PRESENTER 1: Now, for the
first decade of the university,
Dewey was chair of the
university's philosophy
department.
And during that
time, he founded what
became known as the Chicago
School of Pragmatism,
and intellectual movement that
applied scientific methods
to societal problems.
And also during
that time period,
he founded the university's
laboratory schools.
Now, in 1981, our then dean of
the law school, Gerhard Casper,
decided the law school should
recognize Dewey's contributions
to the university and his
contributions to legal theory.
So he corresponded with the
philosopher Sidney Hook,
who was then president of
the John Dewey Foundation,
about establishing a lectureship
here in Dewey's name.
And Hook readily
agreed and supported
the establishment of this
lectureship in jurisprudence.
Now, the Dewey Lecture
is so in keeping
with the mission
of the university,
and particularly the
mission of the law school.
Our law school was
founded on the idea
that lawyers needed to know more
than just dry legal doctrines.
They needed to understand
the theoretical underpinnings
of the very idea of law and of
lawmaking that are so crucial,
and have become part
of legal education
here at the law
school and, I think,
throughout the legal
academy across America.
Now, to understand those
deeper underpinnings,
legal education has to
be interdisciplinary.
And here again,
from our founding,
our law school has been
very interdisciplinary,
and has drawn on philosophical
insights and understanding.
We're very happy that the Dewey
Lecture has brought to the law
school many distinguished
philosophers
to help us explore
these foundations.
I note-- I won't
list everyone who
has given the Dewey
Lecture in the past,
but I will note that John
Rawls' famous paper, The Idea
of Public Reason Revisited,
was initially a Dewey Lecture,
and then was published
in our law review.
And today, the law school
is delighted to welcome
today's speaker, Seyla
Benhabib, the Eugene Meyer
Professor of Political Science
and Professor of Philosophy
at Yale University
and Senior Fellow
at the Columbia Center for
Contemporary Critical Theory.
Professor Benhabib is a scholar
of tremendous imagination,
insight, and influence.
She is author of
dozens of books,
numerous collected volumes,
and over 100 articles.
Her ideas and works
are discussed and read
all over the globe--
I note that they were
being discussed right here
on our campus earlier today--
and they've been translated into
more than a dozen languages.
Her scholarship and the
influence of her scholarship
is evident in the many
accolades she has received.
I will not list them all.
I would take the entire
hour listing them all.
They include the Ernst Bloch
Prize, the Leopold Lucas Prize,
the Eckhart Prize of
the Identity Foundation
and the University of
Cologne, in addition to
numerous other fellowships,
honorary degrees.
Professor Benhabib's
most recent book
is Exile, Statelessness,
and Migration--
Playing Chess With History from
Hannah Arendt to Isaiah Berlin.
Her scholarship in
political philosophy
draws on political
critical theory
and feminist political theory.
She advocates for
dialogues across cultures
to explore the most fundamental
tenets of human civilization,
including cultural identity,
freedom of association,
and fundamental human rights.
Her work explores
the impact of culture
on such complex issues
as sovereignty, borders,
and human migration.
Her lecture today will explore
the 1951 Refugee Convention
and its 1967
Protocol, which face
new challenges with the
globalization of the refugee
crisis.
We are thrilled and honored
to welcome Professor Benhabib
as our 2020 Dewey Lecturer.
Welcome.
[APPLAUSE]
SEYLA BENHABIB: Thank you
very much to you, Miles,
for this wonderful
introduction, and thank
you, Professor Nussbaum, for
organizing and initiating this.
It's a real pleasure to be
here among so many friends
and former students.
What I will present
this afternoon is
part of a larger project I'm
calling The New Sovereigntism.
It is about the revival of
the concept of sovereignty,
both on the right and
the left, but also
the contentious
relationship, increasingly,
between state sovereignty
and international law.
So I also look forward
to learning from you,
since, as a philosopher,
political philosopher,
I am jumping into this domain.
During the summer of
2018, a ship of refugees,
the Aquarius, sailing
from the coast of Africa
with 629 people on
board, including
123 minors traveling alone, 11
children, and 7 pregnant women,
stood at the center of the
European refugee crisis.
Denied admission to Italy by
the interior minister, the then
interior minister,
Matteo Salvini,
of the anti-immigrant and
neo-fascist Lega Nord Party,
the Aquarius drifted
around the sea for days,
and was eventually
granted permission
to disembark at the
port of Valencia
by Spain's newly elected
socialist government.
The Aquarius affair was preceded
by an interception at sea
by the Libyan Coast Guard
under a bilateral agreement
with the Italian government
of a humanitarian rescue
operation in November 6,
2017, which led to the death,
again, of at least 20 migrants.
The article
documenting this event,
and signed by several
migration scholars,
was called It's
an Act of Murder--
How Europe Outsources
Suffering as Migrants Drown.
And in fact, the Aquarius
was decommissioned
after this affair, and
Medecins Sans Frontieres,
Doctors Without Borders,
who operated the ship,
gave its rescue operations.
Such encounters
at sea take place
under the aegis of international
law and agreements.
The sea captain, who is
on international waters,
has an obligation to accept
these individuals on board
as long as this can be
done without great danger
to the vessel, and bring them
to safety ashore to some country
where they can place
their request for asylum.
