues to gain its legitimacy through protecting not only life and liberty, but the system of private property and currency known as the market. Our right to life, which requires a right to subsistence, requires the creation and protection of a market.

To see how novel this was for its day, we can compare it to the Greek sense of economics (oikos nomikos). For the Greeks, economics meant household management and survival, what had to be taken care of so a person could be free to leave the private realm and go out into the public.¹² For Locke, the government is needed for the sake of increasing and accumulating wealth for the sake of furthering subsistence. The state then is necessary not only for security (as it was for Thomas Hobbes, for example) or human flourishing (the ancient Greek view), but because it is necessary for capitalism and the accumulation of wealth. This accumulation is now seen as necessary for other basic rights to be met, such as the right to subsistence. Wealth and inequality are now consistent with human rights and, in a sense, a requirement of justice. After Locke, markets become a focus of other political thinkers.

Adam Smith: “Free” Market and Economic Rights

Human rights depend on markets for Adam Smith as well, though for him, the role of the government in helping markets to flourish was more complex than for Locke. For Locke, as we noted earlier, markets were a device that were necessary to preserve our right to property and ultimately to subsistence and life. But for Smith, the market has its own inherent moral value and is not merely a device used to accumulate wealth. Its moral value comes from the fact that free market capitalism, unlike feudalism, allowed individuals to engage with each on the basis of equality. We are all equally buyers or sellers, engaging with each other out of our desire to pursue our own self-interest. Everyone equally has the ability to control their lives in this way. In a market, workers have the freedom to change jobs, organize to demand better conditions and wages, and, in this respect, are able to exercise more agency over their lives. Markets fundamentally further equality in another way as well. When properly regulated, markets can help eliminate the kind of dehumanizing poverty that was created under feudalism and that sustained fundamentally unequal social relations. By generating wealth, people in all sectors of society, including the poor, benefit. This is important for Smith because poverty implies not only a lack of necessities, but a lack of the things needed for dignity and respect. To put it in contemporary terms, human dignity requires the realization of economic rights.

What role should the government play in supporting the moral value of markets, that is, the ability of markets to permit individuals to engage with each on the basis of equality for Smith? He is often seen as the father of laissez-faire economics, the view that the government should stay out of the economy. Smith argued that the “invisible hand,” the unobservable market force that determines the supply and demand of goods, should be allowed to work in peace without interference from the government.¹³ He is associated with the idea that the rational self-interest of individuals, not government policy, should drive the economy. Producers make what people want in adequate quantities, thereby satisfying people’s preferences in an efficient manner. The government’s job, according to this logic, is to stay out of the market and focus on ensuring peace and security. On this view, it would seem that though it must protect civil and political rights, the government has little role to play in furthering the economic rights of its citizens, other than to not get in the way of market forces.

Such an interpretation of Smith, while common, is nonetheless incomplete. For Smith, while it is true that the government should not fix prices, impose tariffs on imported goods, and should limit taxation so that it is not overly burdensome, it does have a role to play in ensuring that a market can deliver the goods needed by people in a relatively fair way. The government must ensure that conditions of fairness prevail so that feudal relations, characterized by the oppression of workers, do not return. As Debra Satz puts it, “Rather than propounding a doctrine of spontaneous order, Smith continually stressed that markets can function as vehicles of freedom and efficiency only under very definite institutional arrangements.”¹⁴ In other words, the market only functions efficiently and is able to achieve the moral goals Smith believes it would – reduction in poverty, equal standing for laborers and management, freedom to change jobs when necessary, dignity of choosing and purchasing goods – when the government sets the conditions for it to do this.

Take labor markets. Smith believed that a free market for labor, where people could sell their labor power in exchange for a wage, was best for laborers as well as factory owners. This is because laborers have freedom to choose their job and leave if they are treated badly, a freedom they sorely lacked under feudalism. But in order for labor markets to produce workers that can negotiate on fair terms, they must be skilled, and in order for them to be skilled, the government must provide free public education. Without education, workers are liable to be exploited by their employers. As such, public education was important to make sure that workers were not dominated by the wealthy. But public education was not only important for the individual worker. It supported all of society because an educated, competitive labor force means a stronger economy. The “free” market would not be free without the provision of public education by the government.

Another example of the government setting conditions for a “free” market can be found regarding wages. It surprises many to note that the father of laissez-faire economics supported a government-set minimum wage but Smith did so for two reasons. First, there is an economic necessity: “A man must always live by his work, and his wages must at least be sufficient to maintain him. They must even upon most occasions be somewhat more; otherwise it would be impossible for him to bring up a family, and the race of such workmen could not last beyond the first generation.”¹⁵ Without a fair minimum wage, there wouldn’t be another generation of workers to keep the economy going. Second, there is a moral reason. Smith is aware that factory owners would drive wages as low as possible and workers, having few other options, would be powerless to challenge this. This would essentially mean a return to feudal relations of dependence and servitude, thus eliminating one of the major advantages of capitalism.

Without a minimum wage, the right to unionize, and public education, there is a risk of creating an impoverished working class. This is bad because of the social exclusion and lack of dignity that comes with poverty:

The poor man, on the contrary, is ashamed of his poverty. He feels that it either places him out of the sight of mankind, or, that if they take any notice of him, they have, however, scarce any fellow-feeling with the misery and distress which he suffers … The poor man goes out and comes in unheeded, and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel.¹⁶

It is imperative, for Smith, that poverty be avoided and the free market structured in such a way that “servants, laborers and workmen,” who make up the majority of people in society, have access to the necessities of life. Indeed, he famously wrote: “No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable.”¹⁷ To reiterate, this is because poverty was closely tied to dignity for Smith. This is why he considered necessities to be “not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without.”¹⁸ Necessities are social in nature and included in his time things such as linen shirts and leather shoes. These are things that in his day were required to be treated with dignity, “the lack of which would be taken to indicate the disgraceful degree of poverty which (it is presumed) nobody can fall into without extreme bad conduct.”¹⁹ For Smith, poverty and a lack of access to economic and subsistence rights constitutes a deep moral harm, one which makes the proper functioning of an economy so important.

In short, for Smith, like Locke, an effective economy is necessary for economic and subsistence rights, the lack of which result in a denial of dignity. The government must make sure workers are educated and not impoverished, two conditions that we later come to recognize as basic rights: the right to education and the right to subsistence. Though Smith thought many economic functions were better left unregulated, he insisted that the market could fulfill its moral role and relieve people of dehumanizing poverty only when the government played a large role in setting the conditions for this to happen.

Friedrich von Hayek: Capitalism and Economic Security

Political economists who come after Smith, such as Friedrich von Hayek in the twentieth century, would argue that Smith was right that market capitalism was the only mode of human exchange that was able to provide basic economic rights. Hayek stressed that in addition to this, markets were the only method of economic distribution that preserved liberty in the sense of freedom of choice, the kind of freedom most valued in liberal societies. For Hayek, like Smith and Locke, though economic rights require market capitalism, the state also has a role to play in ensuring that the market is able to deliver these goods, though he understood this role in a very different way. I emphasize this here because Hayek is often considered one of the fathers of unregulated, free market capitalism. Yet, even he held that the government must play a role in ensuring basic economic rights.

Like Smith, Hayek believed that economic rights are best sustained through a robust economy where the government created conditions of fairness. Competition is the best way to guide economic activity because it does not require coercive intervention by the state. But it does require the state to play a role. Like Smith, he believed that the government has to intervene for the sake of workers and to make competition effective. In his view, the government should intervene to “limit working hours, to require certain sanitary arrangements, to provide an extensive system of social services” as well as “to prevent fraud and deception, to break up monopolies.”²⁰ These government interventions are for the sake of maximizing competition and hence economic efficiency and freedom of choice.

Hayek differs from Locke and Smith, though, in one important way. He acknowledges a limitation of capitalism: Capitalism cannot provide robust economic security. According to Hayek, there are two kinds of economic security that might be achieved through government intervention: limited security, a “minimum sustenance for all,” and absolute security, “a given standard of life.”²¹ The former kind of security would ensure a basic level of subsistence, while the latter would require that the government provide a job and income. He believed that absolute security was incompatible with capitalism, democracy, and freedom because it would require denying the freedom of individuals to choose their profession based on a given wage and the ability to change jobs. However, limited security is compatible with capitalism. He writes, “There is no reason why in a society which has reached the general level of wealth which ours has attained the first kind of security should not be guaranteed to all without endangering general freedom.”²² He includes among the basic goods a state should guarantee food, shelter, and clothing, sufficient to preserve health, along with a system of social insurance against the “common hazards of life.”²³ He saw these as ways of preserving individual freedom. As long as an economy allowed for competition, wages and positions were not fixed, Hayek is happy to declare: “Let a uniform minimum be secured to everybody by all means.”²⁴ In short, for Hayek, though capitalism is the only system able to ensure liberty and freedom of choice, economic rights can still be provided by the government when they fail to emerge from the system.

In short, what we see from this cursory survey of the history of philosophy is an acknowledgment that economic rights require a market, but a market regulated in certain important ways. For the most part the government is less the direct source of economic rights and more the facilitator of the conditions that allow people to realize their economic rights. However, even for the most seminal free-market economists like Smith and Hayek, when markets are not able to provide basic economic rights and economic security, the government must provide them directly.

But what about non-citizens? Of course non-citizens, as much as citizens, require a well-regulated market supplemented by the government, but this is not enough. In many cases, non-citizens, especially those without legal authorization, are not permitted to participate legally in the labor market, and when they participate informally, are exploited and often unable to meet basic economic needs. They are rarely entitled to government welfare benefits that would allow them to access their basic economic rights.

It is for this reason that I turn to the seminal thinker of the rights of non-citizens, Hannah Arendt. For her, human rights could not be grounded in human dignity or our common humanity, as many believed. She insisted that human beings need to belong to some kind of organized political community that is willing to recognize you as a member. She called this the right to have rights. As I show in the next section, we can use her analysis to supplement the views of Locke, Smith, and Hayek discussed earlier. I argue that in addition to a well-regulated market supplemented with government support, non-citizens require a right to have economic rights, or a right to economic belonging.

Arendt on the Right to Have Rights

Hannah Arendt observed that states have a difficult time protecting the human rights of non-citizens, such as refugees and stateless people.²⁵ This was no accident or matter of incompetence. This was due, in her view, to a flaw in the way that human rights were understood. Human rights were supposed to be grounded in our humanity or human nature, but in practice, they turned out to be dependent on citizenship. Without citizenship, states were virtually unable to protect non-citizen residents. Furthermore, international organizations that existed in the first half of the twentieth century were equally unable to provide the kind of rights protection non-citizens needed. People in this situation – no longer able to access the protection of their home state and denied protection in their state of residence – were fundamentally rightless in her view. To be rightless for Arendt means that there is no political institution that can protect you as a matter of right. For her, “the loss of national rights was identical with the loss of human rights.”²⁶ Elsewhere she writes, “the rights of man, supposedly inalienable, proved to be unenforceable – even in countries whose constitutions were based upon them – whenever people appeared who were no longer citizens of any sovereign state.”²⁷ Instead, the rightless are forced to rely on charity:

The prolongation of their lives is due to charity and not to right, for no law exists which could force the nations to feed them, their freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course; and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow.²⁸

In other words, for non-citizens like refugees, human rights cannot be protected as a matter of right but are, at best, granted as a matter of charity.

She called this flaw in our understanding of human rights, that human rights are not grounded in our humanity and cannot be claimed unless people are recognized as part of a political community, one of the cruelest ironies of the twentieth century:

No paradox of contemporary politics is filled with more poignant irony than the discrepancy between the efforts of well-meaning idealists who stubbornly insist on regarding as “inalienable” those human rights, which are enjoyed only by citizens of the most prosperous and civilized countries, and the situation of the rightless themselves.²⁹

To put it bluntly, non-citizens who are not part of a political community effectively do not have human rights.

