Frontier Justice

by Andy Lamey

  Derrida’s speech is a meditation on the cities of asylum project and how it might serve as an inspiration for a new model of protection, one that would be extended not merely to exiled writers, but to asylum-seekers in general. Derrida points to a crisis of asylum in France, and argues that the traditional statelevel system is no longer effective. The underlying cause of this breakdown, he argues, is the tension between human rights and national sovereignty highlighted by Arendt. As he puts it, “Arendt was writing of something which still remains true today.”

  Derrida’s use of Arendt’s ideas to explain contemporary European trends is confident and clear. When it comes to offering solutions to the asylum problem, however, he grows tentative and hesitant. He argues that experimentation with different forms of protection is necessary, and that the cities of asylum project should serve as a model for what one new form of asylum might look like. When it comes to specifics, however, Derrida seems reluctant to put forward his own blueprint for reform. Instead, he seems to want his remarks to inspire the imagination of his audience, who will conceive their own solutions to the problem. (This position is one Derrida also adopts in his philosophical works, perhaps out of distaste for the idea of a philosopher serving as an authoritative guru.) If that is the case, it is worth noting that Derrida’s remarks can be taken to suggest two different understandings of what a “city of asylum” might mean.

  Sometimes Derrida seems to be concerned with cities of asylum in a more or less literal sense, as when he speaks of a new role for cities, “equipped with new rights and greater sovereignty.” Here and elsewhere, he seem to suggest that the city is the last, best hope for human rights. The state is exhausted, and the history of the European Union to date has not revealed continental entities to be any better. As Derrida puts it, “At a time when we claim to be lifting internal borders, we proceed to bolt the external borders of the European Union tightly.” But what if we have been looking in the wrong place? What if instead of looking above states, we should instead be looking below them? In regard to the city, Derrida asks, “could it, when dealing with the related questions of hospitality and refuge, elevate itself above nation-states, or at least free itself from them, in order to become … a free city?”

  This proposal may sound unrealistic. As if to allay this fear, Derrida points out that his speech is taking place in Strasbourg. Located on France’s border with Germany, the Alsace capital embodies sovereignty’s changing history. Before its annexation by France in the 1600s, Strasbourg was part of the Roman Empire, a disputed territory fought over by religious and civic authorities, and a Free Imperial City with special status under jurisdiction of the Holy Roman Emperor. Between the 1870s and 1940s, France and Germany exchanged control of Strasbourg four times. After World War II it became home to pan-European institutions such as the Council of Europe and the European Court of Human Rights, and it has since come to symbolize a united Europe. In keeping with this unique status, in 2005 Strasbourg was designated one of the EU’s first Eurodistricts, a new administrative entity that integrates urban areas that straddle national borders.

  When Derrida gave his speech, Strasbourg, the Council of Europe and the European Parliament all had representatives in the audience, and they would have been familiar with the city’s history. Derrida would thus appear to be drawing attention to the uncharted possibilities Strasbourg represents when he refers to it as “this generous border city, this eminently European city, the capital city of Europe, and the first of our refuge cities.” At a time when European institutions were rapidly evolving, Derrida was saying, Europeans should take seriously the idea that that evolution be directed in such a way as to give greater autonomy to cities, so that they might function as islands of asylum in an ocean of unwelcoming states.

  This, then, is the first understanding of a city of asylum Derrida’s remarks suggest: give actual cities more sovereignty. The second interpretation, by contrast, takes a more metaphoric form. It is hinted at by the many religious references scattered throughout Derrida’s remarks. At one point, for example, he argues that the asylum cities project evokes the notion of a city of refuge as described in the Book of Numbers. As Derrida summarizes the relevant biblical passage, “God orders Moses to institute cities which would be, according to the very letter of the bible itself, ‘cities of refuge,’ or ‘asylum,’ and to begin with there would be six cities of refuge, in particular for the ‘resident alien,’ or ‘temporary settler.’ ” In a similar spirit, Derrida urges his audience to study the medieval practice of sanctuary, which saw European churches offer refuge to criminals and other individuals wanted by political authorities. Finally, he evokes the concept of hospitality, a term with special meaning in his philosophy, one that functions as a broad synonym for ethics. This occurs when Derrida refers to an “unconditional Law of hospitality,” a phrase that is meant to suggest the notion of a moral law that is conditioned by human-made laws but is not reducible to any one of them.

  A moral law above the law. Biblical cities of refugee. The medieval practice of sanctuary. These ideas all have something in common. Each has traditionally been used to justify the so-called sanctuary movement. This term became prominent in the United States in the 1980s, and has since come to refer to churches that proclaim themselves “sanctuaries” for non-citizens who have run afoul of immigration laws, particularly people whose refugee claims have been rejected. These types of sanctuary cases, which usually see church officials arguing that their government has failed to recognize a genuine refugee, are now a fact of life everywhere from North America and Europe to Australia and South Africa. Such cases can see a failed refugee claimant and his or her family living inside a church for months or even years. Governments are often slow to take action in response, no doubt because of the bad publicity that raids on churches can generate.