If the refugee vessel
encounters ships
sailing on designated
national waters carrying
the flag of a
national government,
there is an obligation to
bring the refugees ashore
under the jurisdiction of that
particular national government,
which is then obliged
to process their asylum
application in accordance
with international law.
In the case of
the Aquarius, this
would have been Italy, which
rescinded its obligations
under international and EU law
and was subsequently condemned
by the Italian High Court,
as well as the European Court
of Human Rights.
Only a few years ago, we
would have clucked our tongues
at such episodes of
European xenophobia
and considered ourselves,
as Americans, blissfully
exempt from the perfidies
of regimes violating
the rights of refugees.
But no more.
The United States,
long considered
a country of immigrants and
proud of offering refuge
to the huddled masses coming
to its shores, in recent years
has joined in the othering and
criminalization of refugees.
There is firm evidence,
as I shall explain below,
that recent US
actions and policies
along the US-Mexico
border violate
the principle of non-refoulement
of the 1951 Geneva Convention,
incorporated into US law through
the Immigration and Nationality
Act of 1980.
As Nanjala Nyabola observes
in a trenchant article
which inspired the
title for my lecture--
her article is called
The End of Asylum--
A Pillar of the Liberal
Order is Collapsing,
but Does Anyone Care-- there
is enough blame to go around.
The United States, she notes,
is far from the only country
to slam its gates
on those fleeing
crumbling social, political,
and economic systems.
Around the world, rich
and poor countries
alike are pulling up
their drawbridges,
slashing the number of refugees
they're willing to accept,
and denying asylum
to those who might
have been admitted in the past.
In Africa, Asia, and South
America, she concludes,
the mood is much the same.
This is an article
from Foreign Affairs.
This is happening at a time
when the number and needs
of refugees are growing.
I think here is the first
item on your handout.
A report by the United Nations
High Commissioner of Refugees
notes that the number of
forcibly displaced persons
worldwide stood at 68.5
million at the end of 2017.
Today, it is around 70 million.
This is the highest
level on record.
And with no end in
sight to conflicts
in places such as Syria,
Somalia, Afghanistan, Iraq,
and the Central African
Republic, Myanmar,
and the Democratic
Republic of the Congo,
already, in 2016, 1
in every 113 persons
was displaced the world over.
Now, some distinctions.
Among displaced
persons, only those
who cross internationally
recognized borders
are called refugees.
The UNHCR classifies
40 million people
as internally displaced
persons, of whom 25.4 million
are refugees, but
among whom 5.4 million
stand under UNRWA, United
Nations Relief and Works
Agency, for Palestine
Refugees in the Near East,
and 3.1 are asylum seekers,
those who have, in fact,
initiated or been accepted to
initiate asylum procedures.
As the number of forcibly
displaced persons
has increased
worldwide, not only
has the number of
camps grown, but camps
have ceased to be places where
people are held temporarily.
Rather, they have
become semi-permanent.
Kenya's Dadaab, which you
see in the picture here,
is part of a mega refugee camp.
It's 20 years old, and
houses 420,000 people.
Palestinian refugee
camps in Lebanon
are 70 to 50 years
old, depending
on whether the
refugee population was
created in 1948 or 1967.
The refugees who live
in Palestinian camps
and, in some cases, have
spent their whole lives
there have become
what is called PRSes,
those in protracted
refugee situations.
Refugees, asylees, IDPs--
internally displaced persons--
PRSes-- those in protracted
refugee situations--
and stateless persons
are new categories
of human beings created
by an international state
system in turmoil, and are
subject to a special kind
of precarious existence.
As Hannah Arendt
anticipated in 1949,
their plight reveals
a fateful disjunction
between so-called human
rights, or the rights
of men in the older
locution, and the rights
of the citizen between
the universal claims
to human dignity and equality
and the real indignity suffered
by people who possess nothing
but their human rights.
From Arendt's justly
famous discussion
of the right to have rights and
the origins of totalitarianism,
to Giorgio Agamben's Homo sacer,
to Judith Butler's concept
of precarious lives, and
Jacques Ranciere's call
to the enactment of rights.
The asylum seeker, the stateless
person, and the refugee
have become metaphors as
well as symptoms of a deeper
malaise in the politics of--
late politics of late modernity.
I will characterize
dismal as originating
with the dual
commitments of the state
system to respect territorial
circumscribed sovereignty
or jurisdiction.
Presumably equal-- on
the one hand, sorry,
and the internationalization
of human rights on the other.
There are no easy solutions,
either in theory or practice,
to dual commitments to a
territorial sovereignty
on international
and human rights.
And my task in this lecture is
to explore their contradictions
rather than to offer
facile solutions.
I want to begin with the
development of the 1951 Refugee
Convention.
Then, after analysis
of the doctrine
or difficulties of
the '51 convention,
I will turn to contemporary
state practices,
which are, in effect, gutting
the spirit of the convention.
Then I'll turn to
the United States,
and will conclude with
some general suggestions
about how we might think
about the contemporary crisis.
Now, the 1951
Refugee Convention is
one of the seminal texts
of the post World War
II international human rights
regime, along with the UDHR
Charter of the United Nations,
the Genocide Convention.
And it was signed in
recognition of the dangers
to human beings of rendered
homeless and stateless
through persecution.
The articles relevant
for the convention
are already laid
out in the UDHR.
For the purposes of time,
you have the hand out.
