Can Europe Make It?

European union – a cosmopolitan legal space

Porous borders really mean the acceptance that human beings move across borders, and that they should be able to move without being criminalized. The political philosopher in interview with Slawomir Sierakowski.

Slawomir Sierakowski Seyla Benhabib
28 September 2015
Rescued refugees shipwrecked off Libya arrive in Palermo.

Rescued refugees shipwrecked off Libya arrive in Palermo. Demotix/ Antonio Melita. All rights reserved.

Slawomir Sierakowski: Who are the people flocking to Europe now? Who are they, what should we call them?

Seyla Benhabib: There is a lot of discussion over this terminology, whether we should call them refugees or migrants. These people are coming from Syria, Afghanistan, Iraq, Eritrea, and Libya. All of these countries are in states of either civil war, as in Syria, or in post-war conflict situations that still have not settled down, as in Iraq, Afghanistan, and Libya.

According to the 1951 Refugee Convention definitions, individuals who are fleeing their country because of persecution – and this persecution can take the form of civil war, threat to life, based on ethnicity, religion, etc. – are to be considered Convention refugees. I think it is hard to disagree that these are areas of the world where there is civil war, where there is continuing instability, and where the lives of certain human beings are in danger. So, in the first place, there is reason to call them refugees.

The reason why there is so much dispute in European public opinion about refugees, migrants, and so on is the assumption that we do not have any special obligations towards migrants, but we have special obligations towards refugees. But is it to be precluded that some of the individuals who are coming also want better economic and life opportunities for themselves? No, you cannot preclude that. But international law tells us to observe this distinction.

Say you are in Iraq, and even in Turkey, and you are not being given a position or finding employment because you are neither  Sunni or Shia, but a Kurd or an Alewite, your business is being bombed, you are not being hired, no one is threatening your life, but de facto, even if you are an economic migrant, you are in a position of destitution, you have no possibilities in life.  What are you then - a refugee or an economic migrant? So we are in this catch 22 situation, where international law gives protection to refugees and not migrants, yet what we see is a situation where not just in Europe but the world over these categories are inadequate to deal with the realities.

SS: Do you have the impression that some EU politicians or political elites are playing with these two categories, trying to stop this ‘invasion’ of refugees, that they treat refugees as economic migrants and are using this to justify the “impossibilism” they use?

Seyla Benhabib: Absolutely. I like the term ‘impossibilism’. Another term we could invoke is the artificial creation of a ‘state of exception,’ as Hungary has done.

Of course these terms are being exploited by states to deflect from their obligations under international and European law, but also, as we know, in countries like Hungary, as well as France, the UK, and maybe to a lesser degree in Germany, there are significant right-wing groups that have emerged in opposition to migration, to the EU, and this mood is being exploited by many forces.

UKIP in Britain is an extreme case: the situation in Hungary is an extreme case. There is little question though that the tragic refugee situation is becoming a ping pong ball in a political game. This is really terrible, and this is something that Europeans should have learned to avoid, because if you start playing politics with the lives of these individuals, what you are doing, without even saying so, is giving a green light to groups who might want to attack them: migrants and refugees become the unwanted, the others, who, in Giorgio Agamben’s words, reside in a state of exception, without anybody protecting them. Thus they become prey to possible attacks.

SS: You are a philosopher and I would like to concentrate on the legal and moral aspects of the situation. But let me start with the economy and briefly ask you: can the EU, or the west, afford this influx or not? What do you think, from the moral point of view, about the economic arguments around migration, are they justified or not?

Seyla Benhabib: The economic question has various dimensions. In general, what migration economists say is that in the short term – let’s talk about migrants as opposed to refugees – migrants impose a certain burden on the economy. But in the long term, they benefit it. The distinction between the short and the long term needs to be made.

Why? Because, by and large, migrants are young, mobile, and in this case they are males, although there are a lot of female migrants as well. They begin to contribute to the economy, and in the long term they end up paying in more than they take out. Countries like Germany have receding birth rates and an ageing population and that’s why German politicians have made a very rational calculation and have opened the country to migrants. The question about migration is always what the relationship is going to be between migrants’ wages and the existing economy.

The United States is probably an extreme example, because we don’t have a regulated marketplace. Migrants come in and undoubtedly, they depress wages in some sectors of the economy. There’s no question about this. Europe is regulated differently, so the real question is the relationship between the wages of the migrants and the wages of the existing population. Is there no contradiction at times? Yes, of course there is. The more unregulated labor is, the more it affects domestic wages downwards. But can this be altered by policy? Yes, one can set in place a Europe-wide policy. This would not be all that different from what happened in the much-discussed case of the Polish plumber going to France or the UK to work.

