A version of this essay was presented at The New School for Social Research’s Politics Panel – Refugee Movements and the Crisis of Europe: Theoretical Interventions on April 18.

Most of the debate about the European refugee crisis revolves around whether the responsibility of handling them belongs to European institutions or to individual nation states, and, if the latter, which among them: the first country of entry (as the Dublin regulations established) or some other country. In this brief intervention, I would like to suggest that this is a false dilemma: in terms of citizenship, the European Union is dependent on the nation states that comprise it and thus, as a whole, Europe, as a political organization, is still largely dependent on their underlying logic. But the states are incapable of handling the crisis precisely because they are the very source of it.

I will be using “migrant” and “refugee” interchangeably. As the summer approaches, and quick rubber-boat rides become easier to access, Europe will again witness an intensification of the economic migration from the North African coast, further blurring the very distinction between migrants and asylum seekers. I want to treat the two categories together because I think that the distinction between those who migrate to flee economic starvation and those who migrate to flee persecution is both theoretically fragile and politically disastrous. The definition of a refugee in the 1951 Convention and Protocol Relating to the Status of Refugees, which currently regulates the status of refugees in Europe, is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion.” Statistics clearly indicate that people would rather stay where they are if conditions permit: when they migrate illegally, most often risking their own life in the journey, it is because they are facing extremely hard conditions of life. In that respect, whether those hardships are due to economic starvation or persecution, or both, as is often the case, does not matter: the distinction is too thin to be taken into account and, as a matter of fact, very hard to determine case by case. But besides being theoretically thin, it is also politically disastrous because it has been used de facto to limit legal access to just a very few exceptional cases, as Miriam Ticktin remined us.[2] To give an example quoted by her, out of 12,549[1] “illegal” immigrants that entered Spain in 2014, only 15 people were granted asylum, according to EU Eurostats. If you consider that Turkey alone is currently home to approximately 3.2 million refugees, you get a sense of the catastrophe, and of how the European states can all too easily use the distinction to deny rights to the many and limit them to the very, very few.

Instead of asking how the European states can solve the refugee problem, we should rather focus on the prior question: can nation states actually do it at all? And the answer is no. European states are unable to deal with the problem because the European nation state, as a political form of organization, is the very source of it.

In order to understand why this is the case, we must go back to the underlying assumption that treats migration as a problem. How did something that human beings have constantly been doing since their first appearance on earth become a problem to solve at best and an outright crime at worst?

When we speak of the crime of “illegal” immigration, we make reference to a very specific juridical framework. Although immigration policies vary from state to state, in most cases, aliens who clandestinely cross a sovereign state’s borders commit a misdemeanor, and, if repeated after being deported, the act becomes punishable as a felony. This holds for most European and for US migration policies, for example.

Notice here the anomaly of immigration law. As the “No one is illegal” manifesto reminds us, under all other laws, it is the act itself that is illegal, whereas in immigration law the person is treated as illegal.[3] When you cross a border without proper documents you are not doing something illegal: you are becoming illegal yourself. As a consequence, illegal immigrants are dehumanized and thus reduced to non-persons: they exist outside of the law and thus outside of the law’s protection.

On the basis of a conception of the law centered on personhood, on one hand, and on the roundness of the earth on the other, Immanuel Kant defended his idea of a cosmopolitan right of hospitality. Human beings are given the entire globe as their dwelling, but they cannot disperse on it infinitely because the globe is spherical. This also means that you cannot be denied entry in all and every country you cross because you would end up precisely where you began. According to Kant, this explains why every human being has the right to move about the earth and try to enter in friendly relationships with others living in other regions of the world, who have in turn a universal duty of hospitality, which means merely allowing aliens entry: not treating them warmly and nicely.

Kant liked to present his theories in the form of a transcendental justification. Let us see what happens if we adopt a more mundane empirical perspective. People have always been migrating on earth. Since the very first appearance of that animal species homo sapiens, humans have constantly been moving from one land to another, from one region to the next. How did it happen that such a tendency could be persecuted as a crime, up to the point that doing it makes the people who do it “illegal”?

Humans have always migrated on earth, but they have not always lived under sovereign states. From a long-term historical perspective, the modern system of nation states cannot but appear as a relatively recent phenomenon. It began in Europe sometime during the sixteenth century and was ratified, according to most historians, by the 1648 Peace of Westphalia.

This implies:

  • The state system is not an a priori of human life, but a contingent historical phenomenon which appeared at some point in history, so there is no a priori reason to suppose it will be here forever;
  • Its history can actually be located in a very specific place and time — European modernity — and it is not clear whether exporting it elsewhere was a good idea.