Article 13 grants
everyone the freedom
of movement and residence within
the borders of each state--
crossing state boundaries.
Article 14 is the one that
encodes the right to asylum,
and says, everyone has the right
to seek and enjoy in countries
asylum from prosecution.
Of course, there are
some limits as to--
war criminals are
not entitled ipso
to be granted the
right for asylum.
Article 15 guarantees
naturalization or loss
of citizenship.
It states that everyone has
a right to nationality, which
has then repeated in the ICCPR.
But as we know, there is
no international convention
obliging states to
grant nationality,
or even what that would entail.
And may be minor,
but important point
in view of growing epidemic
of statelessness now recorded
is 10 million the globe over.
The preamble of
the 1951 Convention
acknowledges the Charter
of the United Nations
and the UDHR as the
legitimizing original documents.
Article A-1 of the
convention reads,
for the purposes of this
convention-- this is item 3--
the term the refugee
shall apply to any person
who, as a result of events
occurring before January 1st
1951, and owing to well-founded
fear of being persecuted
for reasons of race, religion,
nationality, membership
of a particular social
group or political opinion,
is outside the country of his
nationality, and is unable,
or owing to such fear, is
unwilling to avail himself
of the protection
of that country,
or who not having a
nationality, and being
outside the country of his
former habitual residence,
as a result of such events is
unable, or owing to such fear,
is unwilling to return to it.
Now, there was a
lengthy discussion
about the problem of
statelessness and refugees
during the drawing
up of the convention.
Subsequently, a
separate convention
was drawn up regulating
the conditional persons who
are stateless.
So I'm not going to go
into that issue here.
I will stay with '51.
But you can see that
the convention here
is trying to distinguish between
country of habitual residence
or country of nationality, which
a lot of refugees at the time
did not have because they
were de-nationalized.
The convention originally
restricted the scope
of the Article 1A to quote,
events occurring in Europe
before January 1st 1951.
With the 1967 Protocol,
the refugee status
was universalized outside Europe
because new refugee situations
have arisen since the
convention was adopted.
It's written UNHCR rights
and refugees concerned
may, therefore, not fall within
the scope of the convention.
Originally, the convention that
was signed by 26 state parties,
heavily representing
North America and Europe.
And was attended by
a significant number
of international
organizations and NGOs
who participated in
the deliberations.
Today, there are 146 state
parties to the convention,
but the universalization
of the refugee status
through the '67
protocol has given rise
to a series of discrepancies
between the letter
of the convention
and the purposes
it is being asked to serve.
In particular, the five
so-called protected categories
specified by the convention
have come under criticism.
So item number four
in the handout,
I'm not going to go and do--
I don't know if it is
doctrinal or philosophical,
but some analysis of
the '51 convention, OK?
First, the limits of the
five protected categories.
The convention reads, the
principle of non-refoulement--
that's a French word meaning
you cannot be sent back to where
you came from--
is so fundamental that no
reservations or derogations
may be made to it.
It provides that no one
shall expel or return
a refugee against his or her
will in any manner whatsoever
to a territory where
he or she fears threats
to life or freedom.
On the other hand, to
establish the well-founded fear
of a threat to life or
freedom, the convention
stipulates five
protected categories.
Race, religion, nationality,
political opinion,
and membership of a
particular social group.
Again, historical evidence
of the debates surrounding
the convention shows that
this particular social group
was introduced, I think,
by the Swedish delegate,
in particular, to
cover the questions
of Nazi persecution of people
with different abilities.
But today, the
category of membership
in a social group, MSG, has
been expanded a gender-based
on gender-related crimes such
as the protection of lesbian,
bisexual, intersex, and
transgender applicants
as well as those fleeing
practices of child marriages
and female genital mutilation.
Canada and the US have
led this in many ways.
Still, as noted by many
scholars with regards
to the five
protected categories,
this limitation seems to be a
matter of policy rather than
of principle.
It seems implausible
that persecution,
one scholar writes, is the
only valid form of necessity.
And of course, as
I'm sure many of you
are interested in these
issues today know,
there is no provision for
climate-related refugee
movements, which is going to be
the big issue now in our times.
OK, number two.
There are tensions between
the eurocentric discourse
and jurisprudence of
the refugee protection.
And the fact that the largest
numbers of the world's refugees
are housed in third
world countries.
For example, the 1951
Convention requires
proof of individual persecution,
imposing on refugees themselves
and the receiving states a
heavy administrative procedure
of examination and verification.
It has often been said that
the ideal refugee presupposed
by the convention is
the political dissident.
But in an age of increased
generalized violence,
ethnic cleansing, civil
wars, and armed confrontation
among non-state groups, in
what sense are such practices,
as specified by the
convention, adequate
to deal with the rights
of the most vulnerable?
And in response
to such concerns,
the head of State of the
Organizations of African Unity
formulated a convention
in 1974 in Addis Ababa
to govern the specific
aspects of convention
of refugee movement in Africa.
And there is also a 1984
Cartagena declaration
on refugees adopted in
Cartagena, Colombia.
The significance of both of
these regional conventions
is that they broadened the
definition of the refugee
conditions to include conditions
of generalized violence
in the country of origin,
foreign aggression,
internal conflicts, and massive
violation of human rights
and not just individual
proof of persecution, OK?
Add three.