  Derrida’s references to what he calls our “secularized theological heritage” suggests an affinity between church-based sanctuary and the form of protection offered by the International Parliament of Writers. In both cases, offering protection to refugees is not something left to governments. It is rather a social good that private groups take it upon themselves to provide, the difference being that one group is literary while the others are religious. Such a parallel is further suggested by Derrida’s remarks about hospitality, which he sees as an ethical idea that can be embodied on a public or a private level. The parallel to religious sanctuary is also in keeping with the positive attitude Derrida exhibits toward people in France who were willing to break the law in the name of welcoming foreigners, in defiance of the measures French politicians were then proposing. Referring to the government’s plan to criminalize certain forms of hospitality extended toward foreigners, Derrida remarks, “We have doubtless chosen the term ‘cities of refuge’ because, for quite specific historical reasons, it commands our respect, and also out of respect for those who cultivate an ‘ethic of hospitality.’ ”

  What to make of Derrida’s unusual speech? Many of the restrictive immigration measures he criticized would later attract widespread opposition. In 1997, 100,000 people marched in Paris to defend their right to have non-Europeans in their homes without informing the authorities, causing the government to abandon its planned legislation. Similarly, the Pasqua law was eventually revised. It is to Derrida’s credit that he spoke out against such policies when they still enjoyed significant support in public opinion. He is also right to stress the relevance of Arendt’s ideas for contemporary European debates, and he displays an admirable independence of mind by treating sovereignty not as a brute and unchanging fact of nature, but as an institution within the realm of rational scrutiny and revision. In short, there is much to admire in Derrida’s position.

  But when it comes to human rights, the question is whether Derrida points us toward a solution to the problem Arendt identified. Does either interpretation of his notion of a city of asylum grant meaningful rights to refugees?

  In regard to cities of asylum take
n in a literal sense, it is worth noting that there once was something like such a city. This was Shanghai, which on the eve of World War II became an unlikely haven for refugees. In the late 1930s the Far Eastern metropolis was populated by over four million Chinese people and roughly 100,000 foreigners. It was, in the words of historian Michael Marrus, “the fifth largest port in the world—crowded, dirty, cosmopolitan, with a reputation for crime, violence, and intrigue.” In 1938 and 1939 Shanghai, unlike every other jurisdiction on earth, required no visas or travel papers for entry. This meant it would not turn away Jews, who began sailing for Shanghai in large numbers after Germany annexed Austria. So many refugees arrived that, by the summer of 1939, several Shanghai neighbourhoods had a Germanic feel, having become home to German-language newspapers, concert halls and coffeehouses. In its status as the “port of last resort,” Shanghai eventually allowed between fifteen thousand and seventeen thousand Jews to escape the gas chambers.

  At first glance Shanghai might appear to lend support to Derrida’s proposal, in that its openness to refugees was a result of an unusual form of government. Since 1854 Shanghai had been home to two foreign-controlled districts, known as the French Concession and the International Settlement, both of which were administered by municipal councils made up primarily of Westerners. After Japan invaded in 1937 and took over all Chinese-administered parts of the city, power was split between three entities, none of which was authorized to control immigration (hence the openness to foreigners). However, in August of 1939, Japan, which controlled Shanghai’s harbour, imposed entry requirements that eventually brought Jewish immigration to a halt. The governments of France, the United States and the United Kingdom also worked to close Shanghai’s doors. The resulting effort, according to historian David Kranzler, “took on the character of a universal conspiracy to prevent further emigration from Germany of those thousands of potential refugees whose only haven was Shanghai.”

  National governments played a key role in ending Shanghai’s status as a city of refuge. But it is also important to note the actions of the Shanghai Municipal Council, the democratically elected body that oversaw the International Settlement (the French council took similar steps, but reported to an unelected French official). Rather than protest the actions of the Japanese authorities, the council acted as quickly as it could to put in place a similar policy for the International Settlement. As historian Marcia Ristaino has noted, anti-refugee attitudes were widespread among Shanghai’s English-speaking community. “Both American and British residents displayed the garden variety of country-club anti-Semitism by wanting to exclude these poor and ‘foreign’ persons from their neighborhoods. It was common to see advertisements in the prestigious North China Daily News that blatantly refused rentals to refugees.”

  The fact that a democratically elected municipal body such as the Shanghai Municipal Council could close the door to deserving refugees highlights a problem with Derrida’s suggestion that cities be granted “new rights and greater sovereignty.” The problem is not that any contemporary city with greater sovereignty will necessarily share the prejudices of 1930s Shanghailanders. The problem is that shifting sovereignty to an entity other than a state is no guarantee that the entity in question will uphold the rights of refugees. Just as a larger sovereign entity above states is not more likely to enforce the rights of asylum-seekers simply because it is larger (as European Union asylum policy would appear to attest), a sub-state entity such as a city is no more likely to uphold the rights of asylum-seekers simply because it is smaller.

