Why did we get here? Why is it that most liberal democracies, such as the USA, Germany, Italy, the UK, France, Australia, and the list can go on, are abdicating their commitments to defend human rights, violating international law, and creating zones of lawlessness by building refugee detention centers; outsourcing the dirty work of preventing refugees from reaching their shores to lawless and failed states such as Libya or to authoritarian regimes such as Turkey; or even excising territories from their own jurisdiction, so as not to be responsible for arriving refugees? In an age of rapid transformations in which the coordinates of our everyday lives are melting into thin air, the refugee and the migrant have become the quintessential others and strangers. All the while, migratory movements are accelerating as a result of civil wars, cycles of poverty and corruption, domestic gang violence, climate change, and desertification.Footnote 88 In the age of liquid modernity, to use a felicitous expression by Zygmunt Bauman,Footnote 89 blaming the stranger is a way of reducing complexity and avoiding responsibility. The perception of strangers as dangers is easy, seductive, and psychologically deep-seated when human beings themselves are threatened and feel insecure. The sense of being abandoned by their own state, while being “dumped upon” to care for the poor migrant and the displaced asylum seeker in their own neighborhoods and schools, exacerbates fears among the native population that they too could easily find themselves in the predicament of the unwanted and vulnerable stranger.
Do liberal democracies have the moral, political, and intellectual resources to deal with these dynamics? Or, must they succumb to the politics of fear and ressentiment? The political philosopher, Judith Shklar, once noted that the principal task of liberal societies was not only to render justice but also to forbid cruelty.Footnote 90 Cruelty inflicts not only physical harm and torture but subjects its victims to humiliation and indignity. Cruelty is spreading in liberal democracies at the cost of those who are most vulnerable, whether within or without our borders. How can the politics of cruelty be avoided? How can liberal democracies respect their commitments to human rights, dignity, and solidarity while respecting the moral as well as international human rights of migrants and refugees?Footnote 91
From the standpoint of ideal political theory, the justification of the boundaries of the demos—that is to say, defining who counts as a member while excluding others, as strangers, aliens, the undocumented, etc.—is one of the most vexing problems in liberal-democratic theory. According to the classical formulation by Frederick Whelan, “The boundary problem is one matter of collective decision that cannot be decided democratically… We would need to make a prior decision regarding who are entitled to participate in arriving at a solution …[Democracy] cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes.”Footnote 92 Robert Dahl had observed half a century ago that the problem of how the democratic people can be legitimately constituted had been neglected by democratic theorists.Footnote 93
How far does the privilege of a democratic people to define itself by constituting its rules of membership extend? Can democratic peoples simply block the entry of refugees and refuse to accept migrants? By focusing on recent developments in the application and interpretation of the 1951 Refugee Convention and states’ refugee admission practices, this article has attempted to throw light on some of the empirical trends that ideal theory must heed in order to articulate a more adequate defense of the boundaries of the demos. I will distinguish among three normative positions in contemporary political philosophy that try to deal with this question: liberal nationalism, liberal internationalism, and cosmopolitan interdependence.Footnote 94
Liberal nationalists claim that without well-protected borders, there can be no democratic self-governance. There must be a centralized agent of some kind that takes responsibility for protecting a country’s natural and material assets, and that ensures continuity of its public culture and democratic values. Immigration and transnational movements across borders are permitted, but the regulation of their quantity and quality remain sovereign privileges. Countries may admit more or less numbers of refugees and respect the claims of asylum seekers; they have the right to regulate access to their labor markets and to turn away certain strangers. Furthermore, the rights of strangers who are admitted to such societies are regulated through the sovereign determination of legislatures. Although liberal nationalists consider it desirable that their legislatures should act in accordance with international law, what counts in the first place, is “our” law, “our” precedents, and “our” values. The liberal nationalist position has a formidable array of adherents, among others: Rawls, Walzer, Nagel, and Miller.Footnote 95
The weakness of the liberal nationalist position is that it neglects international law constraints on the sovereignty of the demos by constructing state sovereignty as if it were solely defined by the self-assertion of the demos. Under conditions of economic, technological, and epidemiological pressure, the two halves of liberal nationalism often come apart and liberalism is readily sacrificed to nationalism. We see this very clearly in the rise of contemporary populist movements throughout liberal democracies who consider migrant and refugee rights to be secondary, and in many cases, damaging to national interests and self-assertion.
Liberal Internationalists argue that it is wrong to think of sovereignty as a unilateral prerogative to be wielded against others.Footnote 96 Rather, states exist within regimes of sovereignty that change over time. The Westphalian model of the absolute jurisdiction of a central authority over all that is living and dead in its territory is a myth of the past (if it was ever a historical reality is doubtful). Liberal international sovereignty is exercised within a system of international law and is regulated by institutions like the United Nations Charter, the UDHR, and the regimes of human rights that have been created in the aftermath of World War II.Footnote 97 States must respect their obligations under international law. In the protection of their borders, they must balance self-interest with international obligations. Such balancing is understood to be beneficial economically as well, because international prosperity requires respecting the rules of the game, be it of trade or diplomacy. While respecting their obligations under international law, states have the prerogative to define their labor market policies as they choose. Migration models that privilege meritocracy or those that give first priority to family affiliations are both acceptable. The rights of the strangers among us ought to be determined in accordance with national and regional as well as international norms.