The reason behind this is not merely structural – that states were not yet equipped with the legal or political tools to enforce human rights for non-citizens. Rather, it is metaphysical and rooted in concepts of human dignity and human nature. Since Locke, theorists have asserted that our natural or human rights are rooted in some feature of our humanity. But in Arendt’s view, human beings do not recognize each other merely as humans or because of some feature that we all share in common. For her, there was a deep hypocrisy in the idea that the human being in and of itself, is valuable, sacred, or worthy of special treatment. In fact, “It seems that a man who is nothing but a man,” writes Arendt, “has lost the very qualities which make it possible for other people to treat him as a fellow-man.”³⁰ Being seen as “nothing but a man” means that you can be easily discarded. Indeed, “the world found nothing sacred in the abstract nakedness of being human.”³¹

If humanity is not sufficient to ground human rights, what is? In her view, non-citizens must be recognized as political agents, that is, as individuals with the power to act, to work together with others in speech and action. This can only happen when they are recognized as belonging to a political community. What the rightless have lost when they lose their citizenship is something more fundamental than their human rights: they have lost “the right to have rights.” She writes:

We become aware of the existence of a right to have rights (and this 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.³²

For Arendt, what the loss of human rights deprives us of is a place in the world that makes opinions significant and actions effective. People outside a political community are deprived, not of the freedom to do what they want but ability to act in meaningful ways with others for a collective purpose. They lose not the right to think what they want but the right to have their opinions considered seriously by others and taken into consideration. In other words, it is not that a person can no longer speak or act, but rather, they are no longer judged according to their words and deeds but instead according to what is “merely given” about their existence – the fact that they are human beings in general. Speech and action are intersubjective, they require the presence and recognition of others.³³ Politically speaking, without the right to have rights, words, opinions, and actions do not “matter,” in the sense that they are not acknowledged or valued by others. As a result, the rightless person does not matter either.

What does it take to realize the right to have rights? For Arendt, this is not just a matter of citizenship. For her what is important is belonging to an “organized community” that is willing to include and recognize you. Citizenship is not the only way to include someone in a political community, though it is certainly the most obvious. An “organized political community” can take many shapes. The sine qua non is that the political community recognizes you via your words and deeds, the features of individual life that make us most human. For Arendt, like Aristotle, what it means to be political or live in a political community is to make decisions through words and persuasion, not through force or violence. It is not merely that we have the ability to speak, but that we can engage in a way of life in which speech makes sense.

As I have argued elsewhere, central to Arendt’s view on human rights is that they are fundamentally established through intersubjective commitment.³⁴ She writes:

We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. 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.³⁵

In short, it is a political decision to create the conditions that allow equality and human rights. She rejects normative foundations and instead insists that human rights are an ongoing struggle that we must commit to over and over again. The first commitment is including those who lack citizenship into some kind of political community.

I am inclined to agree with Arendt that it is belonging in this meaningful way, and not just citizenship, that is so critical for human rights. Though citizenship is important, people need to be recognized as individuals and have the conditions of their agency protected, conditions that allow them to speak and act in meaningful ways. Recognition of identity is as important as the political rights and economic benefits that come with citizenship. While there remains some debate over whether or not she is correct or in fact that international institutions and international law are adequate to protect the human rights of non-citizens in the absence of state protection, many have recognized the importance of Arendt’s argument.³⁶ Political belonging matters for human rights.

What about economic rights? As I mentioned at the beginning of this chapter, Arendt did not seem to have in mind economic rights like the right to work or to basic subsistence. Yet I suggest in the next section that it is possible to extend her argument on the right to have rights to economic rights. There is a parallel between Arendt’s analysis of political rights requiring political belonging with economic rights. I show that economic rights require economic belonging, and this can in some situations be provided more easily than citizenship.

A Right to Economic Belonging?

What would a right to economic belonging entail in the twenty-first century? To answer this question, I examine one of the quintessential groups of non-citizens: refugees. Currently, there are more than 20 million refugees, the majority of whom live informally in cities in the Global South. The rest live in UN-run refugee camps. In both situations, refugees are deprived of many human rights, including their basic economic rights, especially the right to work and the right to an adequate standard of living.³⁷ This is all the more important because of the duration of refugee situations: people are likely to remain refugees for around seventeen years and spend about ten years in a refugee camp.³⁸ Most refugees are not allowed to integrate into their host states and, as such, have limited access to citizenship rights. By most accounts, host countries do not seem interested in granting refugees citizenship at any point in the near future. What could a right to economic belonging mean to non-citizens in a situation like this?

A right to have economic rights would parallel what Arendt says about human rights more broadly: It is a right to belong to some kind of meaningful economic community that can recognize you as a member. To be sure, it is not necessarily a community founded on speech and action, but one which includes individuals as equals. Recall what Arendt says about equality. Equality is not something guaranteed by God, founded on human nature, or something that we can rely on the state or laws to implement.³⁹ It can only be guaranteed through the commitment of individuals, through individual decision. While many will consider this insufficient, it is for her the only ground we can rely on in the realm of human affairs.

One way to think about a right to have economic rights is as economic integration for long-term non-citizen residents.⁴⁰ It is possible to envision economic integration of refugees taking many forms, if states were willing to include non-citizens in their economic communities. For example, most countries that host large numbers of refugees in the Global South do not permit refugees to work legally (Uganda, and more recently, Ethiopia, are notable exceptions). Most, of course, do work without authorization in order to meet their basic economic needs, but because they lack legal protections are exposed to various kinds of exploitation.⁴¹ Western states could leverage their influence to encourage states to grant work permits. But there are even more concrete ways that Western states could aid economic integration.⁴² While the focus on finding a durable solution for refugees, namely, a way that they can gain citizenship either through returning home or being resettled elsewhere, is admirable, it is important to support economic integration in the interim. Doing so would allow refugees a right to have economic rights.

Betts and Collier have argued that Western states should create “Special Economic Zones” in host countries that would provide tax incentives and allow lucrative trade deals with companies that hire refugees. For example, Germany might allow a company in Jordan favorable trading conditions if they hire a certain percentage of refugees. The host states would then gain the tax revenue from these enterprises.⁴³ The Jordan Compact of 2016 is an example of such an approach. It allowed Syrian refugees to work and in return Jordan was given grants, loans, and preferential trading status with the European Union.⁴⁴ Although it had problems in its implementation, it remains an example of a way to encourage economic integration of refugees and provides a model for how the international community can support a right to have economic rights or a right to economic belonging.

In closing, while both citizens and non-citizens need well-regulated markets in order to access their economic rights, they also need a more fundamental right to access such forms of economic inclusion. I have argued that theoretical accounts of what is needed for economic rights must be supplemented with a right to have economic rights, a right that translates in practice to a right to economic inclusion.

10 Human Rights Are Not Enough Understanding Noncitizenship and Noncitizens in Their Own Right

Tendayi Bloom

Introduction

Within liberal theory, human rights are often seen as pre-institutional, and so are not tied, by definition, to any particular state. This differs from citizen rights, which derive from the individual–state relationship. Yet, in practice it is common for individuals to have to prove some citizen or quasi-citizen relationship with a particular state in order to claim their human rights. Expanding citizenship to include more individuals may provide a useful interim measure for some, but it leaves others behind and does not challenge the idea and practice of making access to human rights contingent on citizenship or quasi-citizenship.¹ In this chapter, I suggest that while human rights are important, they are theoretically and practically insufficient to ensure everyone’s basic needs are met.² I argue that to address this, it is crucial to acknowledge that citizenship is not the only form of relationship that can exist between an individual and a state. It is also necessary in both theory and practice to recognize substantive relationships of “noncitizenship” as well as the rights claims that noncitizenship creates.

In this chapter, I offer noncitizen rights not as an alternative but as complementary to both human rights and citizen rights. I argue that noncitizenship is not a negation of citizenship, but another form of individual–state relationship produced by the construction and reconstruction of states. The noncitizen relationship thereby generates obligations that are tied, by definition, to specific states.³ Although human rights are conceptually important and have been useful in asserting rights for people who have struggled to access even the most basic rights in any other way, I argue that it is essential also to acknowledge the institutional, necessarily noncontractual, relationship of noncitizenship and the rights associated with it.

Noncitizenship rights arise from diverse existing philosophical theories for how a state is imbued with legitimacy. For example, state legitimacy may be thought to be founded on its ability to provide security and stability, protect human dignity, promote agency, and ensure coherent and self-governing national communities. States may appear to be justified insofar as they ensure these goods for citizens. However, in fulfilling these goals (to some extent) for some, states and the state system may also actively impair access to these goods for others. The way in which the provision of goods for some people harms those thereby excluded from those goods has implications for state legitimacy. It is, then, not enough to justify the state and the multistate system with respect to those who benefit from them. It is also necessary either to provide a justification for the state with respect to those who must bear the burden of its actions and find ways to live despite it or, at the very least, to explain why this justification is unnecessary.

Thus, I argue that relationships of both citizenship and noncitizenship are fundamental to most conceptions of state construction (whether acknowledged or not). Constructing and maintaining a modern state creates both types of relationship. They are not binary or opposites. Neither is derivative from the other. They represent different modes of relating to the state. This means that it is not possible to understand the state fully without understanding both noncitizenship and citizenship. As such, both must be part of the legitimation story of the state. On this basis, in this chapter I offer an alternative way of thinking about the relationship between rights and the institutions of states and of the multistate system. This framework could in turn drive a rethinking of institutional arrangements in ways that better recognize the rights claims of those who bear the heaviest burden of that system. Noncitizen rights are institutional and particular. They do not challenge, but complement (nonparticular) claims a person has to human rights by virtue of their humanity.

Why Noncitizen Rights

As Jaya Ramji-Nogales observes in Chapter 12, the lists of human rights as presented in existing international treaties represent the outcome of political negotiations among parties with different normative frameworks and interests within particular political contexts.⁴ As she shows, despite the messiness with which they came into being, these treaties have been vital to establishing basic norms and are crucial in understanding how the claiming of human rights functions today. However, they are based on an understanding of human rights that is fundamentally state based.⁵

This is seen in the preamble to the Universal Declaration of Human Rights, where the Declaration is presented as a “common standard of achievement for all peoples and all nations.”⁶ That is, it is not directed toward individuals per se but rather as they are grouped into “peoples” and “nations,” governed by states with the power to protect, grant, or withhold rights. The underlying assumption that human rights are dependent upon formal membership in a particular state (“citizenship”) is pervasive in human rights literature. Most of the classic writers on the universality of human rights sometimes, if not as a matter of course, slip into the language of citizenship when they really mean personhood.

Thus, while human rights are theoretically pre-institutional, they are in practice institutionally derived and usually delivered through citizenship.⁷ Human rights are harder to enforce in the absence of a legally recognized relationship with a state because it is difficult to establish a duty-holder. On the face of it, while negative rights (like the right not to be tortured or arbitrarily killed) most obviously give rise to perfect obligations against everyone (everyone, including every state official, has an obligation not to torture or arbitrarily kill), it is harder to establish this in the case of positive rights (like the right to subsistence or shelter).⁸ However, even negative rights become more difficult to assign if they are associated with an underlying right to be somewhere un-tortured and thus become part of a community.⁹ This means that while human rights might be universal in principle, in practice many people do not have a route to claiming even the most basic rights.

My primary intention here is not to critique human rights, but to put forward a case for the recognition of an additional type of rights. This is needed for two main reasons. First, assumptions about human rights often slip into assumptions about citizen rights. Second, states rely on relationships of noncitizenship for their existence and these relationships, I would argue, affect the state’s legitimacy. In the construction and maintenance of states, relationships of both citizenship and noncitizenship are also constructed. That is, noncitizenship (not to be confused with the hyphenated “non-citizenship,” as the negation of citizenship) is a real and foundational aspect of the modern state, and one which has thus far gone largely unacknowledged.

Some special statuses like refugee status, work visas, or residency have the same form as, but are not quite equivalent to, citizenship. I call these “quasi-citizen” statuses.¹⁰ Although these statuses represent relationships between individuals and a state of which they are not citizens, what is relevant about these relationships is that they demonstrate an individual’s almost-but-not-quite citizenship claim against a particular state. Quasi-citizenship is also related to notions of “denizenship.” Sometimes this term refers to people with quasi-citizen statuses. Sometimes it is used more broadly to include all those who have a strong relationship with a state or with a community in a state, but are unable to access citizenship.¹¹ Like quasi-citizenship, denizenship is also defined in deference to citizenship. This is not the case for noncitizenship.

People with quasi-citizen statuses and those understood as denizens may in practice also experience strong noncitizen relationships with the states in question. This is because their relationships with those states cannot only be understood through citizenship and associated terminology. Citizenship is theorized in a number of ways, for example, as political status or recognition,¹² as bound up in rights and duties,¹³ as membership connected with identity (variously defined)¹⁴ or shared values,¹⁵ as a practice,¹⁶ or, indeed, as some mix of these and other approaches.¹⁷ Overall, theorizations of citizenship assume that somehow the interests of the citizen (or, in this case, the quasi-citizen) and those of the state are affected by each other. There is the idea that the citizen/quasi-citizen gives up power or resources or labor to the state and gets some form of altered power or protection back, or a share in communal goods. Underlying these ideas is the notion that citizens/quasi-citizens live well, or live, in one way or another thanks to the state.

Like citizenship, noncitizenship has no meaning outside the institutional arrangement of states. And like citizenship, noncitizenship is a relationship that gives rise to vulnerabilities and rights claims. Yet, unlike citizenship, which includes by definition some form of mitigation of the vulnerability and power disparity that it creates, noncitizenship does not include this mitigation.

