“European Refugees Policies: 20 key points” IV Bilbao European Encounters. Refugee’s Europe

The ideological assumptions of the current European model of migration and asylum policies leave open the risk of a regressive evolution of social-liberal states toward criminal-police states. This would lead to an extremely dangerous setback of the basic standards of Democracy and the Rule of Law and the institutionalization of various manifestations of exclusion and subordiscrimination, which seem to follow a colonial logic. In this way, the basic theses of <necropolitics> proposed by Mbembe following the footsteps of Foucault and Agamben would be confirmed. I will attempt my dissertation in 20 key points.

 

  1. It seems increasingly clear that there is a need for a philosophical approach -philosophical, political and legal at least- regarding the issue of forced migration, a concept in which I obviously include refugees, but also a large part of the migratory movements that tend to be classified as economic or labour migration.
  2. What is the meaning of a <philosophical approach>? The primeval philosophy is political philosophy, that is to say, a reflection on how to build a <good>society, a Decent Society (Margalit, 1996).
  3. It should be added that, in such an approach, which is of practical reason, the key -the minimum core- is the respect and effective guarantee of human rights requirements. These are, in turn, the minimum content of the Rule of Law, its legitimacy test.
  4. On october 2015 I published a reflection on soi-dissant <refugee’s crisis>, h.e., what was happening, and feared it would continue happening, under the title: Mediterráneo: el naufragio de Europa (“shipwreck of Europe in the Mediterranean”). I believe that judgment remains valid today.
  5. We are still witness to the wreck of the Rule of Law, if not its perversion, that is,the use of the Law (laws, administrative decisions and, to a lesser extent, jurisprudence) against the rights. This is the case, for instance, through the juxtaposition of the requirements set to maintain the European area of freedom, security and justice, and on the other hand, the respect for the rights of those who come to our borders and want to enter that space.
  6. The message that the european immigration and asylum laws is sending to its european citizens is one of a disjunction between <our rights>, that is, our level of well-being, freedom and security, and the rights of those others. If we want to extend the rights to those others, we will have to cut back our own, cut back our well-being, our security, our freedoms…
  7. In short, we are replicating what I referred to in previous works as the <syndrome of Athens>: the construction of a society with standards of excellence in regard to the truth, to beauty, to the good life, but at the cost of a growing process of exclusion, as explained by S.Sassen (2014), who has recently condemned in one of his latest works that logic of expulsion which accompanies the current stage of development of the global market’s process. For his part, Z. Baumann (2008) denounced the existence of an Archipelago of excepsions, functional to what he portrayed as the “human waste industry”, which feeds on human beings constructed from a status of precariousness and expiration, easily “replaceable”: migrant workers.
  8. Therefore, the emblems of thisconception would be the very institutions created within the framework of European migration and asylum policies: Immigrant detention centres (CIES/CRA), or the illegal transformation of refugee reception centres into detention centres, under the pretext of a necessary task of triage (de Lucas 2013, 2014). These are the hotspots, the place where the fate of those who try to reach the European continent is decided: only the genuine refugees may continue and even then, not all of them: note the failure of the timid operation of refugees relocation which ended in October 2017, very far from the goal of 170,000, due to the fierce resistance of the Member States’
  9. In that way, as denounced by professor and president of the ACLU David D. Cole (2000), a neocolonial logic is both accepted and practiced not only externally, but inside of our own A logic that rediscovers slavery -irregular migrant workers- and accepts it, and even contributes to its practice on our very doorstep (the case of Libya). Indeed, we allow the existence of slave markets, of ill-treatment, of rape and torture at our doorstep (again, this is the Libyan case). And we even encourage it via the externalisation of the migration and asylum policies; basically understood as policies of policing and public order, and even set out as Defence policies, equipped with military resources against an enemy that constitutes an enormous threat.
  • All of these are reason enough to argue that the European model of migration and asylum policies, seems to follow the logic of the necropolitics argued by the cameroonian philosopher Achille Mbembe, following the Foucault critique of biopower and also the thesis of Agamben (Mbembé, 2003, 2016). Indeed, this models combines in proportionate doses the security/defence arguments (immigrants and even refugees as the enemy, an enemy at our doorstep or an infiltrated enemy) and the logic of the market (immigrants as goods, as work tools whose presence is only justified if they produce benefit). All of this at a cost of more than 30.000 dead in the Mediterranean whose names –die List– have been published as a result of an enormous research work of the German newspaper Der Tagespiegel, on November the 9th,
  • The creation of a pathological imaginary of immigrants and asylum seekers results from the use of fobotypes through these policies’ legal instruments and the complicity of the media. We have gone from a standpoint of indifference to one of ethnic contempt, customary of a colonialism we are now re-discovering. A view that points at us as the civilised and the others as the barbarians or savages (Todorov, 2008). A view that fosters within our democracies the growth of the society of contempt, as explained by Honneth (2007, 2012).
  • In effect, all of this conceals a decadent society, a passive consumer of these fobotypes, of necropolitics, which feeds on We pay to get rid of that fear, that load we refuse to see: we externalise, as it was already intended at Sevilla’s European Council of 2002, or with the bilateral agreements with Gaddafi, which serve as precedent of the alleged agreement with Erdogan, in the Valletta agreement of 2016, from the Africa Plan; a hypocrite cooperation policy that only seeks to keep dominating those who we are supposedly helping, to keep corrupting its elites and forcing those Governments to violate the rights of their own people and the people who attempt to pass through those States.
  • From a legal standpoint, it is important to understand that the logic inspiring such policies carries the risk of stripping down the meaning of two fundamental rights:
    1. The right to life: one cannot ignore the fact that, for instance, regarding the victims in the Mediterranean, there is plenty of evidence of crimes of omission of relief which, moreover, are in flagrant violation of basic principles and obligations erga omnes of the International law of the sea, encoded in the Montego Bay Convention. The lives that are lost seem to be anonymous, statistical data for which no one should bother finding out responsibilities for every one of these deaths.
    2. The right of asylum: our policies are oriented to hinder its exercise, preventing legal and safe routes, making it as hard as possible to apply, even stripping down the basic content of the concept of asylum, as it occurs when (law passed in Denmark in 2016) refugees are submitted to a requirement of copayment for the benefits entailed by the recognition of the right to asylum, according to the Geneva Convention of 1951.
    3. In particular, there is a practice occurring in the Mediterranean at this time in the framework of the operation EUNAVFOR MED (euphemistically renamed Sophia), that gravely affects the right of asylum: the interception and forced return of migrants/refugees in the waters of Libya or next to its territorial sea,may well constitute a systematic violation of the principle of non-refoulement (ergo jointly responsible for the human rights violations of the people on Libyan soil). The minute the States of the EU involved in this operation intercept these people, they take them under their jurisdiction. Ergo, they have a legal obligation to apply extraterritorially the right of asylum’s standard legislative procedure, the principle of non-refoulement and the procedural guarantees.
  1. What is certain is that when refugees are no longer predominantly European, they no longer matter: the case of the Rohingyas (more than 800,000 in Bangladesh, where the largest refugee camp in the world is currently under construction) or the Southern Sudanese who have come to Uganda in number of 900,000: Meanwhile, the Europeans are overwhelmed by 160,000
  2. The true notion of refugees, beyond that provided by the Geneva Convention of 1951, is the proposal by the UN High Commissioner for Human Rights, Zaid Ra’ad Al Hussein, making real the dictum of Bauman on the <human waste industry>: “These are people with death at their back and a wall in their face”.
  3. In order to do so, we have not hesitated to pervert the legal language through fallacies that have emptied the meaning of the notion of asylum, that stigmatise immigrants at the expense of refugees and employ refugees as a source of danger, a threat, when they are the ones fleeing the danger that threatens them.
  4. Even more, refuge is twisted into a matter of moral platitude, of good conscience, of misunderstood solidarity, which is no longer a right and a duty, but a kindness issue. Therefore, its place is not that of a requirement of respect for human rights, but that of alms and NGOs’ altruism. And yet, it does not prevent a twisted stigmatisation of NGOs when they aren’t docile, presenting them as objective accomplices of the mafias.
  5. Ultimately, what is this all about? In short: Who has the right to what, and why. We are witnessing the emptying of the concept and very foundation of human rights. It is a case of curtailing the rights and curtailing the subjects of those rights, meaning: fewer rights (for social and economic ones become goods) and for less subjects (only nationals themselves), from the ambition of the market’s ideology itself, that is, the ambition of deregulation and the transformation of citizens into passive consumers (Ferguson, 1767).
  6. Social cohesiveness is thus destroyed, reducing us to possessive individualism, to the atomism that deflects us towards Cain’s syndrome: I am not my brother’s keeper and even less of those who I do not recognise as my brothers
  7. Faced with this, Jhering’s lesson, understanding law as a struggle for human rights, which in essence, is the message of emancipation, ofretaking the reins of our lives, of being lords of Law and of political life instead of a flock that chooses voluntary servitude (La Boétie). Because the oppositeof obeying like a flock is not disobedience (this is merely a tactic, an instrument), but to regain command, to be the masters of our lives and of politics and of the L

