James Hathaway is right when he concludes: “If we are serious about avoiding continuing humanitarian tragedy—not just in Europe, but throughout the world—then the present atomized and haphazard approach to refugee protection must end. The moment has come not to renegotiate the Refugee Convention, but rather at long last to operationalize that treaty in a way that works dependably, and fairly.” But I also believe we must walk with both legs at once: renegotiate a treaty for the 21st century while effectively operationalizing the old. We need simultaneously to despair at the continual reproduction of human “rightlessness” of refugees and migrants, and to be moved by the messages of hope emanating from global social action that challenges the somnambulism of sovereign power.
This dual strategy implies that until a new treaty is available, we do at least the following: expand international human rights law norms for refugees and migrants when these are inadequate; and work to ensure existing laws work to the benefit of refugees and migrants. When this fails, we must critically expose the myths of border control and the folklore that speaks of a peril of the non-European migrant, as if they were the new “untouchables” of Europe. In the process, we must question our ways of thinking about and doing human rights.
We must hope for an incremental transformation of collective moral sentiment towards the recognition of the dignity and rights of migrant and refugees. Securing these rights is a hard and long labour, akin to the labours of translating the idea of an international criminal court into reality: on my count it took well over 150 years to make it actually happen. Though not widely ratified yet, there is an international Migrants Workers Convention—the invention of the human rights of migrants is after all possible.