Noncitizenship and citizenship are not mutually dependent or mutually exclusive, but equally fundamental. This means that a person could be in a citizen relationship (including a quasi-citizen relationship) with a particular state and at the same time be in a noncitizen relationship with that same state. For example, people may be recognized as citizens but, because of poverty or discrimination, be unable to make full use of their citizenship in some dimension or dimensions.¹⁸ Such individuals struggle under the power of the state without citizen-mitigation of that power in key dimensions. They are, then, in both a citizen and a noncitizen relationship with that state. Others may be citizens of a state that they do not believe to be legitimate. They, too, can be described as being in both citizen and noncitizen relationships with the same state. This is clearest in the case of colonial states like the modern United States, in which there are populations for whom US citizenship is the only internationally recognized rights-generating status available, who at the same time reject the United States as a colonial power.¹⁹

Noncitizenship is a mode of relationship between an individual and a state in which the individual must live and pursue their ends to some extent despite that state. Though this is understood in a variety of ways, theoretically states aim to promote the wellbeing of citizens. The idea is that insofar as a person relates to a state as a citizen, that person is better off than if there had been no state. I suggest that noncitizenship functions differently. Insofar as a person functions as a noncitizen in relation to a state, the wellbeing of that person is not designed into the construction of that state. Often the implications of this for the person’s life may be minimal, particularly where the person in question also has strong citizen relationships. However, where the noncitizen relationship is the overriding relationship that person has with the state with most power over them, it may present a significant impediment to that person’s life.²⁰ Although some people in a noncitizen relationship may find ways to flourish, they do so despite a state that has significant power over their lives. Indeed, thanks to their noncitizen relationship, some people may be prevented from enjoying even basic goods. This is problematic for any liberal theory of the state that relies for its justification on the idea that the state makes the lives of those affected better.

Noncitizenship is not contingent on citizenship, but looking at citizenship can be helpful in developing a picture of how noncitizenship functions. An individual may be in a citizen relationship with many states at once. They may live in the state of which they are a citizen, or live far away from it. Their citizenship might be all-important or it might not be particularly important to them or to their life. Similarly, individuals can be simultaneously in noncitizen relationships with more than one state, though these relationships may have more or less relevance to their lives. A person can be in a strongly felt noncitizen relationship even with a state that is far away, but they may also be in a noncitizen relationship that is barely felt, even with the state on whose territory they are standing. For example, person G, an employee of an international firm living happily within a closed compound of compatriots in country X may not feel their noncitizen relationship with X very much at all. On the other hand, consider person H, who lives in state Y, downstream from powerful state Z that is syphoning or polluting their primary water source. H may feel their noncitizen relationship with Z strongly despite not being on its territory. In addition, although they are not theoretically dependent on each other, the noncitizen and citizen relationships that an individual has may interact with and affect each other. For example, perhaps G is also a citizen or quasi-citizen of a powerful country that can mitigate G’s relationship with X, while Y is unable to do this for H.

A stronger noncitizen relationship gives rise to stronger claims. Consider the impact of CO₂ emissions and the global warming that results. Some countries produce significant levels of CO₂ emissions.²¹ Everyone who must live well, or even just live, despite this is in a noncitizen relationship with the states concerned. However, some people are not affected as strongly as others. They may experience slightly different weather, but barely notice the effects. They are in a weak noncitizen relationship and this does not, then, give rise to strong claims. However, some people are affected much more strongly. This includes those whose traditional way of life has been made impossible (e.g., because crops no longer grow in the same way or animals can no longer survive).²² It also includes those currently living in Kiribati, which is predicted to be the first state to be entirely submerged by rising sea levels.²³ In these cases, I suggest that affected individuals may have stronger noncitizen claims against polluting states. Even if it is true that the ability to select its citizenry is core to a state’s sovereignty (which I’m not sure it is), recognizing noncitizenship means acknowledging that states have relationships with more individuals than those that they have selected as citizens.

Although there are similarities, noncitizenship functions differently to citizenship. Whereas notions of consent or reciprocity are built into various framings of citizenship, by definition noncitizenship functions differently. No matter your theory of citizenship or of the state, noncitizenship includes an element of the involuntary. This affects the rights that arise as a result. This involuntariness in the noncitizen relationship also applies to the state. In the world of modern states, I argue that even in denying an individual any formal relationship, a state is thereby creating a relationship with that individual, albeit one it would rather not have. And that this relationship gives rise to rights claims.

Noncitizen Rights and Global Justice

Noncitizen rights provide a way to understand how particular rights claims may be allocated to individuals within the multistate system, contributing to the global justice tradition. Global justice thinking challenges state-focused justice thinking as parochial, but it rarely engages with the problem of citizenship directly.²⁴ A dominant branch of global justice theory emphasizes the implications of global interconnectivity, focusing on the material injustices arising from existing arrangements²⁵ or the shaky legitimacy stories of underlying structures.²⁶ I suggest that one way to understand the concerns of global justice is by challenging the presumption that citizenship is the only way of relating to a state or to the system of states.²⁷ Recognizing noncitizen relationships as substantive and rights-generating can help to show that global justice claims are specific and attributable.

I argue that the construction of noncitizenship is inherent in the construction of the state and can be generated by its activities. This means that implications for noncitizens must be part of the state’s legitimacy story, whatever form that legitimacy story takes. Moreover, it is necessary to present that justification within the real and limited global state structure. For example, there is not an infinite array of alternative and welcoming states and citizenries. To be justified, then, the theory of noncitizenism requires that a nationalist acknowledges and addresses how nationalist statehood both constructs noncitizenship and undermines coherent national group politics. A liberal may need to engage with the noncitizen relationship of both those excluded from a particular polity and those rejecting liberalism itself. And so on. The world is messy and each state’s self-justification must take place within this messy system of unfair power structures and contemporary realities affected by painful histories. Noncitizen rights provide a tool to ensure that those who bear the heaviest burdens of existing structures are taken into account in their own right.

My conception of noncitizen rights shares characteristics with some “political” approaches to human rights. That is, according to a political approach to human rights, such rights “confront the ideology of arbitrary power and inherited or exclusive privilege.”²⁸ My suggestion is that human rights as currently construed are also necessarily tied up with the arbitrary power and inherited or exclusive privilege that is the state and indeed the “nation state.” The notion of noncitizen rights explicitly challenges this in a way that human rights cannot. In acknowledging noncitizen rights, one acknowledges that the mechanisms that institute and protect citizen and state power and privilege give rise to obligations toward those who are thereby deprived of their own power and freedom. That is, those who must live despite states and the state system that affect them have claims on those states and on that system. The approach of noncitizen rights differs from political approaches to human rights, then, in deriving from foundational questions about the legitimacy of the state. It argues that noncitizenship is not other or abstract from the state but instead part of what constitutes the state. This underlying difference in rationale also gives rise to a practical difference: noncitizen rights identify particular obligation-holders.

Considering the realities of “statelessness” in this context can illustrate both how noncitizen rights work and how this approach could be used to ground new directions for the protection of rights.²⁹ A person is considered “stateless” according to international law if they are not recognized as a citizen of any country under the operation of its law.³⁰ People excluded from formal citizenship in this way are often unable to assert their claim to even basic human rights. Such individuals can be left without any citizenship because of problems of administration or conflicts between citizenship regimes; it can also be intentionally produced through discriminatory practices.³¹ However it arises, lacking citizenship can make it difficult for those affected to access their human rights either within the state in which they live or within the international community.

Although the noncitizen relationship I defend can pertain between a formal citizen and their state of citizenship, statelessness represents the apotheosis of noncitizenship. The deprivations currently associated with lacking any citizenship provide a limit case for what can happen when, on the one hand, citizenship is both assumed necessary for rights and left up to states to bestow and, on the other hand, no other form of individual–state relationship is recognized as rights generating. When individual states can effectively decide who they want to protect, people can theoretically be – and in reality are – stranded in the world of states without being able to claim any recognized rights-generating relationship anywhere within it, and thus struggling to assert their status as humans.³²

Recognition of noncitizen rights provides a way out of this, which is based, both theoretically and practically, upon how things are today. Among those working to end the rightslessness associated with statelessness, there is a strong tradition of promoting the expansion of access to citizenship or other statuses that would give individuals demonstrable claims against particular states. This is vital and urgent as part of a larger project. It can be seen, for example, in the academic literature³³ and in the United Nations High Commissioner for Refugees campaign to end statelessness by 2024.³⁴ There are many individuals whose lives could be made significantly better if they could just prove some sort of recognized rights-generating connection to the state with the most power over their lives. For these reasons, it is crucial that citizenships are made more accessible and protections against the revocation of citizenship made more secure.

But taken alone, the expansion of citizenship is inadequate for ensuring rights for everyone. It carries three major risks. First, focusing only on expanding citizenship and quasi-citizenship does not provide a solution for those who have no such relationship and have no clear route to obtaining it. That is, it is not enough to say “well, they ought to be citizens” if they are not. Second, it ignores cases where individuals are overwhelmingly affected by a state to which they have no obvious citizen claim. That is, it does not respond to the cases mentioned earlier of foreign occupation or of those affected by a polluting upriver state. Third, this approach does not allow for the political reality of individuals who want to reject the citizenship of the state(s) with overwhelming control over their lives without giving up their basic rights. Those who contest the existing constellation of states must currently do so while those states in fact mediate access to vital goods and even recognition. Instead, there needs to be recognition of noncitizenship and the rights it generates, and eventually a means to access to those rights without the need to demonstrate any citizen or quasi-citizen status.

The terminology and framing of noncitizen rights provide vital tools for thinking about global justice. They force a recognition that global justice considerations are not abstract and the obligations that arise are not general. Instead, a state has specific and institutional obligations toward those people who bear the burden of its existence and of its actions. Acknowledging noncitizens in their own right means acknowledging that a state cannot unilaterally absolve itself of considering a person’s interests and wellbeing. Whereas human rights are general and arise from a person’s humanity, noncitizen rights are particular and arise from a person’s relationship with a particular state or states.

Contemporary Citizenships and Fuzzy Citizen Rights

Citizenship, whether formally recognized or not, comes with certain rights and duties, the content of which is generally based on the legitimacy story of a particular state and the real-world construction of its citizenship. In the past decade or so, some scholars have suggested that there has been a detachment of citizenship from territory, so that citizens are increasingly able to function as citizens from afar.³⁵ This has been discussed mostly with regard to voting, a particularly symbolic citizen right for democratic states, with the creation of emigrant constituencies in national parliaments, for example.³⁶ Other scholars over the same period have suggested that some countries have been gradually detaching territorially based rights from citizenship so that even voting and the right to abode have become tied not to citizenship but instead to sustained regular residence. These two sets of observations could seem at first glance to be in conflict. That is, the traditional rights of citizenship are both decreasingly and increasingly associated with living on the territory of a state, and increasingly and decreasingly associated with formal citizenship. However, understanding how these two observations interrelate (and indeed some theorists make both observations) will be helpful in the discussion of noncitizenship and noncitizen rights.

First, citizenship has never had meaning only within the state to which that citizenship is attached. A particularly iconic symbol of citizenship, the passport, is intrinsically linked to movement across international borders, and so to the space outside the territory of the state of citizenship.³⁷ Meanwhile, states have long offered a range of diplomatic and consular services to citizens outside their territories and are now increasingly extending voting rights to citizens living far away. As of July 2020, 75 percent of countries had had some form of overseas voting in their most recent elections.³⁸ States also offer a range of other social services and forms of assistance through their consulates.

In select cases, citizens of powerful states have even been excused from complying with local justice systems, thanks to consular intercession. Consider, for example, the case of Gillian Gibbons, a British teacher who was facing punishment for blasphemy in Sudan, having named a class teddy bear “Mohamed.”³⁹ Thanks to support from the government of the United Kingdom and intercession from the President of Sudan, Gibbons was eventually released and returned to the United Kingdom.⁴⁰ This suggests that in some cases citizens are able to access the rights of citizenship from afar and even be protected by the laws of their country of citizenship outside its territory, affecting the nature of their relationship with the countries on whose territories they stand. For the most part, the recognized rights of citizens qua citizens outside their states of citizenship are discretionary and dependent upon the interests and relative power of the states involved. In this case, Gibbons’ citizenship of the United Kingdom helped to neutralize her noncitizenship in relation to Sudan.