In an attempt to respond to some
of the shortcomings of the 1951
Convention in the light of
the global changing situation,
the legal scholars James
Hathaway and Michelle Foster
propose a striking
reinterpretation
of the convention
and its protocol
by reading it in light
of further developments
in international human rights.
Refugee law or right maybe
the world's most powerful
international human
rights mechanism.
Noting that there is
no single body charged
with the authoritative
interpretation of the 1951
Convention, such as to
resolve conflictual issues,
they warn of the growing
risk of fragmentation
and regionalization.
And they propose what they
call a principled treaty
interpretation.
And Hathaway and Foster
acknowledged the difficulty
of linking the convention
to older developments
in international
human rights law.
But they argue
that quote, so long
as the risk of denial
of a broadly accepted
international human right
is sustained, in that sense,
as a practical matter, it
is ongoing or systematic.
It can reasonably
be said that there
is a risk of being persecuted
of the kind that may engage
and convention obligations.
And in five, I list the relevant
international human rights
conventions of the post
World War II period
in the light of which Hathaway
and Foster attempt to interpret
the '51 convention.
And it seems to me that,
from the standpoint
of legal scholarship,
this is now
the most contentious
and maybe also the most
original development.
Point number four.
One of the biggest challenges
facing the convention
is the distinction between
political persecution
and economic deprivation.
It is well established that
the '51 convention does not
recognize conditions of
extreme poverty and material
deprivation as legitimate
grounds for requesting asylum.
Economic migrants are
considered individuals
who raise purious claims
to protection and refuge.
But how valid is this binarism
between deserving refugees
and economic migrants?
Why are extreme
poverty and material
deprivation not legitimate
grounds for escaping from them?
Persecution on the basis of
race, religion, and nationality
and political
opinion that result
in unemployment or
underemployment,
job discrimination as well
as economic marginalization.
There just is no plausible
way to really try
to make this
distinction, I think,
theoretically and in practice.
But as I will argue
in my conclusion,
it's one of the hardest
chestnuts to swallow
from the standpoint
of state practice.
So let me just move
quickly because I
am realizing that this first
part has taken a little longer
than I expected.
Point number five, which is
that a perverse consequence
of the distinction
between deserving refugees
and undeserving
economic migrants
is that those who gain
convention refugee status
become a kind of aristocracy
who are deeply envied by others.
There are reports--
ugly reports--
of Afghani and refugees in Greek
refugee camps, for example,
of stealing Syrian
refugees documents
or falsifying their
own identity papers
to pass as Syrian
since the latter
are recognized as
convention refugees, OK?
So this is one point
when you can sometimes
see that the law, despite itself
by creating these categories,
also subjects individuals to
humiliation and unexpectedly
violent consequences.
Now, as Matthew Gibney observes,
increasingly the term asylum
seekers became shorthand in
public and media discourse
for economic refugees, people
taking advantage of the asylum
route to escape normal migration
control, immigrants in pursuit
of the benefits of welfare state
at the expense of citizens,
or especially after
September 11, 2001,
as potential terrorists
or security threats.
Economic migration and movements
of refugees fleeing conflict
became increasingly
entangled and criminalized.
Gibney's reflections lead
him to the haunting phrase,
1,000 little Guantanamo's.
And to the conclusion that we
have reached the reductio ad
absurdum of the contemporary
paradoxical attitude
towards refugees.
Western states now acknowledge
the rights of refugees,
but simultaneously criminalize
the search for asylum.
Now, I want to talk
very briefly, again--
I'm sure many of you want me
to get to what about the United
States--
very briefly about
state practices
of deterritorialization.
This is an important
development.
Now, by using the phrase 1,000
little Guantanamo's, Gibney
means--
and here he is assuming
that Guantanamo does not
stand under any kind of
sovereign jurisdiction
of the United States, which
is not true after the Hamdi
and Hamdan decisions, OK?
But by 1,000 little
Guantanamo's what
he means is that
centers of power
have been created where
states and they're formal
and informal agents act free
from the constraints imposed
upon their activities by courts,
international and domestic law,
human rights groups,
and the public at large.
So 1,000 little
Guantanamo's really
refers to what has also
been called the creation
of legal black holes.
And this is really spreading
in the state practices
of encountering refugees.
Such centers where
states encounter refugees
emerged through the use of
exclusionary visa measures,
imposition of carrier sanctions
on airlines and shipping
companies, through the
employment of immigration staff
on airlines, or even on
ships, vessels, and planes.
Declaration of airports
as international zones
in which states would not be
obliged to offer those in such
places the protections
available on state territory.
For example, the
Frankfurt airport
has a huge building
where refugees still
are held because
it's suppose they
are not on German
territory, and thus, covered
by the European Convention
on Human Rights.
Thus, states are expanding
the encounter with refugees
to sites that escape
the supervision
of their national jurisdictions.
A process of
deterritorialization
analogous to the search
for tax-free havens
by international companies.
That is, escaping from national
jurisdiction is developing.
But not only in this
paradoxical process
of deterritorialization
there is an expansion,
there is also a shrinking.
And the shrinking here--
the best example here is in one
of the most radical measures
of this kind, Australia
in 2001 excised
Christmas island's agent
called Ashmore Reef, the Cocos
Islands, and other territories
from its migration law zone
so that the landing of asylum
seekers on these territories
did not engage the country's
convention obligations.
And now, of course, Nauru
is the site of these refugee
camps or the legal black holes.