  Indeed, if anything, sovereign cities might well be less welcoming to refugees than are states. As it is now, when refugees arrive in Western countries they are often portrayed as overwhelming the host society’s capacity to absorb them, even when the refugees in question represent a minuscule proportion of the receiving society’s population. Given that the average city has a smaller population than the average state, this anxiety-driven response to refugees could easily become even more pronounced if cities became the primary receiving entities. (If a city were small enough and received a large enough influx, the concern might actually be true for once.) Derrida’s proposal requires a greater level of detail outlining how civic sovereignty could be designed so as to avoid this problem. It also needs to be explained why, assuming some such model of sovereignty exists, it cannot be implemented on a national level.

  This brings us to the second version of the city of refuge suggested by Derrida’s remarks, the one that implicitly likens the Parliament of Writers project to a church sanctuary. It is not clear how far Derrida wants to push the parallel: he may be suggesting the writers’ group go so far as to break the law, the same way churches do when they shelter refugee claimants. Alternatively, he may merely be suggesting that as a private group, the IPW should do what it can to ensure asylum to individual refugees and their families. But insofar as Derrida’s proposal even hints at illegal activity, our assessment of it will be influenced by where we stand on church-based sanctuary, a question that requires a brief detour into the debate over this controversial practice.

  Church-based sanctuary has been called everything from an “obsolete privilege” to an institution that “facilitates lawlessness.” Critics are right to stress the importance of obeying the law, but wrong to think that this represents a knock-down argument against sanctuary. Leaving aside religious defences of the practice, which are usually aimed at a particular religious community, sanctuary for genuine refugees can be justified on inclusive grounds as a form of civil disobedience.

  People who engage in certain forms of law-breaking can be separated from common criminals if they meet five conditions. The first is that they break the law in a non-violent way. Second, they must do so publicly, and not try to mask their identities or hide from the police. Third, they must be willing to go to jail if the authorities choose to press charges. Fourth, their disobedience needs to be plausibly construed as correcting an injustice, rather than advancing their own gain (law-breaking aimed at maximizing profits or changing a zoning bylaw to build a mansion could never count as civil disobedience). Finally, the illegal activity must be undertaken as a last resort, either after all avenues of democratic change have been exhausted, or to avert some serious and immanent wrong that the authorities cannot or will not prevent.

  When church sanctuary meets all of these conditions, it should cause us to reject “the mindless view that conscientious disobedience is the same as lawlessness,” as the legal theorist Ronald Dworkin once put it. From this point of view, everything hangs on the circumstances of the individual asylum-seeker involved, and how much evidence there is that the government has made a mistake with his or her file. Given the fallibility of human judgment, it seems reasonable to expect that governments will sometimes make mistakes and fail to recognize a genuine refugee. By the same token, however, churches may also sometimes go astray and offer sanctuary to individuals who do not really warrant it. This means that there can be no across-the-board justification or rejection of sanctuary, only judgments about individual cases.

  Is it possible to determine how many sanctuary cases to date have involved genuine refugees? There is no uncontroversial way to answer this question. It is worth noting, however, that governments have acknowledged that deportation decisions are sometimes mistaken. A study of church sanctuary in Canada, where the practice is comparatively common, found that there were thirty-six sanctuary cases between 1983 and 2003, involving 261 people made up of asylum claimants and their family members. Eventually 70 percent of the people being sheltered this way obtained legal status.

  What does Canada’s experience show? Suppose for the sake of argument that the Canadian government was far too lenient in the majority of its reversals, and only 20 percent of those 261 individuals really deserved to avoid deportation. Even if that were the case, it would suggest that twenty years of sanctuary had the overall effect of not making a difference in a third of instances; allowed seventy-odd people to
circumvent normal immigration procedures to remain in Canada; and prevented the deportation of fifty-two deserving people, made up of refugees and their family members. Given that someone who obtained citizenship this way would be committing a victimless crime, while a deported refugee family is at risk of seeing at least one of its members killed, the record of Canadian sanctuary to date would appear on balance to be more good than bad.

  The upshot of this excursion into the sanctuary debate? Derrida is not crazy to find inspiration in church-based refugee sanctuary. Indeed, if he were encouraging the writers’ parliament to commit civil disobedience, it would only strengthen his proposal. If the IPW were to get into the asylum business, it would do the most good if it devoted its energies to helping genuine refugees who had been mistakenly rejected by governments. Yet even so, there is still a problem with Derrida’s finding inspiration in church-based sanctuary. It is that sanctuary can at best be an occasional corrective to a government-run asylum system, rather than a replacement.

  The largest sanctuary initiative of all time was probably the one that developed in the United States in the 1980s. At the time, critics charged that U.S. Immigration authorities were deliberately rejecting asylum claims by people from Central American countries that were U.S. client-states. In response, a group of priests, nuns and lay church members based in Arizona began to help Hondurans and Salvadorans, either picking them up just after they crawled through holes in the international fence or hiding them in the backs of station wagons and driving them over the border. Between 1981 and 1986, the Arizona sanctuary movement built up a network of churches (and a few synagogues) that eventually stretched as far north as Chicago. Yet even though the Arizona activists managed to develop a national network of sanctuaries, and went so far as to engage in people-smuggling, the total number of people they helped is estimated at two to three thousand. That is a tiny proportion of the tens of thousands of asylum cases that the United States accepted during the same six-year period.