Meanwhile, some countries have specific forms of overseas citizenship that do not carry these benefits. Consider the United Kingdom, which intervened on behalf of Gillian Gibbons. During the process of disentangling itself from an empire (and so from a contiguous political space) that spanned a large part of the globe, the United Kingdom has constructed a variety of citizenships. This includes citizenships that do not provide the right to live in the country of citizenship, or which include specific constraints on children inheriting citizenship from their parents. These two elements came to a head in the case of the grandchildren of people displaced from the Chagos Islands. In 1965, the United States expressed a desire to build a military base on Diego Garcia, the main island of the Chagos Islands. At the time, the Chagos Islands was part of Mauritius, which was under UK control. The United Kingdom separated Chagos from Mauritius to create the British Indian Ocean Territory (BIOT), which was then lent to the United States for its military base. The people living in Diego Garcia were forcibly relocated, mostly to other parts of Mauritius. They had citizenship of the British Indian Ocean Territory but were not allowed to live in it. In 1968, Mauritius declared Independence from Britain.⁴¹ In 2002, an Act of the UK Parliament (along with some specific amendments) meant that those who had been displaced from the Chagos Islands were eligible for UK citizenship. Their children were also eligible for UK citizenship. Their grandchildren were not.⁴² As a result, Chagossians in exile potentially had citizenship of a country that they could not visit and citizenship of another that they could not pass on. Not only did these citizenships not neutralize noncitizenships in relation to other countries, they also did not neutralize noncitizenships in relation to the United Kingdom.

Alongside the literature on extraterritorial citizenship is a discourse relating to an increasing importance of residency over citizenship within a state. For example, scholars presenting what they refer to as “post-national” citizenship emphasize that an individual has rights and duties in relation to the state where they live because they are a resident, they engage in its daily life, and they are affected by its political structures.⁴³ Although some of these texts offer empirical claims, for the most part their claims are normative. The argument is that individuals should be able to relate to a state in this way, even if currently they cannot. Where rights are accessible in this way, they are mostly social or civil (access to health care, for example). Insofar as there are political rights associated with regular residence, they are mostly only on the local level (i.e., voting in local elections but not general elections or referenda). In addition, these rights of residents sit against a backdrop of liminality, since continued “regular” residence itself is not a given. They are citizen-like or quasi-citizen claims in a context where that relationship is contested or vulnerable.

Most residents in most states are citizens.⁴⁴ For those that are not, in order to be a “regular” resident a person must have some sort of special status that might derive from a work visa, refugee status, student visa, multilateral or bilateral agreement, or some other arrangement approved by the rights-granting state. That is, a quasi-citizen status. What is key is that these statuses approximate citizenship. This means that, while regular residence is important to rights and is often a precursor to citizenship,⁴⁵ for our purposes, it should not really be seen as replacing citizenship as the primary locus for rights claiming. These alternative routes to rights claims have gained more relevance, but only insofar as they represent some form of quasi-citizenship.

The changing relationship between residence and citizenship is tied also to a global shift in approaches to dual and plural formal citizenship. Arguably, this also represents a formalization of some aspects of the transnationalism identified in the 1990s,⁴⁶ as well as an attempt to control the messy and mixed feelings that many individuals, in fact, have of citizenship.⁴⁷ Dual and plural formal citizenship have long been seen as deviant and anomalous.⁴⁸ It was assumed that a person could not simultaneously have full allegiance to more than one country. The reality of international migration, the need for gender equality in nationality law, and the desire of states to engage with their diasporas have all contributed to a context in which dual and plural citizenships are now accepted by many states and are normalized on the international level, though this comes alongside localized concerns regarding the loyalty that can be expected from dual or plural citizens.

As shown, relevant also is the global context in which the relationships between states affect the nature of their citizenships and noncitizenships and the rights associated with them. This means that even if everyone in the international community were a formal citizen of a recognized state, this would still not be enough to ensure human rights for all. There are three main reasons.

First, in most states many formal citizens experience noncitizen relationships, in some dimensions at least, with respect to their states of citizenship. This may result from overt discrimination or from material poverty and other inequalities that make it difficult for individuals to assert their citizenship.

The particularity of these individual–state relationships can be seen through the illustrative case of Zambians in relation to other countries in the context of extracting Zambian copper. Since 2008, the government of Zambia has led a series of tax reforms to try to enforce higher tax burdens on copper mining companies operating in the country. While tax money received as a result of these reforms is higher than it had previously been, significant profits from copper extraction in Zambia are made and remain outside the country.⁴⁹ During the 1990s and early 2000s, and on the basis of recommendations from German and UK companies, Zambia’s extraction industry was privatized and its taxation rates reduced.⁵⁰ This period also saw a 24 percent rise in unemployment and a decrease in Zambia’s position in the Human Development Index from 110th in 1990 to 166th in 2005. This led to a period of rethinking, including the Zambian civil society report “For whom the windfalls.”⁵¹ The report expressed concern that Zambia’s resources, and so also its ability to meet the needs of its citizens, were being lost to foreign companies. I propose that this put each Zambian citizen also into a relationship with the countries from which those companies operate and into which the wealth was being funneled. This relationship was one of noncitizenship. It is particular and it is rights generating.

Third, the language of noncitizenship helps to illustrate how citizenship itself can constrain rights. This is seen particularly clearly in colonial and post-colonial contexts. For example, while there are those in post-Soviet space who struggle for citizenship, others struggle against particular citizenships or cannot explain their relationships with existing states through citizenship alone.⁵² Consider, for example, citizenship dynamics in the Crimea. Most recently, the Crimea was an autonomous region of Ukraine until annexation by the Russian Federation in Spring 2014. Although Crimeans were forcibly made Russian citizens, some retained their Ukrainian citizenship. Officially, Ukraine does not allow dual citizenship (though its Citizenship Law includes a provision for those who have not taken foreign citizenship voluntarily). This has put individuals living in the Crimea at risk of losing their Ukrainian citizenship, even if against their wishes. Some in the region reject both Ukrainian and Russian citizenships in favor of citizenship of unilaterally declared republics such as Donbass and Donetsk, which are not internationally recognized, while others make strategic use of different citizenships in different contexts.⁵³ The terminology of noncitizenship alongside that of citizenship provides a more nuanced way to explain these complex relationships.

Noncitizenship can help us to understand aspects of the international system that cannot be easily described using the language of citizenship and of human rights alone. However, while noncitizen rights are a distinct institutional category of rights, in the world as it is, noncitizen relationships and citizen relationships interact and affect each other. It is the existing states that are able to grant or withhold citizenship from individuals. And it is the existing states that are able to recognize or not recognize the citizenship-granting statehood of other political entities. This means that a system of rights that is purely citizen based reinforces existing structures of international power and control and stifles dissent. Noncitizenship, then, and noncitizen rights are also needed in order to liberate human rights and citizenship from the risk of being coercive.

Conclusion: Understanding Noncitizenship and Noncitizens in Their Own Right

Human rights and citizen rights play important theoretical and practical roles in ensuring basic needs are met and protected in the world as it is. But they are not enough. This is because they fail to represent an important type of individual–state relationship that has largely been left unacknowledged. Noncitizenship is a relationship between an individual and a state that arises necessarily in the construction of the modern state in a world of states. It arises when people find themselves living – and flourishing – despite the state. This is theoretically important. It makes it possible to recognize a crucial dimension of how people relate to states, and to acknowledge the burden that this places upon them. It is also practically essential. It provides the terminology necessary for challenging the dominance of citizenship in framing basic rights and explaining that a relationship of contest between an individual and a state is still a relationship in its own right

Recognizing this relationship and its role in the construction of the state challenges state legitimation stories. It problematizes the idea of a multistate system constructed for those people who states wish to include in it, on terms set by states. It is necessary either to justify the state to people in noncitizen relationships with it or to defend why this justification is not needed. I suggest that this legitimacy challenge generates particular rights claims against states and can help to drive a framing of global justice that is based in relationships that are often obscured. The language of noncitizenship and noncitizen rights helps to show how an individual could have particular claims against a state even when either that state or the individual rejects any relationship. It also makes it possible to examine how citizenships and noncitizenships interact and the implications of this for rights. Finally, it provides a vehicle for considering the implications for rights when citizenship itself is seen not as emancipatory but as a constraint. A theory of noncitizen rights advocates holding states accountable to those who bear the greatest burden for their existence, without requiring those affected to contort themselves into citizen or quasi-citizen relationships. It provides a way to understand noncitizens in their own right.

11 Uncertainty and Educational Mismatch Schooling and Life Pursuits in Contexts of Illegalization

Susan Bibler Coutin

This chapter draws on the literature on liminality, uncertainty, and precarity to analyze the complicated mismatches between the lives of immigrants and the forms of deservingness produced through US immigration enforcement initiatives. Since passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, the mechanisms through which undocumented noncitizens could regularize their status in the United States have been highly restricted.¹ Access to asylum has been increasingly curtailed, presence bars have made it hard for noncitizens to qualify for family visa petitions, and hyper-criminalization, over-policing, and stiffened border enforcement have created records that disqualify many from consideration.² Avenues for relief have increasingly taken highly liminal forms, such as Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA), which have to be renewed at regular intervals, confer only limited rights (such as work authorization and relief from deportation), and are vulnerable to being overturned, as the Trump administration attempted to do.³ In such an atmosphere of heightened enforcement and limited opportunity, “deservingness” has been defined in a constrained fashion that privileges sacrifice, achievement, personal responsibility, and law abidingness. This limited definition defines “deservingness” as an individual character trait, ignoring the structural conditions that shape whether or not individuals are able to do things like excel in school, graduate, work, advance in careers, and avoid behaviors that could lead to accusations of criminality. The very circumstance of being undocumented may compel individuals to use false Social Security numbers, work without authorization, drive without licenses, and reenter the country to join family members.⁴ Immigration law thus makes otherwise legitimate activities – working, studying, traveling, being with family – appear as markers of undeservingness. Legal definitions of “deservingness” are therefore misaligned with the realities of living in the United States without authorization.

Aligning definitions of deservingness with the realities of immigrants’ lives is key to ensuring respect for human rights. The most inclusive basis for granting people rights in international law is humanity.⁵ Basic human rights, such as the right to life, liberty, equality, and freedom from persecution are to be enjoyed by “all members of the human family.”⁶ Such ideals inspired the immigrant rights’ slogan “no human being is illegal.”⁷ In contrast to such notions of universality, political membership has been seen as a basis for limiting rights. Drawing on the theory that there is a social contract between citizens and state,⁸ notions of political membership limit specified political and civil rights to those who are party to this contract. Grounding rights in notions of political membership, rather than humanity, draws distinctions between those who are and are not members of a given society. Alongside theories of membership, however, are understandings of disadvantage, according to which certain vulnerable groups are considered deserving of rights regardless of their formal citizenship status. Such groups include women, children, refugees, workers, the indigenous, and racial and ethnic minorities.⁹ These groups are thought to have unique needs that cannot be adequately captured in universal declarations.

The gaps between universal human rights, bounded political membership, and particular disadvantage make educational pursuits particularly fraught for undocumented students, as individualized notions of deservingness collide with the forms of exclusion to which they and their families are subjected. In the United States, the Supreme Court decision in Plyler v. Doe established that public education cannot be denied to K-12 students on the basis of immigration status.¹⁰ As a result, schooling is something of a protected space and life stage in which the impacts of being undocumented, or of having undocumented relatives, are muted.¹¹ Yet in other ways, schooling is one of the arenas where the contradiction between legal measures of deservingness and the structural conditions that limit opportunity play out. Children who are undocumented or who have relatives who are at risk of deportation experience anxiety,¹² material deprivation, and restrictions on travel, all of which can influence their school experiences.¹³ Furthermore, as undocumented children reach adolescence, they “awaken to a nightmare”¹⁴ in which driver’s licenses, identity documents, work authorization, and the financial resources needed to attend college are often beyond their reach. Some states, such as California, have attempted to ease these burdens, and DACA has helped, but DACA’s future is highly uncertain, and state and local measures do not go far enough. Navigating schooling in a context of illegalization can therefore be like walking through a minefield.

To explore how this highly punitive environment shapes educational pursuits, this chapter draws on two sets of data: (1) interviews that the author conducted between 2006 and 2010 with 50 1.5 generation young adults, that is, immigrants who were born in El Salvador, immigrated to the United States as children, and were raised in Southern California, thus falling between the first generation (born outside of the country) and the second generation (born in the United States), and (2) interviews that the author and colleagues carried out between 2014 and 2017 with Latinx and Asian and Pacific Islander individuals who either had DACA or who had hoped to apply for deferred action under the Deferred Action for Parents of Americans program that the Obama administration announced in 2014 but that never went into effect. The 2006–2010 interviews with Salvadoran 1.5 generation youth in Southern California focused on interviewees’ experiences of the Salvadoran civil war, journeys to the United States, childhoods in Southern California, family circumstances, identities, return trips to El Salvador if any, transitions to adulthood, legal histories, and future aspirations. Educational experiences were a key focus in these interviewees’ discussions of their childhoods, current circumstances, and goals. Interview results therefore indicate how immigration law shaped schooling in the period before DACA. The interviews that were carried out in 2014–2017 in the post-DACA era also included accounts of schooling and of educational goals, particularly in the case of interviewees who had or hoped to qualify for DACA. Pseudonyms have been used for all interviewees. Together, this interview material reveals the ways that racialization, illegalization, and precarization shape educational opportunities, even in a state that welcomes immigrants, such that the educational achievements that might be considered hallmarks of deservingness are placed beyond the reach of many, regardless of their individual talents or abilities. This material also reveals the resourceful strategies through which interviewees, their families, and some educators pushed back against these forces to attain educational goals.