There has been some
change back and forth
in the Australian
government's practices,
but this is still going on.
A consequence-- and I think
this is important from
the standpoint of both
normative politics and the law--
a consequence of these
deterritorialization strategies
is the de-linking of the
bond between territory,
jurisdiction, and the public
in whose name and with whose
authorization law and coercion
in democratic societies
are supposedly exercised.
Scholars call these processes
border induced displacements
as well.
And argue that an ethical
and political distance
is created between
migrants and refugees
upon whose body the law is
exercised and the National
Public in whose name
such law functions.
The most significant example
of such extraterritorialization
is the agreement between the
European Union and Turkey.
But I'm not going
to go into that.
If you want to ask any
questions about it,
we can further discuss.
OK, and what about
the United States?
I'm sure many in this
audience probably
know more about some of
these developments than I do.
American law is quite
difficult. But here we go.
As has been often noted by
scholars of international law,
although the United
States has been
at the forefront of many human
rights treaties and conventions
in the post World War II
period, its own compliance
with these and accession
to them can only
be characterized in
Michael Ignatieff's words
as exceptionalism morphing
into exemptionalism.
The US basically exempts
itself from all the treaties
that it has, in
many cases, taken
the leadership for the
international community
to accept.
Thus, although the United
States was a high contracting
party to the 1951
Geneva Convention,
it only acceded to the
'67 protocol in '68,
but did not pass legislation
implementing this convention
until 1980.
After the Vietnam
debacle, Congress
passed the Refugee Act of 1980,
which established procedures
for admitting refugees and
handling asylum applications.
Nevertheless, the United
States avails itself
of all the measures
of state behavior
that I listed above to
circumvent or dispense
with its obligations under
the Refugee Convention,
and has been doing this
for quite some time.
One of the first examples
of a bilateral agreement,
such as that signed
between Libya and Italy
or the European
Union and Turkey,
was the case involving the
interception of Haitians,
I'm sorry, on high seas, and
their forcible return to Haiti.
In 1981, President
Reagan entered
into an agreement with
the Haitian government
to interdict vessels sailing
for the United States
with only short refugees
screening interviews by coast
guards conducted on the ships.
According to the so-called
Tonton [INAUDIBLE],, in 1992,
responding to a large increase
in Haitian immigration
flowing from military
coup in that country,
President Bush ordered
interdiction and returned
with no screening whatsoever.
Although President Clinton
had denounced the Bush policy
during the
presidential campaign,
the Clinton
administration continued
to forcibly interdict
all Haitian boats headed
toward the United States.
Nor is the practice
of extraterritorial
detention unfamiliar in the US.
Haitian refugees who have
tested positive for HIV
were detained at Guantanamo Bay
because the statute in force
at the time made persons
with communicable diseases
of public health significance
excludable from US territory.
The law was amended in 1993.
Through a mass
prejudgment of refugees
without proper interviews, and
the routine detention of asylum
seekers, the United States
contravened the spirit, if not
the letter, of the convention.
Now, all this
pales in comparison
with the transformation
of American immigration
and refugee law in the wake of
the attacks of September 11,
2001.
Not since prohibition has a
single category been prosecuted
in such record numbers by
the federal government,
writes Ingrid Eagly in an
article in the Northwestern Law
Journal.
Judith Resnik, my colleague
at Yale Law School from whom
I've learned a great
deal, notes that quote,
in the years between
2008 and 2015,
immigration prosecutions have
represented more than half
of the annual federal caseload.
In addition to
criminal prosecutions,
incarceration and
deportation have
become the preferred punishment
for dealing with migration
felonies, leading to the
emergence of a system called
crim imm or crimmigration.
As early as the fall of 2014,
the Obama administration
had begun detaining mothers
and children from the Northern
Triangle countries, namely
El Salvador, Honduras,
and Guatemala.
Again, scholar Shoba Wadhia
recounts these developments.
She quotes, on
February 20th, 2015,
a federal judge certified the
class of mothers and children
and issued a preliminary
injunction blocking DHS policy.
Undeterred, in January 2016,
DHS began arresting mothers
and children in order to
detain and deport them.
In some cases, they were
transferred to family centers
in Texas and Pennsylvania.
I'm afraid that the so-called
emergency at the border
has been a long
time brewing, and is
more continuous with democratic
administrations policies
than has been acknowledged or
we would like to acknowledge.
Now, a brief filed by Elora
Mukherjee and the Center
for Refugee Rights out
of Columbia University
and other colleagues, a brief
called Al Otro Lado versus--
the secretary then,
Kirstjen Neilsen.
I'm quoting from the brief
says, quote, the Immigration
and Nationality Act and its
implementing regulations set
forth a wide variety of ways
in which such individuals may
seek protection in the USA.
More precisely, the INA
gives any non-citizen
who is physically present,
or who arrives in the United
States, a statutory right to
apply for asylum, regardless
of such individual's
immigration status.
And under Article 8 USC and
code of federal regulations
CBP must refer for a
credible fear interview
any non-citizen who presents
itself at the point of entry
and indicates an
intention to apply
for asylum, or on the basis
of fear of persecution.
This is a non-refoulement
clause integrated
into the United States.