 

 

 

 

References

  • Agamben, Giorgio (1995), Homo sacer. Il potere soverano e la nuda vita, Torino, Einaudi.
  • ————–(2003) Stato di Eccezione. Homo sacer II.1, Torino, Bollati Boringhieri
  • Bauman, Zygmunt (2008), Archipiélago de excepciones, B.Aires/Barcelona, Katz
  • Cole, David D. (2000), No Equal Justice: Race and Class in the American Criminal Justice System, N.York, The New Press.
  • ———–(2003), Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, York, The New Press
  • de Lucas, Javier (2015), Mediterráneo: el naufragio de Europa, Valencia, Tirant lo Blanch
  • —————(2014) “Guantanamo is still there and the number of Guantanamos is multiplying”, Critical Legal Thinking, 01 29th 2014
  • —————(2013) “Between Repression and Paternalism: European Asylum and Immigration Policy after the Lampedusa Tragedy”, Critical Legal Thinking14th 2013
  • Ferguson, Adam, (1767), An essay on the History of Civil Society
  • Foucault, Michel (1997), Il faut deféndre la societé: cours au Collége de France 1975-76, Paris, Seuil
  • Honneth, Axel (2012), The I in We: Studies on the Theory of Recognition, Polity Press
  • ————-(2007), Disrespect: The Normative Foundations of Critical Theory, Polity Press
  • Jhering, Rudolf von (1872), Der Kampf ums Recht
  • Mbembé, Achille (2003), “Necropolitics”, Public Culture, 15/1, pp. 1-40.
  • ———–(2016) Politiques de l’inimitié, Paris, La Découverte.
  • Sassen, S., (2014), Expulsions: Brutality and Complexity in the Global Economy, Cambridge.Mass, Belknap Press.
  • Todorov, Tzvetan (2008), La peur des barbares: au-delà du choc des civilisations, Paris, Robert Laffont

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