Theory regarding illegalization, precarity, and uncertainty suggests that defining deservingness as an aspect of individual identity ignores the structural forces that shape individuals’ lives. Scholars have examined illegalization in order to emphasize that individuals, families, and communities are not intrinsically “illegal” and therefore “undeserving”; rather, they are constituted as such by state and other actors as an ongoing part of daily life.¹⁵ Furthermore, the illegalization literature suggests there is not a dichotomy between being undocumented and having status, as there are gradations of partial and temporary statuses.¹⁶ This sort of differentiation in status has implications for educational opportunities, as it influences travel, financial resources, mental health, material conditions, and ability to plan. Likewise, educational institutions can play a role in furthering or mitigating this process. Illegalization is closely connected to precarity, which has been defined as “that politically induced condition in which certain populations suffer from failing social and economic networks of support and become differentially exposed to injury, violence, and death.”¹⁷ Immigration status contributes to precarity by limiting access to employment, healthcare, family, safety, and more. The condition of precarity extends across multiple contexts, thus creating commonalities between noncitizens and other marginalized and racialized groups.¹⁸ Precarity impacts access to education, as well as the material conditions within which schooling occurs, making it difficult for youth to be the “high achievers” that are lauded in narratives about “DREAMers” who are cheerleaders or high school valedictorians but are also undocumented. Lastly, uncertainty is a key facet of both illegalization and precarity, given that immigration law and policy change over time, temporary statuses are vulnerable to political exigencies, and pathways to regularization may be blocked or shrouded.¹⁹ Uncertainty makes it hard for noncitizens to plan for the future, understand the rules to which they are subject, and know whether adverse records about them have been created. Planning and record-keeping are key to educational pursuits, so again, schooling can be impacted by and in turn shape individuals’ experiences of uncertainty in ways that make educational achievement difficult to demonstrate.

Education and Illegalization Pre-DACA

Interviews conducted between 2006 and 2010 with 1.5 generation Salvadoran immigrants in Southern California shed light on the relationships between illegalization, precarity, uncertainty, and education during the period before the DACA program recognized graduation from US high schools as a marker of deservingness. While a few of these interviewees reported being impacted due to immigration status, for the most part it was illegalization and precarization more generally that affected their school experiences, rather than legal status in particular. Illegalization impacted their parents’ employment opportunities, which in turn led their families to live in neighborhoods characterized by poverty, racial tensions, crime, and pressures to join gangs. In this context, instead of being places of safety, schools became one place where children experienced violence and discrimination. Moreover, all too often, interviewees reported school officials and policies that exacerbated educational disadvantage by, for example, treating language skills as a measure of academic ability or requiring students to complete grade levels that they had already completed in their country of origin. Sometimes, however, school programs, counselors, or teachers intervened to mitigate illegalization, precarization, and educational disadvantage, such as by enrolling children in gifted classes, helping them graduate, or steering them toward college. Children and their families also resisted disadvantage through self-advocacy and developing support networks. The transition to college or the workplace was nonetheless challenging to these young people. In California, Assembly Bill 540 gave undocumented high school graduates the right to pay in-state tuition,²⁰ but the inability to qualify for federal financial aid or work legally placed college and therefore educational achievements out of reach for many. For those who managed to attend college anyway, universities provided the opportunity to organize new programs to overcome educational disadvantage.

Interview material suggested that, even though undocumented and immigrant children had the legal right to attend public schools, these institutions were not isolated from the broader social pressures that impacted children’s families and neighborhoods. Interviews were replete with references to poverty, gangs, and violence. Adelmo Ariel Umanzor, whose family fled El Salvador during the civil war, observed, “If you were Salvadorian you were [presumed to be] like straight-MS. You know and nobody liked MS or – That kind of created a lot of like conflict … between students you know. Because that’s why I didn’t go to Belmont High School. I went to Pacific Palisades. Because in Belmont High School, gee, they were like all kinds of gangs in there.” Jessica Morales explained how attending a middle school in a low-income neighborhood impacted her:

That [going to Virgil Middle School] was probably the worst experience I’ve had in any of my schooling …. For some time I felt like somewhat ashamed of being Latino. I really did, because the kids were just trouble-makers. They were tagging. They were, you know, in gangs. And here I am as goody-two-shoes and I have to adapt to that very quickly. So, in 6th grade I didn’t really have too many friends. I really didn’t. There was a lot of girls that didn’t like me and loved to pick on me because I was … an easy target. By 7th grade, similar to my brother, I got tired of being a target, so then I started getting into trouble. I started dressing more like them.

Note the way that Jessica equated “trouble-making” with race and ethnicity, while Adelmo commented that merely being Salvadoran gave him a presumed gang affiliation. In fact, racial and ethnic tensions were pervasive in the public schools attended by interviewees. Marta Dominguez reported that her school actually experienced riots: “I was teased a lot by Mexicans …. Within Latinos we are so diverse that Mexicans kids were always being like ‘Oh you Salvi’ and you know, this and that. So there was a lot, like, so much more riots at school because of that.” Thus racialization impacted students’ school experiences in ways that made it difficult for them to excel.

Instead of being neutral institutions, school policies and personnel in some ways contributed to these tensions and forms of marginalization. Salvadoran children who were viewed as troublemakers, for example, were suspended or otherwise disciplined, thus making them appear undeserving, often for reasons beyond their control. Cesar Quintanilla, the United States-born son of Salvadoran parents, reported that he was deeply distrusted by his English teacher:

I was bleeding, because I used to get bloody noses all the time. And I used to be bleeding. And then like, I’m already there holding my nose, and I was like, “Mr. [name deleted], I’m bleeding. I need to go to the bathroom.” And he’s like, “Cesar, stop it.” And I’m here bleeding, and holding my nose, and I’m like, “Mr. [name deleted], I’m bleeding, look, there’s blood.” And he’s like, “Cesar, stop it!” And I just couldn’t take it. I just left! I just went to the bathroom. I think I got in trouble for that. And it was just funny how he thought I was lying, with blood on my hands, you know?

Another common practice, according to interviewees, was placing children in grades that they had already completed, thus making them stay in school more years than necessary. Marta Dominguez, who eventually became a staff person at a four-year college, recalled:

Math, that’s all they gave me. No other thing because, I guess, because I couldn’t speak the language. And, then they would, I thought it was kind of weird because I wasn’t, they put me back in third grade when I came. So it was kind of upsetting because I wanted to go to fourth grade. And, uhm, they gave me a lot of like easy stuff. Like, uhm, multiplication and divisions with just one digit. And, I was already doing fractions in El Salvador.

Numerous interviewees felt that they were evaluated on the basis of their language skills or immigrant status instead of their academic qualifications. Ernesto Duran complained that he was inexplicably held back for a year in elementary school, Bayardo Morazan stated that a high school counselor wanted to put him in remedial classes rather than honors due to his accent, and Sandra Mejillas went from testing into a gifted program at one school to being placed in English-as-a-second language (ESL) classes in another. Several interviewees reported that even though they eventually performed well at four-year institutions, their high school counselors had steered them toward community college or military enlistment. They saw such “guidance” as racially biased.

In the worst-case scenario, illegalization, precarization, and school policies that disadvantaged Salvadoran children resulted in dropping out of school, an outcome that contrasted with the DREAMer narrative of high-achieving immigrant youth. Manuel Cañas had this experience. During the second semester of 9th grade, Manuel’s mother was working the night shift and needed Manuel to watch his siblings during the day so that she could sleep. He tried to go to night school to complete his high school degree, but felt the pressure to earn money. So, he accepted a 9th grade diploma and in addition to caring for his siblings and cousins, he did piece work at a factory, worked in a restaurant, and, at the time of our interview, had become a baggage handler at the airport, a job he was able to get due to having work authorization as a TPS recipient. Definitions of deservingness that emphasized educational achievement were misaligned with the pressures of Manuel’s life.

While schools frequently contributed to or failed to protect Salvadoran children from marginalization, there were instances when schools, programs, teachers, or counselors supported interviewees in ways that mitigated the impacts of precarization and illegalization. Some students attended schools that had more resources. Juana Rocio related, “I think it was an advantage coming at such an early age, 3 years old … I was like Sponge Bobs, sponging everything that I learned,” while Verónica Reina recalled happily that her parents gave her “the perfect childhood experience.” As a recent arrival, Marta Dominguez perceived her school as a place of abundance: “l loved the school because it had like, all these wonderful things. And, toys, and letters like, really cute decorated. I was, like, I was amazed with the school. And, then the fact that they fed us [laughs]. That was just like, new to me.” Some interviewees singled out a teacher who had made a difference in their lives. Mónica Ramirez spoke of a teacher who “saw me like a daughter and I still remember her,” while Adelmo Ariel Umanzor appreciated teachers who noticed that he was from El Salvador and gave him books about the Salvadoran Civil War. Saul Henriquez recognized a counselor who believed in him. She told him, “you’re doing B- work. This is not you. You can do this [other] type of work.” Interviewees also described teachers who fought for them, getting them transferred into honors classes or college-bound programs. Cesar, who had been mistrusted by his English teacher, attributed his success in college at least partially to a mentorship program. As a fourteen- or fifteen-year-old, Cesar’s mentor would “take me to places, to events, to college trips. He would just take me anywhere, anywhere he would take me, I used to love it, because it was a place that I wouldn’t go if I would not have met him. So to the museum, to the opera, to the orchestra.” Such individuals and programs helped to counter educational disadvantage wrought by poverty. But interviewees seemed to see them as exceptions, “rare to find a teacher like that,” as Mónica Ramirez put it.

Interviewees also resisted educational marginalization, primarily through workarounds, self-advocacy, family and peer support networks, and “passing.” Jessica Morales was slated to attend an inner-city high school where her older brother had gotten into trouble. Jessica persuaded her parents to use someone else’s address so that she could enroll in a middle-class high school in the San Fernando Valley. Graciela Nuñez successfully fought to be transferred to honors classes. She related:

And then I got to high school …. I remember I had integrated science and I was really mad because I really wanted Biology and then Chemistry, and Physics – the sciences separate. And I told the counselor and then the counselor was like, “No we can’t do that.” And then I talked to like the head counselor and then she said, “No, we can’t pull you out for some reason.” And then she said, “If you do really well, we could put you in Physics next year.” So then I did really well that year and that’s how I got to go into the Honors Program at the school.

Peers and family were also sources of support. Araceli Muñoz’s grandmother sent a grammar book from El Salvador so that Araceli would not forget Spanish, Manuel Cañas made friends who helped him acclimate to elementary school, and Walter Olivar’s friends encouraged him to make his first public speech in English, despite having an accent: “Come on you can do it. Walter, you can do it. Come on go, you can do it.” Lastly, some interviewees reported that they “passed” as Mexicans, to avoid being stigmatized as Salvadorans, and as citizens, to avoid being accused of illegality. Marta Dominguez said, “There was a lot of, like, Salvadorans, when I was growing up, because of that tension that there was in school, the majority were Mexican, they would deny who they were so they wouldn’t get, like, beat up. Or picked on. Yeah, it was sad because we had to, like, pretend to be Mexican.” Likewise, Jessica Morales recalled being ashamed to be a permanent resident rather than a citizen. She stated, “I remember when I was in junior high I think somebody was talking about being a citizen and they said, ‘Oh, but you were born here right? You’re a citizen?’ And I lied and I said, ‘Yes.’” These forms of resistance – workarounds, self-advocacy, social support networks, and passing – helped individuals navigate public schools in ways that made them appear deserving, but did not actually change oppressive structures that produced education disadvantage.

Unlike K-12 education, where legal status did not pose a barrier to enrollment, transitioning to college was significantly impacted by legal status, as has been well documented.²¹ In 2001, California approved Assembly Bill 540 (AB-540), which allowed undocumented high school graduates to pay in-state tuition at public colleges and universities,²² so during the 2006–2010 period in which these interviews were conducted, interviewees were eligible for this more affordable tuition rate. Nonetheless, lack of work authorization, the inability to drive legally, and ineligibility for financial aid placed college beyond the reach of many. Beatriz Gonzalez, an activist in the California Dream Network, described her own experience:

And so, end of junior year, I wanted to go to college, I got to visit [UC] Davis. So I remember feeling, “No! I can’t just not go to college. That’s not an option. And I don’t want to go to a community college” because I had like a 4.1 GPA, and was like, “No, I want to go to UC.”