Instead, what has happened
through a combination
of tactics involving
misrepresentation
of refugee rights and
US law by officials,
outright lies in many
cases, coercion, deceit,
and the creation of an ad hoc
procedure called a waiting
list, in joining asylum seekers
to return to Mexico to get
a number for their interview,
and then to cross over
to the United States.
The customs border
patrol officials, CBP,
and the Department
of Homeland Security,
have most likely violated
US and international law
and created an emergency
situation in the US Mexico
border.
The emergency is
not only caused,
or was caused, by the
number of refugees
arriving per month, about a
year, year and a half ago.
There are legitimate
logistical and personal issues
that need to be handled,
such as the dearth
of immigration judges.
But the real emergency is that
this crisis may be manipulated,
and is being manipulated, to
become a state of exception
in which the Constitution
is suspended,
and the most intense
and extreme antagonism,
in the words of Colin Schmidt,
between friend and enemy
unfolds.
OK, moving towards a conclusion.
How did we get here?
Why is it the case that
most liberal democracies,
such as the United States,
Germany, Italy, the UK, France,
Australia, and the
list can go wrong,
are abdicating their
commitments to human rights,
violating international law, and
creating zones of lawlessness.
I think part of the
answer is that-- and I'll
be brief here-- 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.
In the age of liquid modernity,
to use a felicitous expression
of Zygmunt Bauman's,
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 that are
already suffering
exacerbates fears among
the native population
that they, too,
could find themselves
in the predicament of the
unwanted and vulnerable
stranger, deserted or
abandoned by their own state.
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 done
but also to forbid cruelty.
Cruelty inflicts
not only physical
harm and torture on its subject,
but it subjects them, sorry,
to humiliation and indignity.
Cruelty is spreading
in liberal democracies
at the cost of those
who are most vulnerable,
whether within or
outside our borders.
How can the politics
of cruelty be avoided?
I'm going to offer now, after
this very large picture,
a number of concluding
thoughts which are invitations
to a conversation.
The issues that I'm
still working on.
I think first it is
necessary to decriminalize
the transnational movement
of peoples, including
that of refugees and migrants.
To decriminalize does
not mean open borders,
which I'm not advocating.
But it does mean
regulating porous borders
under international law.
Today, by contrast,
what we have is
the treatment of the refugee as
a trespasser and a lawbreaker,
rather than as a human
being endowed to the right
to have rights.
States build walls,
perfect border controls,
create electronic
surveillance fences,
and spend millions forming
quasi military border
patrols of dubious political
orientation and loyalty.
They are neither
police nor soldiers.
Who are they really?
Members of the CBB.
The major stumbling
block one has
to admit in theory and
practice to the '51 convention
remains the unstable
and fluid distinction
between the
persecuted refugee and
the needy economic migrants.
In many cases, this distinction
is bogus and untenable.
Yet, to assure continuing state
support for the convention
as well as public
solidarity with the refugee,
some such distinction will
need to be maintained.
The work of public
enlightenment,
which is what I
think we are doing,
is to uncover the historical
and anthropological dimensions
of human movement
throughout the centuries,
and by deflating
what I will call
the ontology of containment.
And what I mean by the
ontology of containment
is to consider the
refugee problem always
from the standpoint of the
recipient state of the one
who comes to us, of the
one who destabilizes us,
of the one outside who is coming
in or who wants to come in.
The perspective of
the state is that
of 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.
You would think that
in the United States,
one would not have
needed to emphasize that.
But look at Australia also,
a country of immigrants.
One's reaction, read
refugee policies.
Human mobility is an
anthropologically deep
seated driver of
the human species.
And the regulation
of human mobility
through national borders is
quite recent in human history.
This is not a plea for
a world without borders
because I believe that
democracies require
jurisdictional boundaries.
We must know in whose name
the law is being enacted
and applied, and how we
can request accountability
from those who enact it.
But these jurisdictional
boundaries
need not be co-terminus with
militarily armed and violently
guarded border regimes.
If we move our gaze
below as well as
above the level of
the state, we see
that municipalities,
regions, border lands,
transnational alliances shape
and define the interdependency
of citizens and strangers.
A very important point
to understand migration
in terms of border lands, not
bordered lands, but border
lands, to consider
the commerce that
used to exist between
Tijuana and San Di-- or city
Juarez and Texas prior to the
criminalization of the border.
We need to move to a
broader perspective
beyond the ontology of
containment, such as formulated
by Michael Doyle and his
colleague [INAUDIBLE]
proposal to model international
mobility convention.
I recommend everyone to
take a close look at it.
This convention
seeks to elucidate
the rights of all humans
crossing international borders
in accordance with transnational
human rights standards
for all economic migrants
as well as refugees,
students as well as tourists.
And here the move,
is in some ways,
to take the exceptionalism
from the onus of being
a refugee by putting a broader
convention about mobility,
and maybe also does weaken
this sharp distinction
between the refugee convention
and the economic migrant
by regulating rather than
criminalizing global migratory
movements.
To conclude, the
1951 Convention is
one of the most important
international human rights
documents in our world.
Ushering a new
sense of obligation
among states towards human
beings and toward one another.
It is in peril today everywhere.
But the way forward is
not to weaken it further,
but rather to embed it
in a broader perspective
of cosmopolitan
justice that proceeds
from the ubiquity
of human movement
throughout the
centuries in search
of freedom and opportunity
relief from persecution
as well as the hope for a better
future for one's children.