Now with refugees, the question is somewhat different. A refugee is someone who applies for asylum status. Asylum status processing is now taking anywhere from 2 to 5 years in many European countries. From what I have read, there are now attempts to try to speed up this processing of asylum applications, but in most European countries, refugees who are asylum applicants do not have work permits, so in that sense they are not exactly economic migrants.

A lot of them have to receive local aid from the municipalities or whichever local authority is responsible for them. And this is a very tricky situation, because in effect migration and refugees are a burden to the local region although they are admitted at a national level. There is much intense back-and-forth and tension between national inclusion and local integration. National governments have to devise intelligent policies for the integration of refugees, even while they are waiting for their status to be resolved.

I am giving you a complicated answer, because I fully respect the human rights of refugees and migrants; but I think it is best to be realistic about the contradictions they pose for economic policy and not to present the situation as a coherent and rosy picture. We progressives have to implement a more realistic policy to resolve some of the burdens and contradictions that this can present, even if migration revitalizes the economy in the long term.

SS: Some say German politicians are rational in admitting economic migrants or refugees because they know full well that they can fill their demographic gap. But others may ask, why do we have 3 million unemployed Germans?

Seyla Benhabib: In every labour economy there are niches that are not filled by the national working classes. I’m not exactly sure why this is, but there are certain jobs that only migrants do. For example, cleaning jobs in all buildings, or household cleaning jobs. Speaking from the US experience, jobs for nannies are often filled by Central American women instead of African-American women. Why?

This is really a very hard question to answer.  To use post-Marxist terminology, I believe that economic migration is part and parcel of the national peace that various social classes in advanced industrial economies have reached among themselves. It just seems that an unemployed German or Polish worker will not do some jobs that an Iraqi or Afghani will do. There is some strange segmentation in the labor market that cuts across national and ethnic lines.

I cannot say more than this, because this hasn’t really been investigated. As you know, I lived in Germany for more than 15 years and in the universities, whoever came to clean the buildings – this was in the 1990s – was inevitably from the Balkans, and the German worker was the supervisor. So is the migrant taking away the job from the national worker, or is the migrant helping keep the social peace between the classes? It’s quite a puzzle to decide.

SS: Why do we fear the Other? Why do some react like the people of Iceland who voluntarily invited thousands of refugees in, and why do others react instead as in Slovakia, which only wants to have 200 refugees and only Christians? Why do you think it is like that?

Seyla Benhabib: I was very, very touched by the Icelandic civil society initiative. I think the most interesting moral of the refugee dilemma is that civil society groups have displayed a kind of moral sense  - I don’t want to call it moral altruism - but a kind of demonstration of empathy with the suffering of the distant other.  But countries like Slovakia and Hungary are small nations in the heart of Europe and feel embattled by larger developments, fearing that they will lose their own identity.

But Iceland is all the more remarkable, because like Hungary and Slovakia, it is also a very homogeneous country. They themselves are trying to expand their self-understanding: what does it mean to be a citizen of Iceland if you are Libyan, if you are Afghani? And some of the Nordic countries, like Sweden and Norway, which are very homogeneous as well, are succeeding in creating this post-national multicultural identity. Denmark, on the other hand, is just as defensive as Slovakia. It had one of the most progressive assimilation policies in Europe, but it has moved back to a defensive and conservative posture under the impact of the Danish caricature controversy and the bombings last summer in a Danish bookstore. I am not giving you a very precise answer, but just meditating on the question.

SS: Isn’t it true that as long as there were homogenous countries in the west, we could support a welfare state? Is this why migrants seems to present the biggest danger for the welfare state?

Seyla Benhabib: I don’t think that is the case. I think the relationships between the welfare state, national homogeneity, and migration is not a zero sum game. Australia and Canada are countries of migration and they have a welfare state. The US is a country of migration which has a weaker welfare state, but has unemployment benefits, social security, and a weaker healthcare system. So national homogeneity and the welfare state are not always causally related: there are other factors that come into play as well.

We see in welfare states like Germany, Sweden, Norway, that if you do not absorb a young working class, you then face the question of who is going to pay the benefits for the elderly who are taking from the state but not paying into it? A young labour force is necessary for the welfare state to continue and to flourish. And that’s why some countries open up to immigration, and others do not.

SS: So people just don’t understand this because they think they do not want to pay for other people, for people of different races and religions, and they did not have this problem when they had to pay for the same people as themselves? Why don’t countries like Qatar, Saudi Arabia, the Gulf countries, want to accept any refugees?