So AB-540 became law, and I applied for every possible scholarship that I could get ahold of. At the end of my senior year, I had fundraised $500. And so, during that time, UC Davis, the quarter system, so it’s three quarters and it was $1450 per quarter. So it was like, I did the math and “well, I have enough money for my tuition.” And so I talked to my parents, and I said, “You know, can you guys help me pay for my rent?” And they said, “if it’s something around $250. No more than $300 a month, then we can help you. If not, then you should really consider staying here.” And I said, “No, no. I’ll find out.”

And so it worked. I went up there and did some homework and found a place to share for that amount. Got in the newspaper and found a job as a caregiver for a quadriplegic woman. And so that’s how I was able to start in Davis. Because I knew I had enough money for my tuition.

And so I went there all my four years, and I, every year, was that same pressure. So again, it’s like, I guess too the common thread or theme is that to be undocumented means to have to walk the unconventional path. And so, so you know, while I remember everybody feeling like, “Yes! Finals are over!” And like, “let’s relax!” I remember thinking, “Yes! Finals are over! Oh, gosh” you know, “I gotta keep on searching, I gotta keep on asking, “where can I get money?”

While Beatriz succeeded in graduating from UC Davis, her college experience was shaped by continual worry about financial resources. Deservingness, in her case, was not an individual attribute but a product of circumstances. Such worries were shared by other interviewees who were frustrated by lack of immigration reform. As a TPS holder who had employment authorization, Tomás Marino-Vargas was working his way through college. But delays in government renewals of TPS put his job at risk. Although he was able to get a sticker showing that the US government had extended his expired Employment Authorization Document (EAD), Tomás’ employer doubted the validity of this document. Only when the new EAD, valid for eighteen months, arrived, was his employer satisfied. Meanwhile, these difficulties had caused Tomás to withdraw from school. Consumed by uncertainty, Tomás related:

I’ve put my life, like, on hold, you know, to getting married and all that because I don’t want to have that whole double issue of dealing with that until I get at least myself – my affairs straightened out …. School, um – I kinda felt – I felt cheated by the system because so many people get money, you know, to go to school and – and um, for their expenses, that when it came to me, it’s like, hey, you know, I’m trying to do the same, but because I’m not here legally, I guess you could say, um, I have no rights to that.

One way that students fought against uncertainty was by organizing for policy change so that definitions of deservingness would better align with their lives. Schools were a place that afforded students the opportunity to form clubs and organizations, launch campaigns to pass the federal Dream Act, which would have created a pathway to legal status and eventually citizenship for undocumented students. As well, at the state level, students successfully fought for passage of the California Dream Act, which gave them access to state financial aid. In high schools, students formed AB-540 clubs, where they came together with other students who were also undocumented. Marisol Sanabria explained how she organized one such club at her high school, and then continued her activism in college. After revealing her undocumented status to a teacher to explain why she could not participate in a field trip to Washington, DC, he told her:

“Tomorrow we’re going to have meeting and you’re going to start a club, you know. Not only for immigrants, but for everybody. And you’re going to fundraise to have scholarship for you – for you guys, you know.” And that’s how I became open. And I started going to places, talking to people. And … now in college we have come to my high school from Cal Poly Pomona trying to make people apply to our school. And then I’m there just talking to people like – and we have a section for AB-540, and we tell them, “You know what, you’re not alone …. The government can’t help you financially, but there are people like out there [who can], you know.”

Students also used college campuses as a platform for organizing. At California State University, Los Angeles, several Salvadoran students formed a student club known as USEU, the Unión Salvadoreña de Estudiantes Universitarios, or the Salvadoran University Student Union. USEU members sought to counter popular images of Salvadorans as gang members by highlighting their own status as university students. In addition, they worked with local high schools to educate undocumented and other students about opportunities to attend college. Cesar Quintanilla, who helped found this group, explained, “What we’re trying to do with this organization, we’re trying to show, like, we’re trying to go out to the community and go out to the high schools, and not just our Salvadoran youth, we’re going to focus on them, but not just them, just show our history, why we’re here. Nobody tells us that.” Salvadoran youth also promoted social change through their own research, scholarship, and creative work. Through organizing, activism, and becoming scholars in their own right, students helped to lay the groundwork for DACA.

Illegalization, Precarization, and Uncertainty Post-DACA

Interviews conducted between 2014 and 2017 with individuals who had or hoped to apply for deferred action suggest that the combination of DACA and state and local integrative policies helped to mitigate but did not entirely overcome the impacts of illegalization and precarity. Students had more opportunities for academic success in the post-DACA era, but again, structural conditions shaped their lives in ways that deviated from narratives that treated educational achievement as an individual attribute. Unlike the 2006–2010 interviews with 1.5 and second-generation Salvadoran youth whose families immigrated to the United States during the Salvadoran Civil War, the 2014–2017 interviews were conducted with members of two generations: those who potentially could have applied for deferred action through DAPA, had it gone into effect, and college-age students who had DACA or potentially could have applied. The former group tended to be over thirty-five (many were parents), and the latter group tended to be in their twenties. Moreover, the 2014–2017 interview participants were from a range of countries, most commonly Mexico, but also Peru, Central America, Korea, Ethiopia, and China. Although the younger generation of 2014–2017 interviewees had entered the US educational system later than the 2006–2010 interviewees, there were striking similarities in their experiences. Many faced challenges acclimating to US schools when they were young and many also went through the traumatic adolescent experience of discovering that they were undocumented and therefore faced curtailed educational opportunities. For some, DACA and California state policies provided the means of pursuing college, often at high personal sacrifice, but the illegalization and precarization to which their families were subjected still created financial challenges. Educational institutions therefore helped to mitigate but could not overcome the impacts of illegalization. In the best-case scenario, schools, colleges, and universities were places of advocacy and empowerment, but in the worst-case scenario, educational institutions denied opportunities, thus exacerbating illegalization and precarization. Moreover, continued uncertainty over DACA, the intensification of enforcement, and an increase in overt xenophobia and racism made many interviewees anxious about their future prospects.

The early school experiences of the post-DACA interview group were not unlike those of pre-DACA interviewees. Mireya, a college student in her twenties at the time of our interview, was one of the few who described being directly impacted by immigration law as young children. Mireya had wanted to learn the violin, but her mother, who was undocumented, was unwilling to sign the form for her to check out an instrument. Mireya lamented, “I’ve always thought that, had I been given the opportunity to do that [learn violin], I would have been a composer …. So that educational goal went flying away.” Many interviewees reported that their initial school experiences were traumatic, not because of legal status specifically, but rather due to language and cultural differences. Imelda described school as “a struggle,” recalling, “I was very shy because I didn’t know anybody or anyone and … I started off in kindergarten so most of the kids already knew the language.” Marisol, a housecleaner who was in her forties, recounted that when her four-year-old son entered the US school system, he was so traumatized that he began vomiting and she had to pick him up from school: “He says, ‘Mommy, they don’t talk like me in the bus and the teacher kept asking me questions and I didn’t know what she was saying,’ so I started crying with him and I just said what did I do but I told him you can do it, you are going to learn English and you will be able to speak it. He then sat down and okay mommy.” Despite such early challenges, interviewees expressed pride in their educational achievements. Joaquin had been frightened during kindergarten, but, he said, “after kindergarten, I went to bilingual classes, by 2nd grade, I had entered into honors already. I made great progress.” Some post-DACA interviewees also reported that the intervention of supportive teachers or counselors made a difference in their educational trajectories. Stephanie, whose family immigrated to the United States from South Korea, commented, “my fourth grade teacher was very patient with me. She sat one on one with me, she helped me learn how to write, and then pronounce. Like I think one of the reason I got better was because of her. She was remarkable.”

College-age post-DACA interviewees reported that it was during their teenage years that the reality of being undocumented hit them in ways that impacted them academically. Some, such as Mireya, were already aware of their immigration status. Others only learned that they were undocumented when they tried to apply for college, obtain financial aid, or qualify for driver’s licenses. These interviewees found that any protections that they had experienced during K-12 schooling evaporated. Catalina, for example, told us “I didn’t really know I was undocumented until I was like 14 or 15, and then I – my junior year, no my whole entire high school career, I was like how am I going to pay for college? Like that’s not even possible.” Bryce, who had immigrated to the United States from Thailand, discovered his undocumented status when he applied for his first job: “I tried to get a part-time [job] being a lifeguard. I got my certification and went out to apply and I eventually got turned down and they told me I couldn’t work because my paperwork was kind of messed-up. I didn’t have a social, like that worked properly and after that I kind of like, ‘What?’” Bryce described the moment when his parents explained his status as “surreal.” Teenage years were a life stage when some were under pressure to join gangs, drop out of school in order to work, or assume family responsibilities. Imelda, quoted earlier, recalled of her own high school, “not a lot of kids would graduate.” Added concerns about immigration status made such pressures more acute. Their teenage years were also a time when the impact of legal differences between themselves and their siblings became apparent. Older siblings, who had reached college age before DACA, had experienced greater educational disadvantage, whereas younger siblings who may have been United States citizens, were able to pay instate tuition and qualify for financial aid. Some interviewees felt guilty about their own opportunities, but also resentful about the disadvantages they faced.

Interviewees who qualified for DACA by attending or completing high school experienced some relief from educational disadvantages associated with immigration status. Bryce, who had feared that it would be impossible to complete college and attend medical school, stated, “with the [deferred] action itself like all of a sudden I have these rights that I never had before. I felt a lot more accepted and the community I was felt like my home. Yeah, when it came out I was just very thrilled about it …. When DACA came out that’s when I really realized like hey, the future might not be as dark as I really anticipated …. All the hopes and goals I had suddenly became more plausible.” California law also made a difference in expanding their educational opportunities. For example, Imelda, who had imagined that she would be restricted to community college and would have to take out many loans, related, “I always knew it would be tough for me to go to college …. I’m so thankful for the California Dream Act because that will help me so much …. Now I could go to UC.” Similarly, Lupita, who was majoring in Public Health Policy with a minor in Civic and Community Engagement, said, “When I found out I could apply to AB 540 and the Dream Act and all that, I was like, ‘Oh, cool.’” With in-state tuition and financial aid, for Lupita, education became affordable.

Yet, despite DACA and California state policies, some interviewees still faced reduced opportunities. Not everyone qualified for DACA. Sonya, who was undocumented, completed a medical assistant degree but was turned away from an internship because she did not have a Social Security number. This experience was emotionally devastating. Choking up as she told the story, Sonya related, “I remember that I cried and cried. I walked for blocks and blocks without making my way towards home. I just wanted to clear my mind (desahogarme).” Even with financial assistance, college was still expensive. Nidia, for example, had to take a couple of semesters off to work so that she could help her family financially, while Alessandra, who had DACA, had to repeatedly take time off to work in order to pay for her education. She had been in college for eight years at the time of our interview. Some interviewees passed over opportunities to attend more prestigious universities for financial reasons. Joaquin, who was undocumented, recalled the educational challenges that he had faced:

It was hard to accept, year after year, not being able to transfer. You know, I was stuck at community college for seven years. And I didn’t know if I was going to finish or make it. But I was starting to lose hope. And then along the way, I also had to sacrifice a lot of things …. I had actually dreamed with going to Berkeley. I got admitted every year that I applied …. In 2010 I tried to commit suicide, and I, I regret it, but I think it was a waking moment.

Finally, uncertainty about DACA’s future coupled with the impacts of immigration enforcement created additional hardship for college students and their families. Catalina, who had DACA and was attending college at the time of our interview, worried,

I’ve always had a plan, right? I think that’s something that I’ve always tried to do. But it’s also been like this like kind of struggle with myself is that accepting that that probably won’t be the case …. If I could have any kind of security in the future which is I think that something that I yearn for just because it’s so much of my life has been unstable and going around it, trying to like going day by day, you know.