No liberal society can
remain true to its values
if it does not also
respect and uphold
the rights of the
needy strangers who
come to its borders.
Thank you for listening.
PRESENTER 2: Thank
you very much.
I don't know if I'm supposed to
use a mic to do the questions.
I really want to thank
Professor Benhabib very
warmly for a terrific lecture
that really marries philosophy
of law in exactly
the way that we
have wanted from the beginning
of this series of doing
lectures.
And thank you all for coming.
Of course, the
move to noon hour,
though it allows so many
more people to come,
it shortens the time.
So we have really about
15 minutes, let's say,
for questions.
And I'm going to
ask the people who
are having lunch with
Professor Benhabib
later on to hold
your fire till then.
OK, David.
AUDIENCE: Two questions.
One of them is the
focus of your lecture
is on people presenting
themselves at borders.
And if the majority of
people that are refugees
are in camps like that--
I might guess there's 5
million people in camps.
It really hasn't been
decided, the number.
But either way, it's
very, very large.
And [INAUDIBLE] has gone down.
Maybe that's the key.
The United States
has [INAUDIBLE]..
It is taking years
for the United States
to accept all those people.
The question is, isn't the
real problem that we're not
[INAUDIBLE]?
And then the second
question is on [INAUDIBLE]..
You attributed the
treatment of the people
at the border of the United
States as a racist thing.
[INAUDIBLE]
But I guess the question
is, how have you
excluded other possibilities
from that treatment?
So the treatment
has been consistent
across different
administrations.
In Spain, the government hasn't
been accepting many people.
Obama did pretty much
the same thing as Trump.
[INAUDIBLE] was under Obama.
How do we know what the
real cost is of [INAUDIBLE]??
PRESENTER 1: How do we know that
state's rejection of refugees
given that it shows--
AUDIENCE: Consistent
across governments
all around the world-- left,
right governments, you name it.
The questions is whether
something else is
causing it other than racism.
PRESENTER 1: Yeah.
The first question.
I think that you are quite
right that one should also
focus on the condition of
refugees in these camps
because the number of
camps are multiplying.
I don't know that I want to
say this is all we need to do,
but I agree with you that
this is incredibly important.
And that the camps are a site
of some kind of deep failure
of the state system.
And Greece, right?
There are still close to
50,000 refugees on the islands.
And at the beginning, Greece was
very receptive to the refugees,
but now people are
beginning to turn--
have already begun to turn
against them because they
cannot rent their hotels,
Airbnb's and so on.
Now, why is this happening?
This is happening, I mean,
if I can't get technical,
because the European
Union will not accept
refugees to be airlifted, OK?
I mean, it's not quite at the
level at which you were asking
this question, but
sometimes there
are specific difficulties
that create that condition.
Some of these refugees-- a lot
of them want to go to Germany,
many want to go to Sweden,
the Netherlands, et cetera.
In some cases, refugees from
the camps can be resettled.
They are being stuck there
because states cannot agree
among themselves.
I mean, as you can tell, I'm
more of a European scholar.
They cannot agree among
themselves about burden
sharing.
And so because they can't
agree, they get stuck there.
Now, an interesting
case, in my opinion,
is what's going on
with Syrians in Turkey.
Turkey now is the
largest refugee
receiving country in the world.
something like 3.6
million, right?
And Turkey is not a signatory
to the '67 protocol, which
is to say that the Syrian
refugees who come to Turkey
are under Turkish law.
Now, there are a few
United Nations camps
where about 10,000
refugees are awaiting entry
into the United States.
These are families who
have been vetted and so on.
It's not happening
under President Trump.
Now, what's going on?
I mean, this is really
an interesting case.
Not only because I was
born in Turkey and so on.
But what is going on is
that, in this instance,
the majority of the Syrians are
mixing in with the population.
And this is causing
conflicts in workplaces.
There is-- I'm going to try
to come to the point here,
but it's fascinating.
There are now tremendous issues
about under age marriages.
The Syrian families practice it.
Turkish law now is having
to adjust itself, et cetera.
But why is this happening?
It is happening, to
some extent, because
of ethnic and
religious continuity.
That this kind of
refugee condition
is not giving rise to the
nightmares of the Afghanis
and the Iraqis who are stuck
in Greek refugee camps.
An authoritarian regime that is
managing this somewhat better.
So I think that, just to
bring this to the point,
most refugees want to
be moved out of camps.
They want to become
permanent residents,
or they need to be
given state status.
And of course, now we have
the situation of Myanmar
with one million Rohingya who
are hanging out in suspension.
I agree with you that we
should also focus on this.
I don't believe that this
is just the United States
responsibility.
So you had this statistic
about $650 650 people.
It's not just our
responsibility.
Our responsibility is to go back
into a position of leadership
and integration, and saying
let's get on with it.
The United States matters.
It matters a lot.
What is done in this country
gives every one of us
a license to violate
international law
and to continue
certain practices.
So it's not the moral
task of the United States
to accept all of the
world's refugees.
They don't even
want to come here.
They want to go up--
OK.
Why are there
practices of rejection?
Two answers.
I'm sorry, I'm being
a bit long winded
if you had other questions.
But these are-- you said
you didn't say racism.
Well, I didn't say racism
because Donald Trump is
a racist, but the continuity
in American administration
policies towards Central
America has not always
been run by racist presidents.
