by Andy Lamey
What is the point of this long swim through the past? It might seem far-fetched to conclude a book about the rights of refugees with a historical discussion mentioning Hugh Capet and the Swabian-Rhenish League. In reality, however, the history of the sovereign state has valuable lessons to teach us that are relevant to the situation of modern refugees.
The first lesson has to do with what historians call the invention of tradition. There is a universal human tendency to project arrangements we approve of back into the past. An example relating to migration is supplied by Jean-Marie Le Pen, the founder of France’s National Front, a Far Right party that opposes non-European immigration. Le Pen has claimed that his party represents “the French people born with the baptism of Clovis in 496, who have carried this inextinguishable flame, which is the soul of a people, for almost one thousand five hundred years.” Needless to say, Clovis would have been baffled by Le Pen’s nationalistic conception of belonging, let alone the idea that France should exist as a territorial state within set borders. We can better immunize ourselves against the claims of Le Pen and other nativists by recognizing that the historical claims they make are often based on myths.
In addition to peoples, invented traditions also spring up around states. As institutions of authority they bedeck themselves in symbols that make appeal to the “sanction of perpetuity,” as one historian of tradition puts it. When a people or a state’s claim to timeless authority is taken at face value, it is easy to think of the rejection of refugees as a natural occurrence, as inevitable as a pack of animals protecting their territory. In reality the history of the sovereign state shows it to be a product of culture rather than of nature. States are something that human beings created and have changed considerably over time. Given this past, we should be hopeful that they might change again in the future, in a manner that makes the world safer for refugees than it currently is.
This brings us to the second reason to take note of the history of state sovereignty. That history has bearing on how we will judge Arendt’s own solution to the enforcement problem human rights face in a world of states. “Solution” may be something of a misnomer. Unlike her detailed discussion of the problems refugees face, Arendt’s remarks about how those problems might be solved are often brief and elliptical. A typical example concerns her remark that “human dignity needs a new guarantee which can be found only in a new political principle, in a new law on earth, whose validity this time must comprehend the whole of humanity while its power must remain strictly limited, rooted in and controlled by newly defined territorial entities.”
There is now a long tradition of Arendt scholars citing this and other passages, including one in which she cryptically refers to “a possible law above nations,” as evidence for an Arendtian alternative to the system of sovereign states. One thoughtful interpreter of Arendt, for example, has attributed to her a belief in “regional and global federation.” In regions such as the Middle East, Israelis and Palestinians would not occupy separate states. Rather they would co-occupy a “binational, confederate state,” a form of power sharing that would also apply to global institutions. “Rejecting national sovereignty as a recipe for disaster, she envisioned a political community with multiple and overlapping levels of authority,” Jeffrey Isaac writes, “in which national identities would be respected but in which they would not be the exclusive basis of political power and citizenship.”
If Arendt’s scattered remarks about what might replace or supplement sovereignty do amount to a “vision of regional and global federation,” it is a puzzling position for her to hold. Arendt, as we saw, was scathing on human rights because they lacked an institutional framework that could guarantee they would be respected. Her problem with human rights was that they had inadequate force in law. When it comes to “human dignity,” by contrast, she is sympathetic to this notion, even though it too lacks a reliable enforcement mechanism. (This absence explains the need for a “new law on earth” devoted to upholding it.) But if a commitment to human dignity is not called into question by its lack of force in existing law, it is not clear why the same is not true of human rights. In her discussion of dignity and rights, Arendt appears to employ two weights, two measures.
The deeper problem, however, has to do with the idea of a global political order “with multiple and overlapping levels of authority.” The sovereign state arose in part as a reaction to this kind of system. As we’ve seen, prior to the rise of the state, multiple and overlapping levels of authority resulted in multiple and overlapping problems. It was often unclear who was in charge and the overall system was conflict-prone, inefficient and confusing. There are good reasons why the territorial state is the most widespread and enduring form of political organization. Casual invocations of a less territorial alternative that do not take those reasons into account have an air of unreality. How might an alternative to sovereignty avoid the chaos of feudalism? How might we transition to such an arrangement in a world where states prefer to bestow recognition on each other? These are only some of the questions a “confederation of communities” gives rise to.
It is debatable whether Arendt really wanted to do away with sovereignty. Her reference to power controlled by “territorial entities,” for example, sounds similar to the power of the territorial state. But visions like the one Isaac asks us to consider exhibit a problem, whether or not it is a problem shared by Arendt. That problem is sometimes referred to as utopianism, but the real failing is not how much such visions challenge the status quo, but how much they support it. If justice for refugees has to wait for a change on the scale of getting rid of national sovereignty, justice will be a long time coming, if it ever comes at all. It is both more realistic, and more radical, to seek justice for refugees in a world of states.