In the post-DACA era, educational institutions played complex roles in the lives of noncitizens who, in contrast to the notion of individual achievement celebrated in the DREAMer narrative, were subject to educational marginalization through illegalization, precarization, and legal uncertainty. On the one hand, institutions sometimes countered these processes, creating opportunities for inclusion, empowerment, and activism. Some high schools had special programs, such as Early Academic Outreach Program (EAOP) that enabled interviewees to prepare for college. Imelda, who went to high school in Compton, recalled that EAOP “helped me out with the college process and teaching me about the Dreamer [California Dream Act] and how to fill it out.” Nidia’s public school in Santa Ana provided educational materials in Spanish, which allowed her parents to participate in school activities. Catalina, who had never had health insurance, accessed health care through a student insurance program. Joaquin, who had taken ten years to complete his undergraduate degree, was able to envision pursuing a doctorate. Bryce learned how to apply for DACA through an educational organization, E4FC (Educators for Fair Consideration). Bryce then became active with an E4FC off-shoot, Pre-Health Dreamers, which intervened with medical schools nationally to encourage them to admit undocumented students. Mireya obtained legal and financial assistance for the DACA process from her university, which also helped her siblings complete the DACA application. Dreamer Centers were particularly important sources of community for undocumented students. The parents we interviewed also stressed the ways that schools had enabled them to volunteer, attend workshops, and advocate for their children. Records of their volunteer activities also helped to document their time in the United States. Thus, the resources and programs that educational institutions provided allowed many interviewees not only to pursue their own educational goals, but also to become activists working for social, educational, and legal change.

On the other hand, though educational institutions were potentially empowering, schools, colleges, and universities also were in some ways that place where illegalization, precarization, and uncertainty occurred. Alessandra felt that she was discriminated against at school. She stated, “Because some of the schools, when it came to appointments, they ask you stuff like your social or you need to fill out an application and they ask you for a social and you have no social, like, they’ll leave you just like that, you know, they won’t even give you the appointment. I don’t know, their tone of voice completely changes.” Mauricio graduated from high school in Peru, and so did not qualify for AB-540. Because he had to pay nonresident tuition rates, he could not attend a university. Herminia did not qualify for DACA and had struggled to attend college, dropping out when she was only a few credits short of completing her degree. With exasperation, she commented, “I’m thirty-nine years old now, and I’m still trying to become, you know, legal. And yet I feel like my life has gone by and I haven’t done much. And it’s very frustrating because if I had had my residency when I was going to college, I would have finished and I would have a good job right now.” Karina had DACA and was able to pursue her educational goals, but her father had been caught crossing the US–Mexico border and therefore would likely never be able to obtain legal status in the United States. Regardless of Karina’s educational achievements, she was still potentially subject to being separated from her father through deportation. Some interviewees reported that their schools and universities were not well informed about DACA, AB-540, or the California Dream Act. They found themselves educating counselors, rather than vice versa. Some universities took insensitive actions, such as inviting the border patrol to campus to participate in a career fair or to speak in class. In that their admissions policies, record-keeping practices, advising procedures, and financial assistance was not always designed to accommodate the needs of undocumented students, educational institutions could be exclusionary, reproducing educational disadvantage, preventing social mobility, and exacerbating uncertainty.

Discussion and Conclusion: Educational Mismatch

The pre- and post-DACA interview material analyzed in this chapter demonstrates that definitions of deservingness that treat educational achievement as a measure of individual merit are out of sync with the ways that educational institutions further illegalization, precarization, and racialization. When schools deny access based on immigration status, charge higher tuition to noncitizens, or administer programs that require documentation that immigrant students lack, then schools are themselves perpetuating illegalization in ways that can prevent educational success. The precarization to which noncitizens are subjected also shape educational experiences. Impoverished communities also have under-resourced schools; poverty requires parents to work long hours, thus impacting their abilities to be involved in their children’s schooling; and financial pressures may lead students to enter the workforce at young ages, or to care for siblings so that parents can work. Racialization and criminalization exacerbate these disadvantages, as schools treat students as potential gang members, or use discipline policies that alienate students. At the same time, this interview material also reveals that students, families, and educators have proven resourceful in pushing back against illegalization, precarization, and racialization. Interviewees described teachers and counselors who intervened positively in their lives, recognizing students’ abilities, conveying information about college, and advocating for students within educational institutions. Families sometimes resorted to workarounds, such as using different addresses, to gain access of educational opportunities, while students engaged in self-advocacy in order to enroll in accelerated programs. In some cases, schools served as a platform for organization and empowerment, providing students with resources to apply for DACA, develop clubs and advocacy groups, build community, and forge alliances.

The complex roles that educational institutions play in relation to illegalization, precarization, and racialization are evidence that living in the United States without authorization undermines noncitizens’ ability to demonstrate the “deservingness” that immigration policies often require. In other words, the undocumented are held accountable for the conditions that produce illegality, even though US policies create these conditions. For example, educational achievements are one way to show “deservingness,” and in recent years, the DREAMer narrative has been celebrated, generating public sympathy for undocumented students.²³ Yet, school systems are not always designed to support these students. Discipline practices may treat students of color as suspect, as described by Cesar, whose teacher did not allow him to go to the restroom even when he was bleeding. Schools sometimes treat language skills as a measure of academic achievement, placing non- or limited-English speakers in remedial classes or lower-grade levels. College opportunities may be beyond the reach of some high school graduates, due to their immigration status or to the expense of college. A lack of educational achievement can be a product of the immigration system rather than a measure of noncitizens’ own abilities. For these and related reasons, the DREAMer narrative has undergone considerable critique in recent years.

The similarities in interviewees’ experiences pre- and post-DACA suggest that temporary measures, such as DACA, though valuable, are insufficient to counter both the intensity of illegalization, and the financial pressures of paying for college. The uncertain nature of DACA, which could potentially be dismantled through legal action or presidential policy, makes it difficult for students to plan. In fact, on June 18, 2020, in Department of Homeland Security v. Regents of the University of California, the US Supreme Court ruled that the Trump administration’s rescission of the DACA program violated the Administrative Procedures Act (APA), due to being arbitrary and capricious.²⁴ The DACA program has been allowed to remain in place, for the time being. Yet, a new rescission order that complies with the APA could be issued in the future, making the circumstances of DACA recipients precarious. Furthermore, even if DACA is allowed to remain in place, a new generation of undocumented students who did not immigrate to the U.S. before 2007 will be ineligible for DACA benefits. These students will face increased educational and other challenges. Even if state policies enable undocumented students to attend college, lack of work authorization could make it impossible for them to work professionally. Moreover, the high cost of college affects undocumented students, students with DACA, and low-income students. Creating campuses that are truly sanctuaries requires making college accessible to all who qualify, regardless of their immigration status or income. Continued advocacy for affordable education, the rights of undocumented students, and programs that more effectively integrate English language learners in the public schools is needed. Transformative advocacy could establish transnational educational partnerships, bridging boundaries within and beyond national borders, and placing students rather than politics and economics at the center of educational programming. In such a future, illegalization itself would be dismantled, not through legalization but rather by limiting the divisiveness of borders themselves in ways that allow all to enjoy the right to have rights.

12 Constructing Human Rights State Power and Migrant Silence

Jaya Ramji-Nogales

This chapter analyzes the role of states in framing the scope and applicability of human rights protections. The limited perspective of the sovereign has constructed a system that, while ostensibly universal, prioritizes the power of the state while erasing the interests of migrants. The chapter argues that this flaw at the conceptual core of human rights contributes to contemporary migration-related challenges and demands radical rethinking.

Responding to the horrors of the Second World War, the project of human rights law described itself as a movement that would extend rights to all people by simple virtue of their humanity. This was a noble cause, but its ambition was hampered by the process and structure of international human rights treaties. Drafted by representatives of states, who were also the central subject and primary enforcer of these laws, multilateral human rights treaties perhaps unsurprisingly maintained the sovereign interest in border control. This profound state prerogative also manifested itself in the content of international human rights law itself – or perhaps more accurately, in human rights law’s silences.

Migrants are of course protected by numerous basic international human rights that attach to all people regardless of migration status. Human rights law constrains state behavior with respect to these rights, including the right to life, the right to be free from torture, and the right to freedom of thought and religion. Yet, when it comes to rights that would impinge on the sovereign’s ability to control its borders, such as the right to enter into, the right to safe transit to, and even the right to remain in a destination state, international law falls silent.

Destination states in the Global North have expanded their power into that gap, building a variety of mechanisms to keep migrants away from their borders. From the “Pacific Solution” to “Operation Sovereign Borders,” Australia has kept its sea borders clear of migrants (see Chapter 4 in this volume). Through agreements with North African and Middle Eastern states such as Libya and Turkey as well as the Dublin Regulation,¹ Europe has attempted to minimize the number of migrants reaching its shores. The United States has used a variety of harsh border control methods in an effort to deter migrants from approaching its southern land border (see Chapter 3 in this volume). Migrants pay the cost of these deterrence and border control programs financially, physically, and emotionally, as they are subject to extortion, exploitation, and abuse during their journeys. Yet these humans are not and will not be deterred from moving, as they seek freedom from harsh conditions in their countries of origin, pursuing the exercise of their human autonomy (see Chapter 6 in this volume). These deterrence policies increasingly encompass measures designed to strip migrants of their human dignity, and come at the cost of degrading the humanity of destination states.²

In the contemporary era of widespread anti-immigrant sentiment, it is hard to imagine states ceding power to protect migrants. Nevertheless, a critical analysis of the current structure of human rights law and its consequences points to the possibilities of an approach that takes the voices of migrants into account: a new human rights treaty focused on migrants rather than states.³ A human rights instrument that fully represents migrant interests is not likely to be signed by any destination states any time soon, but could still be a worthwhile drafting exercise in terms of its expressive function. This instrument might not be law in the traditional sense, but the process would bring together a variety of groups from civil society to corporations to diaspora to transnational families. A representative catalogue of migrants’ rights could help to frame the debate, persuade the public, and focus activist energies in lobbying states for change.

The Project of Human Rights Law

From its inception, international human rights law has represented itself as a project that extends rights to all people by simple virtue of their humanity. Although human rights law has undoubtedly contributed to a variety of expanded protections for many individuals, it has not fulfilled this original promise. There are of course many reasons for this shortcoming; this chapter focuses on one key factor: the role of sovereigns of the Global North in drafting and enforcing human rights law, and the resultant gaps in its protections.

Contemporary international human rights law, including in its canon treaties such as the Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Covenant on Economic, Social and Cultural Rights, was drafted in the wake of the Second World War.⁴ The United Nations describes the creation of international human rights law as an effort by the international community to ensure that the human rights abuses perpetrated during the war never occurred again.⁵ However, critical scholarship has described human rights law, which was created contemporaneously with independence movements in the Global South, as a continuation of “colonial ideology and practices”⁶ that “represent[ed] Western ideas of the individual, state, and society.”⁷ In other words, from the start, the project of human rights law portrayed itself as universal while privileging a particular worldview.

The United Nations website describes the Universal Declaration of Human Rights as “a roadmap to guarantee the rights of every individual everywhere.”⁸ This proclamation leaves open at least one core question about the scope of international human rights: exactly which rights are being guaranteed? The description appears to rely on an unsurfaced assumption that the content of these rights is universally agreed upon, or “[reflecting] a common sense of justice, fairness, and decency.”⁹ Even if international human rights law was somehow able to locate a set of rights that reflected the moral tenets of the vast and diverse membership of humanity, the guarantee also of course relies on states to guarantee these rights to “all members of the human family.”¹⁰ It is quickly apparent where this plan might fall short: states are not likely protectors of the humans at the margins of their societies, particularly those who might in the state’s view be undesirable.¹¹ Undocumented migrants present both of these challenges to the human rights canon: they demand rights that may not be universally accepted and they are generally disfavored by states, who prize the ability to exclude as a manifestation of their sovereign ability to control their territorial borders.