The principal weakness of this regime, even in view of the emergent New Liberal Consensus around refugee rights, is sharply articulated by T. Alexander Aleinikoff: “In accepting a State-based refugee regime, the New Liberal Consensus approaches the international refugee regime not as a system but as a series of bilateral and multilateral bargains.”Footnote 98 As the bilateral agreements between Italy and Libya, the multilateral agreement between Turkey and the EU, and the bilateral agreements between the USA and Mexico as well as Guatemala show, such deals are quite compatible with states shirking their responsibilities under the 1951 Convention. These arrangements encourage what I have called the deterritorialization of responsibilities by outsourcing them, by encouraging non-entrée of refugees and even by excising territory. Short of a more radical restructuring of conceptions of state sovereignty, a more robust commitment to global responsibility sharing is impossible.
The cosmopolitan position pushes liberal internationalists beyond the perspective of the state, which, whether liberal or not, privileges an “ontology of containment” that denies the radical fluidity, historical variability and interdependence of peoples, histories, cultures, and territories on both sides of the border. Cosmopolitanism proceeds from the premise that human mobility is an anthropologically deep-seated drive of the human species, and that the regulation of human motility through national borders is quite recent in human history.Footnote 99
This is not a plea for a world without borders, because democracies require jurisdictional boundaries. In that sense, the liberal nationalists are right: We must know in whose name the law is being enacted and how we can request accountability from those who enact it. But these jurisdictional boundaries need not be co-terminous with militarily armed and violently guarded border regimes.Footnote 100
If we move our gaze below as well as above the level of the state, we see that municipalities, regions, and borderlands shape and define the interdependency of citizens and strangers. Cosmopolitans insist that migratory movements, be it for searching for work or seeking asylum, occur because of “push” and “pull” factors. What are such factors and what is our share of responsibility in enabling them, if any? The cosmopolitan perspective enjoins us to investigate and analyze, much prior to the migrant and refugee arriving at the door, how, if at all, our national and regional policies may have contributed to such movements. Both the liberal nationalist and the internationalist treat migratory movements across international borders primarily as matters to be regulated, governed, and controlled. Thus, the European Union will continue to intercept migrants at sea but unless and until economic dislocations caused by aspects of EU agricultural policy that protect French farmers at the expense of African ones are understood; unless and until state collapse in Libya is handled; unless and until the endemic corruption of some of these regimes that sell their natural resources to international corporations while letting their people starve comes to an end, people from Africa will flock to refugee boats to cross the Mediterranean.
When we consider the recent surge of migrants and refugees to the USA, we have to ask how US policy, pursued by successive Administrations, of cooperating with enforcement agencies in Honduras, Guatemala, and El Salvador has resulted in the creation of narco-states, in which the police and parts of the military are enablers of the extortionist gang violence in these countries rather than defenders of their citizens.Footnote 101 And if US aid is cut down to these countries in the midst of climate change that is killing their precious coffee crop, what responsibilities do we bear toward those who knock on our doors? Do our public narratives criminalize the other, the stranger or do we seek for the roots of the ethical responsibilities we bear toward each other resulting from the economic and political systems we are situated in?
Two recent global compacts initiated by the UN reflect precisely the tension between liberal nationalism, liberal internationalism, and cosmopolitanism. “The Global Compact on Refugees” (December 17, 2018) emphasizes the need for a more equitable and responsibility-sharing system, “recognizing that a sustainable solution to refugee situations cannot be achieved without international cooperation” (https://www.unhcr.org/en-us/the-global-compact-on-refugees.html. Accessed June 8, 2020). The Global Compact on Refugees is not legally binding; it will perform its operation through voluntary contributions to be determined by each state and relevant stake holder. In the attempt to balance respect for the sovereign equality of states with a more robust and equitable system of international cooperation, the Compact acknowledges the “generous” contributions of those states that are not signatories to the 1951 Convention to refugee protections and prevention, and encourages them to consider acceding to those instruments and recommends to States parties with reservations to the Convention to give consideration to withdrawing them. (https://www.unhcr.org/gcr/GCR_English.pdf, A/73/12 (art II), article 6). In other words, despite cosmopolitan intentions, the Compact not only recognizes the principle of equal state sovereignty of non-compliance with the Convention but also leaves open many loopholes that excuse non-cooperative and non-complying state behavior.
“The Global Compact for Safe, Orderly and Regular Migration” (19 September 2016) is likewise a non-binding document “that respects states’ right to determine who enters and stays in their territory” (https://www.iom.int/global-compact-migration). Its goal is to enhance international governance of migrants’ mobility by addressing all aspects of international migration such as humanitarian, human rights, and economic development issues while acknowledging that the refugee condition is governed by a different set of norms.Footnote 102
Without a doubt, any international agreement that would depend on state cooperation and compliance has to accept the dual foundations of the legitimacy of the international state system: international human rights law and sovereign state equality. Within these limitations, the virtue of both Global Compacts is to bring into international visibility the transnational movement of peoples across borders without resolving, however, any of the contradictions of the dual legitimation system.
As E. Tendayi Achiume observes, “Achieving an ideal form of global migration governance would, in other words, require remedying the fatally flawed conception of state sovereignty at the heart of international law and which nation States are strongly incentivized to protect.”Footnote 103 At the level of ideal theory, the task is to embed democratic self-determination in a new international law of interdependent sovereignties.