Seyla Benhabib: Let’s talk a bit about the distribution of international obligation towards refugees. I’m very irritated about the following fact: in Syria, Afghanistan, and Iraq, the United States was directly involved in military action. Now morally, if you have a causal responsibility for creating certain conditions, you also have the responsibility to accept some of the consequences of your actions. The United States, the United Kingdom, France are countries who are still actively militarily involved in these regions in some way or another, and they have a responsibility towards the refugee problem.

I’m very disappointed by the reaction of the United States and I’m very disappointed by the United Nations. I think this is not just Europe’s burden, and it it’s not just Europe’s responsibility. All countries involved in this region, in the conflict, have to come to the table.

SS: So you think the United States and Russia should do something?

Seyla Benhabib: Yes, absolutely I think they should.

SS: What exactly?

Seyla Benhabib: I don’t know too much about Russian migration or refugee policy, but we all know that Russia has had tremendous influence in Syria and even Afghanistan, for many, many years. But let’s talk about the United States. Because it has the blessing of the ocean between it and the refugees, it simply has no policy at the present and does not grant many visas to refugees. 

The United States has the luxury of denying refugee visas in its own embassies, or if you happen to go on a plane, even in the airport your visas are checked, so in fact what we have done in the United States is that we have made it impossible, nearly impossible, for overseas refugees to come across the ocean.

Since we conducted this interview, the Obama Administration has said that it will accept 10,000 refugees but the number should really be closer to 100,000 at least if it is to meet the USA’s moral obligations toward these countries.

SS: All refugees or Syrian refugees specifically?

Seyla Benhabib:  I’m talking about refugees from war-torn countries. Afghanis, Iraqis, Syrians.  But the United States is also faced with refugees coming over the land from Mexico and Central America, sometimes Canada. I feel as if we are morally failing, and I want to get involved in this. At Yale we have the Human Rights Group, and I want to get involved with the question of why we aren’t doing more.

We have the responsibility to do more, this is not just Europe’s problem. And where is the United Nations? Now to go back to your example of countries like Qatar and Saudi Arabia, I think these are countries in such internal turmoil themselves, and I’m not even sure what their status is as signatories of the refugee convention…

SS: They haven’t signed it.

Seyla Benhabib: Yes, I thought so. Qatar is interesting because it is an extremely wealthy country that takes in labor migrants from Pakistan, Bangladesh, Thailand, Indonesia, and elsewhere who work in slave-like conditions. And yet it does not accept its own brethren from Syria. I mean look, Turkey has accepted 2.5 million refugees from Syria. It’s an enormous number. Why? Whether there’s a bit of realpolitik, in that President Erdogan wants to influence Syrian politics, cannot be precluded; but nonetheless, it is pretty remarkable. Lebanon has accepted and Jordan have each accepted between a million and a million and a half, so Qatar and other Gulf countries are moral failures.

SS: Let me move on to more theoretical questions. In recent decades, and your book touches upon this, the categories of sovereignty and democratic values are becoming more and more blurred. And there is a discrepancy between the moral context of the refugee crisis and the legal situation of refugees. How would you describe this discrepancy so that regular citizens understand it? Your readers are citizens, what is problematic in citizenship now?

Seyla Benhabib: From a moral standpoint, human beings are not divided into citizens, refugees, and migrants. Morality is the obligation we have to the Other. To take the example of this refugee boy from Syria who was discovered dead by a Turkish police officer and was carried to the shore, of course everybody’s moral conscience revolted at the picture of this small boy, and there are very few human beings who do not feel touched by empathy or who feel some solidarity with the plight of the refugees and their suffering.

Now legally, the system of nation states, territorially bounded nation states, divides us into categories of human beings who are entitled to certain kinds of rights as opposed to others. The modern state experiment, the American, the French, the Russian revolutions were based on developing human rights and citizens’ rights. Human rights express in legal terms the kinds of fundamental obligations we feel we have to one another so that we will never again treat human beings in a way that destroys their fundamental dignity. These are universal human rights formulated by the Universal Declaration of Human Rights of 1948.  Citizens’ rights incorporate them, but as a citizen of Poland, you have certain rights, or in the United States, I have certain rights, which are different than those of a French or a Turkish citizen.