Though the idea of human rights arose much earlier, the evolution of rights in international law has a particular and contingent history that contributed to this gap between the story that human rights law tells about itself and its application on the ground. Anthony Anghie locates the foundations of modern international law in the colonial encounter between the Spanish and Indigenous people in the Americas.¹² He explains that the doctrine of sovereignty arose from Francisco di Vitoria’s struggle to create a legal system that managed relations between these two societies and their disparate cultural orders.¹³ Vitoria created the idea of natural law, which enabled the Spanish to insist that their cultural practices were a universally valid baseline that could and should be enforced both externally and by ensuring that their colonial subjects and others internalized these claims to universality.¹⁴ In addition, Martti Koskenniemi explains that the Spanish theologians’ theoretical approach to universal and individualized rights focused on ensuring horizontal justice between individuals rather than vertical justice between the individual and their community.¹⁵ Their theories supported territorial notions of sovereignty as well as ownership rights over private property. Koskenniemi describes this pre-Westphalian international legal regime in terms that are equally apt today, as a “powerful and long-standing type of informal imperial domination that is achieved through a worldwide pattern of acquisition and exchange of private property by which … formal state policies are also controlled, enabled, or undermined, as befits the global market.”¹⁶

In the same way, the fundamental rights conceptualized in the French and American Revolutions promised more than they delivered. The radical move to identifying the people (rather than the crown) as the source of political authority required a natural rights justification that could exist independent of the state. Unfortunately, social and historical realities simply did not match up with the idea that power came from the people, who as a result held inalienable and universal rights.¹⁷ Statehood was born of armed conflict, not from the inherent authority of the people. These allegedly fundamental rights were narrow in scope and applied only to a select few individuals; they were hardly universal in practice.¹⁸ And similar to the Spanish theologians, this new approach to rights created a division between the private or economic sphere and the public or political sphere.¹⁹ Though this change was justified as furthering the interests of all people, on the ground, it established new power relationships that furthered some interests more than others.²⁰

It was against this rather flawed backdrop that international human rights law was created. The new treaties drafted in response to the Second World War claimed universality yet extended a politically determined set of rights selectively. For example, the International Covenant on Civil and Political Rights (ICCPR) failed to extend certain key rights to groups such as undocumented migrants.²¹ In particular, human rights law reinforced the Western liberal democratic order by prioritizing individual and political rights over distributive and economic justice. While the ICCPR established binding obligations on its member states and required compliance in the short term, the International Covenant on Economic, Social, and Cultural Rights was characterized as an aspirational document that encouraged member states to make every effort to comply in the long term.²² This hierarchy that elevated civil and political rights above economic and social rights offered many eloquent provisions discussing the individual right to equality yet no opportunity to challenge the deep inequalities of global economic order.²³

International human rights law can be understood as part of a longer historical phenomenon that fundamentally altered the basis for governance, yet entrenched a particular framework for social change that is amenable to economic interests that seek to subjugate rather than emancipate.²⁴ Human rights law’s claims to universality mask political choices that prioritize certain interests over others. The coverage of these rights is narrower than the label “universal” might suggest; different levels of protection are allocated to more and less powerful individuals. Individual and political rights are prized while structural and economic harms are obscured. All the while, the language of universal individualism can be used to camouflage the perpetuation of extant power structures.

The Human Rights of Migrants

Undocumented migrants present a particularly illuminating case study through which to examine the limitations of international human rights law. Though they are on paper accorded the same fundamental rights provided to all human beings, undocumented migrants are much less likely to be able to access these protections on the ground due to their precarious status. Moreover, the rights that are most important to the undocumented – safe transit, entry, and to remain – are found nowhere in the canon of human rights law.²⁵

Though human rights law appears to provide universal protections, the obstacles to enforcing those rights means that vulnerable populations face limited access to those rights in practice. Migrants are particularly vulnerable in transit, suffering harms ranging from murder to brutal sexual assault to extreme financial extortion.²⁶ Even after undocumented migrants are able to enter the territory of their destination, they are targets for violence and exploitation at the hands of a variety of actors. The undocumented are rendered vulnerable through their immigration status; even if they know that there is a legal remedy for the harms they suffer, they may be unable to report these abuses to and seek protection from local authorities because they fear deportation.²⁷ Many of the undocumented migrate to seek employment, often finding jobs available to them only in dirty, degrading, and dangerous sectors. When their employers refuse to pay them, these migrants may fear that identifying themselves to law enforcement will result in their deportation; indeed, employers can prey on these fears and threaten to call migration control if migrants attempt to assert their rights. Some migrants brave enough to report these and other violations to law enforcement are then exploited and abused by government actors. Undocumented migrants belonging to relatively isolated linguistic groups face even greater obstacles to understanding and accessing their rights, and can be preyed upon by members of their community, who may demand usurious fees to provide them with faulty or obvious information.

Human rights law is not responsive to the needs of these migrants. Though empirical studies of population preferences are hard to come by, it seems fairly safe to assume that undocumented migrants would prize the right to enter their destination state lawfully, the right to travel safely to that state, and the right to remain safely once on the territory of that state. The first right, to entry at will, is not accorded to any set of migrants, even refugees, who otherwise benefit from preferential treatment. Though the Universal Declaration of Human Rights envisioned a right to asylum that would have enabled refugees to enter any country to seek protection, that aspirational provision failed to find its way into any multilateral human rights treaty.²⁸ The right to travel safely is similarly absent from human rights law. Though migrants in transit are in theory protected by international human rights treaties signed by transit countries, they face perhaps even greater challenges in enforcing those rights than undocumented migrants in the host state because of the increased level of vulnerability implicated in travel. More importantly, human rights law does not authorize migrants to access safe carriers, relegating them to dangerous journeys by foot, in cramped and often airless trunks and shipping crates, and on top of trains. Finally, the plain text of human rights treaties does not offer undocumented migrants the right to remain in their host state. Treaty interpretive bodies have refused to read that right into any of the multilateral human rights treaties.²⁹

While human rights law claims to be universal in its scope and applicability, it fails in some cases and refuses in others to speak to the rights that are crucial in protecting undocumented migrants. International human rights law has not strayed far from its roots; the continuities with colonial rule are unmistakable. The rights contained within the human rights canon obscure the underlying assumption that all humans have equal autonomy and access to justice. Those who have been rendered less than autonomous through global economic inequality and the legacies of colonialism – undocumented migrants being just one example – fall outside the scope of protection. Human rights law is unmistakably silent on the question of how to protect these populations.

Human Rights Law’s Silences

The protection gap that human rights law constructs and obscures creates an opportunity for migrant destination states to flex their sovereign muscle through a variety of mechanisms to prevent the undocumented from reaching their borders.³⁰ These deterrence-based border control policies perhaps unsurprisingly do not prevent migrants from undertaking their journey, but instead amplify the dangers that migrants face in transit. Although human rights protections against mistreatment and abuse may apply in theory, migrants in transit are rarely able to enforce those rights. Without the right to enter, transit safely, or remain, the undocumented are subject to harsh treatment at the hands of states and private actors. Moreover, the images of hundreds of migrants approaching the borders of destination states in the Global North make ideal fodder for nationalist politicians seeking to expand their own power through xenophobic fearmongering.

For at least the past twenty years, migrant destination states have pushed their border enforcement well beyond their physical borders through programs such as the “Pacific Solution” in Australia and “Fortress Europe,” as well as lesser-known programs such as Programa Frontera Sur in the United States and Mexico. Australia has been the most successful at preventing migrants from crossing its borders, effectively “stopping the boats” as its nativist politicians promised as part of their campaign platforms. This cruel policy began in 2001, when the Norwegian freighter, the MV Tampa, rescued more than four hundred Afghanis and Iraqis who had traveled by sea from Southeast Asia to seek asylum in Australia.³¹ The Australian government refused to allow these asylum seekers to land on Australian territory, instead unloading them into a naval vessel that transported them to the remote island of Nauru. There, the Australian government was able to detain these migrants in an asylum processing center they had previously created.

These detention centers, as well as similar centers in Manus Island, have been the subject of criticism by human rights treaty actors and academics.³² The analysis is telling: “offshore processing” is “neither explicitly prohibited nor authorized under the Refugee Convention and its Protocol and the relevant human rights treaties.”³³ Although the treatment of migrants in detention centers violates human rights law, it has been difficult for migrants to enforce those rights given their distance from Australian territory and precarious status.³⁴ The detention centers were briefly closed down by the Labor Party when it took power in 2007, but then reinstated in 2012 after sea arrivals began to increase.³⁵ In the 2013 election, candidate Tony Abbott campaigned on a “stop the boats” slogan that ushered him into the prime ministerial suite.³⁶ Using methods that afforded no deference to human rights law, such as turnbacks and towbacks, migrants arriving by boat have been returned to their home countries.³⁷ As an island nation, Australia has ensured that undocumented migrants, including refugees, cannot enter their territory. Human rights law’s gaps in protections, in this case the absence of a right to safe transit or entry, enable states to engage in extraterritorial processing. Moreover, though some existing human rights might offer some protections to undocumented migrants on paper, migrant vulnerability creates substantial obstacles to enforcing those rights.

Europe has also undertaken an array of programs to prevent migrants from reaching its borders. Regional human rights law has played an important role; though it has not established a right to entry, the European Court of Human Rights has held that member states exercising jurisdiction outside of national territory must process individual migrants’ claims to protection before returning them.³⁸ Human rights law does not, however, prohibit member states from preventing migrants from reaching their jurisdictions. The European Union and its member states engage in capacity-building efforts with border guards in home and transit states, establish readmission agreements with countries of origin and transit, and create mobility partnerships that require states of origin and transit to sign onto border control reforms and readmission agreements in order to create temporary migration opportunities for a limited set of workers.³⁹ Though human rights actors have expressed concern with the manner in which these agreements are enforced and their potential for violating the rights of migrants, human rights law’s silence around entry and safe transit creates the opening from which these policies can grow.

For at least forty years, the United States has prevented migrants from reaching its sea and land borders through a variety of externalization policies. In 1981, the Reagan administration signed an agreement with the Haitian government that enabled the US Coast Guard to interdict on the high seas boats carrying Haitians and push the passengers back to Haiti.⁴⁰ Nearly ten years later, the US Supreme Court held that the Refugee Convention’s nonrefoulement protections did not apply on the high seas, allowing the George H. W. Bush administration to push back Haitians without screening their claims to refugee status.⁴¹ Since 1994, interdicted migrants have been detained at the US naval base in Guantánamo, Cuba; at times they have been screened for refugee status and at times they have simply been held awaiting return to Cuba or Haiti.⁴² On land, the US government has allocated substantial resources toward ensuring that Mexican authorities prevent Central American migrants from arriving at its southern land border.⁴³ Through the Mérida Initiative and Programa Frontera Sur, the Obama administration provided financial and logistical assistance to Mexican border enforcement.⁴⁴ Under the Remain in Mexico program and the Asylum Cooperative Agreement, the Trump administration pushed some migrants back into Mexico to await their court hearings and sent others to Guatemala to pursue their claims for protection.⁴⁵ Without a right to safe transit or entry under international law, domestic governments can interpret human rights law’s silences to enable their externalization policies, with harsh consequences for the migrants subject to those policies.⁴⁶

Filling the Silences with Migrants’ Voices

Despite its claims to universality, international human rights law does not adequately reflect the interests and preferences of undocumented migrants. Without key rights relating to movement, namely, the rights to safe transit, entry, and to remain, migrants suffer substantial vulnerability and face serious obstacles to accessing the human rights to which they are ostensibly entitled. Destination states are able to leverage human rights law’s silences to implement increasingly harsh measures to prevent migrants from even reaching their borders. By inflicting inhumane harms on humans on the move, these methods of border externalization also degrade the humanity of the societies the migrants seek to enter. Human rights law’s colonial roots prevent it from fulfilling its potential as a project of emancipation.

An emancipatory approach to international human rights law might instead take the human seriously, beginning from the perspective of the law’s subject: the migrant. A reimagined canon would identify and foreground the voices of those in precarious situations, asking what protections are needed to minimize their vulnerability. Those inquiries might well lead to a right to safe transit, entry, and to remain, but an emancipatory response must rest on empirical study to catalogue and uplift the migrant’s perspective. This challenging task has yet to be performed, though several scholars are developing thoughtful and robust methods to collect migrant voices.⁴⁷

The year 2020 seems perhaps an unlikely juncture from which to demand radical reform in favor of the interests of undocumented migrants. As destination states sink to new depths of inhumanity toward humans on the move, one might reasonably argue that any changes to international law are more likely to diminish rather than expand the rights of migrants. Yet contemporary attitudes and policies toward migrants foreground the urgency of a response that underscores the humanity of the undocumented. Moreover, the unsettled political ground on which destination states currently stand can create unexpected openings, perhaps as citizens of these countries begin to realize the cost of inhumane border enforcement for migrants and for their own societies.

Although the governments of destination states may be unlikely in the current political climate to sign a multilateral human rights treaty that represents migrant interests, several other paths to generating a new set of migrant-centered human rights standards present themselves. Regional human rights bodies and other regional organizations might offer a location that is more amenable to migrant interests. In December 2019, the Inter-American Commission on Human Rights adopted the Inter-American Principles on the Rights of All Migrants, Refugees, Stateless Persons, and Victims of Trafficking, taking a first step in this direction.⁴⁸ Cities may also provide a space for generating human rights standards, whether binding or expressive, that represent the interests of migrants.⁴⁹ Other groups, from civil society to transnational social movements, might also seek to expand the source of human rights law beyond the state. Though a catalogue of rights generated by one of these groups will obviously not be binding law, it could offer a starting point for reframing perceptions of migrants and their rights through a process that rejects the state-centered focus of international law. Diaspora, transnational families, and others can similarly invoke conceptions of human rights that more clearly track the interests of migrants, either by adopting instruments and definitions created by other groups or by drafting their own language to represent the interests of their friends and loved ones. These groups and others, perhaps even including corporations and religious figures, could help to push forward a new framing of migrants’ rights, which could be used to help persuade and remind citizens of destination states of the humanity of those on the move. It is a daunting road, but only by hearing and uplifting the voices of undocumented migrants can we push human rights law closer to its emancipatory potential, redeeming the humanity of migrants and citizens of destination states alike.