This second point is particularly relevant here because most of the debate around migration tends to take the presupposition of a world of sovereign states for granted. But this should not be the case, first and foremost, because it has not always been so.

As many theorists of international relations have recently pointed out, it is time to dispel the myths surrounding the Westphalian state system. The organization of the political space in a system of states, each claiming sovereign authority within a specific territory, with the consequent system of clear-cut boundaries, defining inside versus outside, began in Europe and remained an exclusively European phenomenon for quite some time — at least a few more centuries. During that time, the rest of the world largely lived under empires. Only with colonialism was the Westphalian state exported outside of Europe, where it indeed remained mainly just an idea until 1945 and the decolonization movement. It was only then that the sovereign state became a universal model, the unquestioned default option of political organization.

But does it have to be so? And can’t we think of forms of political organization with porous boundaries? Empires did not have many virtues, but at least their boundaries were porous, much more flexible and open that those of sovereign states, which work with a strict logic of the inside versus outside and the consequent policing of borders.

To sum up: the idea of a world fully divided into sovereign states is not only an historical phenomenon, but also a very recent one, and one that is proving not to work particularly well. Its incapacity to handle the refugee crisis and migration in general is just one among the failed promises of the sovereign state system (I will leave those other failed promises for another occasion).

Yet, we are so caught up in the model of the sovereign state that we keep debating within its logic without being able to radically question it: “this is our land,” ”we were here before you,” “you have just arrived.” In doing so, we forget that the only thing that we can actually claim to communally possess (because we literally cannot go elsewhere) is the whole earth: nothing more, but also nothing less.

Let us try to imagine what would happen by abolishing border control or at least the crime of undocumented immigration. There would be no need for detention centers, no clashes between migrants and police, no human smugglers, and possibly also less racism. It is the amassing of huge numbers of human bodies into prison-like detention centers that creates most of the problems associated with the so-called “refugee crisis.” No border control would mean no border problems. People could simply go where they wanted to go, and generally they tend to go where they stand a chance of a decent life.

Writing in 1891, Enrico Malatesta observed:

“In France there has existed for centuries an institution, the louveterie, entrusted with the task of destroying wolves hunting the French territory. No one will be surprised to learn that it is just because this institution exists that there are still wolves in France and in exceptional winters they really play havoc.”

At a time when wolves had ceased to be a problem, because people had stopped demonizing them, they still created a problem in France, simply because a special institution devoted to their extermination existed. Similarly, it should come as no surprise that migration problems exist because border police exist. No louveterie, no wolves. No border control, no border problems, which also means need to invest millions of Euro in building walls and fences, no detention centers where migrants are forced to live in terrible conditions, no routine shipwrecks and deaths in the Mediterranean, and also no human smugglers who can play havoc and indeed become like wolves.

According to many estimates there are currently 53,000 refugees and asylum seekers stuck in Greece, which they had expected to just be a country of passage. The reason is that the Dublin regulations (invented to prevent people from seeking asylum in more than one country at the same time) force migrants to request asylum in their first country of entrance to the EU. For a country like Greece, this creates huge problems (where to host migrants, how to feed them, how to support such a mass of people who have nothing except exasperation). But if the Dublin regulations and all the other refugee laws that currently regulate immigration were not there, the problem would not be there. These people would have naturally gone to the countries and spaces where they could stand a chance of a decent life (probably some strong welfare state in the north of Europe, certainly not countries that are economically struggling such as Greece or Italy).

To conclude, the problem is not how to handle the refugee crisis nor, for that matter, migration in general. The point is to overturn the logic that made it a problem in the first place. Human beings lived outside of that logic for most of our recorded history: maybe getting into it was not a good idea in the first place. Perhaps the time has come to reconsider it. Whether we are willing to do so or not, this is what migrants of all sorts are already doing.

Occupy Wall Street protesters captured the sense of what is going on when they coined the slogan “We are all on the same boat; and the boat is sinking.” I have tried to render this interconnectedness with the idea that I cannot be free unless everybody else around me is free — what I have called the “freedom of equals”[4]. Put it in less abstract terms, we can perhaps say that solidarity is not about helping them, but rather about saving us all.



[1] http://www.thelocal.es/20150414/illegal-immigration-jumps-by-two-thirds

[2] https://publicseminar.org/2015/09/the-problem-with-humanitarian-borders/#.VxQC73qkzKE

[3] http://www.noii.org.uk/no-one-is-illegal-manifesto/

[4] Chiara Bottici, Imaginal Politics, Columbia University Press, 2014, pp. 179-201