There are sometimes theoretical as well as legal tensions between human rights and citizens’ rights. Human rights have both a moral and a legal component and citizens’ rights can vary according to certain factors across countries. Contradictions arise precisely when you are confronted with populations who either live among you, such as migrants, or with individuals, who in the European Union are called “Third Country” nationals.  They have different rights to employment, to political participation than regular EU citizens.  Increasingly, we are facing a patchwork because people are living in each other’s territories and countries for longer periods of time, as long-term legal migrants.

If you go to London, there are probably tens of thousands of Poles who live in London. Now, what are their rights?  If you are a Polish citizen in London, can you vote for the London municipal elections? You can vote for the European Parliament and you can vote for your own parties at home, but if you want to vote for London municipal elections, can you?  Municipal or regional voting rights vary greatly across the EU. Now if you are an Afghani or a Turk who is living in London for the same number of years as a Polish citizen, but you are a third country national in the EU, do you have the same rights, or don’t you? My book, The Rights of Others, deals to use Habermas’s term, with new post-national constellations.  We now live in legal regimes which acknowledge universal human rights, and where nationality and citizenship are not the only basis for being granted certain rights; yet there are still distinctions made among groups of human beings based on their nationality or citizenship. So I would say, as a mental exercise, think about the Polish citizen in London, as opposed to the Iraqi or Afghani in London and you begin to understand the dilemma of these different rights.

If I may add one more thing: the European Union is an extremely interesting experiment. I know that these days no one knows if the European Union will survive. I’m a friend of the European Union, I hope that it will survive, I hope that it will move forward. Why? Because the European Union has created an impressive cosmopolitan legal space.

Although right now it seems that everything is in question, we have to think carefully about the long-term versus the short-term in politics. 47 countries in Europe are part of the European Convention on Human Rights, Russia and Turkey included. 28 countries of the European Union are part of the European Charter of Human Rights and Freedoms.  This creates an extremely interesting case of legal cosmopolitanism.

The human being, regardless of citizenship, is now considered entitled to certain human rights. How does this occur? The interplay and interconnection between these legal obligations articulated by the Charter and the Convention, this legal space with its own courts and institutions such as the European Court of Human Rights and the European Court of Justice, have created an extremely important example of a kind of post-national consciousness and post-national legal understanding of rights.

Ironically, refugees want to come to Europe because they also find this attractive and beneficial to them, but ironically Europe is beginning to suffer under the weight of its own contradictions. Precisely because countries of Europe subscribe to the European Convention on Human Rights, as well as to the European Charter, they are obliged to treat refugees and migrants in specific ways. So theoretically, the countries of Europe are committed to cosmopolitanism vis-à-vis the rights of migrants, but in practice they do not succeed in living up to those promises.

SS: In your book you talk about more flexible borders, or as you say, porous borders. Would you say that that is what we are witnessing now? Do borders work according to the theoretical solutions that you propose in your book? What works and what doesn’t?

Seyla Benhabib: Obviously, the state system and state bureaucracy are failing to deal with the various dimensions of the problem. If the borders are porous, and let’s say Germany has expressed its willingness to accept 600 000 migrants, what is happening with the building of the fence in Hungary? Why are refugees who want to reach Germany not being granted porous access?

I see no justification for it: there seems to be confusion in the minds of everybody, and European States are failing in this respect. According to the Dublin Conventions, refugees need to be granted refuge in the first country that they make contact with. They have to be processed there. Obviously what needs to be done is that the Dublin Convention has to be reconsidered, renegotiated. Because in effect if Germany is saying we are willing to accept those people, we will process them, then Hungary or Slovakia are just countries of passage, and they should accept the porousness of borders.

What the Hungarians are doing by forcing these refugees into camps is not logical, because in effect they don’t want these people at all.  Porous borders are the only viable way in which nations can co-exist, but obviously we are now living in a situation of crisis that is generating or attempting to generate the myth that those borders will be controlled – but this is a myth. The United States built a wall, 13, 14 feet high, on the Mexican border. Refugees have used a ladder 16 feet high to cross that border. Hungary has built a fence, but refugees are going to cut it, they are going to find ways to circumvent it. Porous borders really mean the acceptance that human beings move across borders, and that they should be able to move without being criminalized. 

SS: What’s the difference between porous borders and open borders?

Seyla Benhabib: Sometimes I wonder myself why I don’t just talk about open borders. Porous borders suggest that we still need some kind of public authority to be responsible for the settled population in a territory.  The puzzle is, how can you have open borders without a world state?

None of us wants a world state because we don’t believe that it can guarantee democratic self-governance. So porous borders is a theory that recognizes the moral and legal rights of human beings to move across borders, and yet at the same time, also acknowledges that there is a public authority that is responsible for the territory of the settled population. Increasingly we see that the nation states alone are not that public authority.