I mean, our country,
demographically,
we are going to be a brown/black
country in the next decade.
So I don't want to just
throw around the term racism.
We know what this
president is, but am I
going to call all
of United States
treatment of refugees racist?
Well, in the case of Haiti,
there's a dimension of that,
for sure.
Look, you can push
me against that, OK?
You can push against that.
I'm just putting a
position forward here.
But there are many--
41 states said to
the administration,
we are happy to
receive refugees, OK?
Let us not forget that.
The federal government,
its role is not--
it is according to the law,
but 41 states and communities
have said that it is OK.
I think I'm going to stop there.
There is a lot to be to
be said, but I feel as
if I'm taking up too much time.
PRESENTER 2: Yes.
Here.
AUDIENCE: Hi.
One of your conclusions--
one of the points
you made in your
conclusion is [INAUDIBLE]
decriminalize movement.
And I have one worry about
the ways in which states
might go about doing that.
So one way that states have
decriminalized some movement
is by creating complimentary
forms of protection,
things like temporary
protected status
or [INAUDIBLE] of the
United States, things
like humanitarian
visas in France.
And I'm wondering what
your thoughts are,
and how those forms of
complementary protection
might actually be misreading
the refugee convention.
PRESENTER 1: Yeah, thank you.
Excellent question.
It's kind of between a
rock and a hard place.
I would say that if by
criminalization we also mean
criminal prosecution,
detention, deportation,
there is something about
the state practice,
in particular, of
creating detentions
and camps in our century.
And now, I'm talking in
political theory terms,
that I think we
have to go against.
Partially because-- I mean, not
partially because the creation
of detention camps, you see,
as a way of states for dealing
with intractable problems, is
a formula that cannot repeat
itself.
I mean, I'm making
a point that I think
is historically quite valid.
Not only prisoners of war,
but the undesirable refugee,
the migrant with
felony convictions,
and all the others.
It's very easy, isn't
it, for the state
to seek that one solution.
And I mean, there are political
thinkers like [INAUDIBLE] who
would say, the camps are the--
there are a continuous
project of liberal modernity.
I don't want to say that.
I want to try to
see if there are
any normative and institutional
elements in the system that
can prevent us from the practice
of seeing detention and camp.
But your question is
really an excellent one.
There are some articles in
the Refugee Convention--
and forgive me if I cannot
cite to you verse and number,
which actually urges states
to try to integrate refugees
into the economic market and
resolve the cases as quickly
as possible.
But I will add one more thing.
It is a moment of embarrassment
in the Netherlands
where Martha has also
held many lectures
and is very well known.
When the state
decides, in some cases,
that the refugee is not
to be given asylum status,
this is called the--
what they do is
communities, basically,
do not cooperate with
the state, and they
exercise something called
duldig, which in German it
means being patient.
But the Dutch practice of
duldig is the community simply
refuses to denounce the person
who is out of status, OK?
And I'm going to say out
of status because I'm
sick and tired of this language
of criminality and derelict,
OK?
There are many of you who
are foreign students here.
You can become out of
status within the course
of a month or two by some
kind of thing that can happen.
So the term out of status is,
I think, is a more humane term.
But you have
countries where people
are exercising some form of
civil resistance, some form
of civil disobedience, and
just basically protecting
deportation of these migrants.
And we have it in this
country as well with
many doctors who are
going down to the border
and administrating
medical care when
they're actually told that
they shouldn't be doing this.
But it's a tough question.
I'm thinking about
it with you, OK?
Thank you.
PRESENTER 2: OK, we have time
for one more short question.
Yeah.
AUDIENCE: I don't
have a question,
I have an observation.
[INAUDIBLE] seven countries
where refugees are coming from.
I don't think there's a
solution to the refugee problem
until the fundamental
problem is solved.
These nations where people are
fleeing want jobs [INAUDIBLE]..
Why isn't the effort of the
Western world, Western Europe,
North America,
concentrating on making
these non-functional
nations function
so these people would want
to stay where they're at?
This refugee
problem is not going
to be solved by just
taking more refugees.
The fundamental problem is
dysfunctional, un-functional--
whatever word you
want to call it--
nations that [INAUDIBLE].
It's not a question,
just an observation.
SEYLA BENHABIB: Well
I think that there
is some truth, of course,
to what you're saying.
Most people don't want to leave
their countries as refugees,
believe you me.
People don't pick up
and track their children
for 1,000 miles from
Guatemala, Honduras.
They don't do it just
because they want to.
They are being driven
by extreme conditions.
Maybe a few are not, but
very, very, very few.
Is it also a question
of establishing justice
in dysfunctional governments?
Of course it is.
But we are more implicated
than we would like to think.
And there is some work showing
that the United States drug
enforcement policy, in
some of these countries,
which are through
which drugs flow
have themselves
created, in many cases,
the paramilitary
organizations that are now
challenging the governments.
So it's not always--
everything is not always
the United States fault, OK?
But this country is hegemon.
In this continent,
it is a hegemon.
And in the case of
what's happening
in the so-called triangle
states of Honduras,
El Salvador, Guatemala,
our drug policies
have had a great deal to do
with some of the functionality
of these governments.
PRESENTER 2: Well, I'm
so sorry, but we have
to get out of the room now.
Because we could have gone
on for so much longer.
But I do want to thank
you, Professor Benhabie.
[APPLAUSE]