During the two wars, the European nation state system collapsed and was then subsequently reconstituted.  Today we are faced with a global situation where nation states are in crisis again in quite a few regions of the world -- the Middle East, North Africa, South East Asia. The world cries out for a more coordinated world organization, yet we have to find ways to reconcile the virtues of democratic representation, civil society, participation, solidarity, with that kind of vision of global governance.

SS: Isn’t what is terrifying us and politicians at the moment the sense that this is just the beginning, that not thousands, but millions of refugees will be coming to the island of Europe? If you look at the differences and inequalities we have in the world, the regions of crisis you just mentioned, can there be any other outcome?

Seyla Benhabib: I think that such phrases as mass migration, of “invasion”, are morally and politically charged terms that create fear and that do not enable us to think rationally, calmly, and morally about the situation. Clearly, what needs to be done is some very serious regional political coordination that will  resolve or attempt to find a solution for instability in the Middle East. I don’t think that people in Damascus necessarily want to go and settle in Hamburg. Maybe some do: some don’t. Damascus is a beautiful city, but they are desperate. Part of the solution has to be a political solution on the level of states addressing the condition of civil war in Syria.

You know, I was born in Turkey and personally, as someone from the Middle East, I am very scared about the way this region of the world seems to be sort of dissolving before our very eyes. So we need to find a political solution and maybe once the US-Iran nuclear accord is settled, there will be some kind of a possibility to come around the table and try to resolve the difficulties of Syria.

But I think we should object to this language of invasion, hordes, mass migration. It is not easy to be a refugee, people don’t just put their children on a boat and watch them die. So I think we should have some more sympathy for what these people are undergoing, and meanwhile, politicians have an obligation not to exploit this incendiary language.

SS: The best pragmatic solution would be to stabilize and to improve the situation in the countries from which refugees are coming and the regions of crisis. Do you believe it is possible?

Seyla Benhabib: It has to be possible, why not? I think right now we know that we live in the world of post-hegemony. The United States has not succeeded in Iraq, it has not succeeded in Afghanistan, and all of a sudden this new force called Isis has emerged, which caught everybody by surprise.

SS: But Obama didn’t want to go to Syria and stabilize the situation there.

Seyla Benhabib: No, he didn’t, and this was a big political mistake. Something should have been done. Not necessarily with American military force on the ground, but trying to negotiate, trying to get the Russians to the table. Something similar has to happen for Syria as happened for Iran. Because Syria has for a long time been a client state of Russia. Particularly the Assad government. So now there is this new situation with Isis which is scaring everybody. Is it possible that there will be a Sunni state between the eastern territories of Syria and North-West Iraq? Nobody quite knows the answer. What is clear is that Isis has military power that needs to be combatted: I’m sorry I’m not a pacifist in this regard. But how you can stabilize this quasi-civil war that was created between the Sunni and Shia?

This is not all that different from the situation in Yugoslavia where nobody in one family knew who is a Serb, who is a Croat, who is an Albanian, who is what – I don’t believe in the essentialist theory of primordial human differences. I think human differences matter in certain constructions, in certain historical periods, because there are other forces that bring them to the fore. That’s what’s happening right now in the Middle East.

We have a presidential campaign in the United States and it’s a very ugly campaign, so I don’t see anything happening soon. But it was a failure of the Obama administration not to try to do anything about the instability in Syria. I know that many of my American colleagues don’t agree with me.

SS: Some say that Putin is probably more liberal than 80% of Russian society. We’ve just criticized Obama, but do you think that Donald Trump is the popular voice of America?

Seyla Benhabib: Oh God, I hope not! I will become a refugee if Donald Trump gets elected!  Donald Trump is representing something that is much closer to a European anti-refugee and right-wing nationalist stance than we have seen in the United States. There have always been these nativist movements, you know, like in the 1920s, the Know Nothings, who were against immigration, against the Irish, the Jewish, even the German migrants.  Trump is a regressive politician, taking us back to a certain American white-ethnic ‘nativism.’

But I am not entirely pessimistic. Bernie Sanders, the first properly social democratic candidate in America, is also drawing huge crowds. America is in a period of profound dissatisfaction with establishment politics. Donald Trump represents something unusual and that’s why the Republican Party is so confused. The candidates are so lost, because they don’t know what to do with this kind of nativist language – America for good white migrants only, away with these Mexicans and Hispanics – this is not the language of America.

SS: So, you have Europeanized Donald Trump - which is a very nice riposte for a European newspaper.  

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