Make no mistake, there is a real role for international law and international organizations. The Refugee Convention and UNHCR are important developments in the history of refugee affairs. But it is possible to be both an internationalist and a realist, and the reality is that sovereignty is unlikely to vanish overnight. States, I have been at pains to show, are cultural artifacts with evolving histories. But that same history suggests that the international system of global order is unlikely to evolve into a system like the one which the state system originally arose to displace. A framework of refugee rights that at least has the potential to be implemented in a world of states in no way limits the future direction that evolution might take. It rather gives us a tool of judgment and action that we can apply to the political institution we currently find everywhere on the face of the earth, the same institution that currently exacerbates the situation of so many refugees.
Call this the Goldilocks view of state sovereignty. Inventors of tradition go too far one way and characterize the state as eternal and unchanging. Contemporary Arendt scholars go too far the other way and envision unlikely alternatives to the global state system. Where one approach is too hot, the other too cold, an emphasis on the possibility of change within the existing state system, or something very much like it, is just right.
As late as the nineteenth century, sovereignty posed no threat to the rights of refugees. The primary reason for this was that there were no refugee crises of the kind we are familiar with today. Although people were often driven from their home by religious persecution and war, most lacked the means to travel very far, let alone sustain themselves for long periods. The existence of a “refugee problem” also presupposes that local officials feel some obligation to care for impoverished migrants. This wasn’t the case before the nineteenth century, when agricultural societies often could barely support their own populations. Thus, rather than occupying a special category, people fleeing political persecution before the 1800s would quickly become indistinguishable from local vagabonds and beggars who sought scraps of charity. Often they met the same fate. Historian Michael Marrus has noted of pre-modern refugees that they “would quickly succumb to hunger, disease, or exposure. Large masses of peopl
e simply could not move from place to place supported by meagre social services. Winters, generally, would finish them off.”
Things began to change during the first half of the nineteenth century. This was the Era of Revolutions, when national liberation movements challenged a host of repressive governments all over Europe, from Ireland and Italy to Poland and the Austrian Empire. When many of these movements were defeated, thousands of revolutionaries, agitators and rabble-rousers fled to western Europe (a wave of displaced radicals that included Karl Marx, who washed up in England in 1849). Yet this “flotsam of revolution” was not quite identical to the refugees we know today. Not only were the numbers in the thousands as opposed to the millions, they were primarily men. (When women were driven to take flight abroad, it was usually because they had married a revolutionary.) The Era of Revolutions was thus less an age of refugees than an age of exiles. As Marrus describes them, these were “individuals who had chosen their political path, rather than large masses of people torn loose from their society and driven to seek refuge.”
The reception these exiles received is difficult to imagine now. Suppose you were a Polish revolutionary who had participated in the failed uprising against the tsar in 1831 and then fled to England. You didn’t worry about showing your passport to a border guard when you docked. You simply strolled down the gangplank, and that was it. You were free to go wherever you liked and stay for as long as you wanted. Legal barriers on migration certainly existed in the nineteenth century, but they tended to single out particular groups of people, and they varied widely from one frontier to another. In different parts of Europe, Jews and Gypsies were seen as especially undesirable, while in Northern American states, laws were passed restricting the movement of free blacks. And absolutely no country wanted migrants deemed “liable to become a public charge,” that is, paupers and the handicapped. Overall, however, governments did not take the same degree of interest in border control that they do today. Enforcement measures tended to involve things like fines against shipping companies, to prevent them from granting passage to paupers or other unwanted groups. Not only did this mean it was harder to stop anyone who was determined to reach foreign shores and had the money to do so, but when it came to travellers who were wealthy and white, there were hardly any restrictions on their movement at all.
One might think that political revolutionaries would be among the groups singled out for exclusion. Surprisingly, this was not the case. One reason was that western Europeans did not regard the refugees in their midst as a threat. Partly this was because taking up the cause of revolution and flight into exile were both expensive undertakings: refugees of the day thus tended to be well-to-do and had an aura of nobility (albeit one that would fade the longer they stayed abroad). Moreover, the causes that animated groups such as “Young Italy” or “Young Germany,” as European revolutionary movements were called, was often that of making their homeland more like the liberal states in which they now found themselves. This was a cause that their host societies often regarded with sympathy, even admiration. When the Italian revolutionary Giuseppe Mazzini fled to Switzerland in 1848, the local population treated him like a visiting dignitary. During the same decade, France went so far as to issue political exiles a living allowance, rated according to their military rank and social background.
But there was another reason why nineteenth-century exiles were comparatively well treated: governments lacked the means to keep track of them. Police and other officials did not have access to fingerprints, photographic ID and other forms of surveillance technology. As a result, it was often simply not possible to stop people from crossing the border or to monitor their whereabouts after they arrived. Such enforcement measures as did exist were not hard to evade. When the Russian radical Alexander Herzen travelled through Italy in 1847, he was obliged to produce his passport for a Neapolitan soldier who made a show of examining it, only to reveal that he was illiterate. A year later, in Switzerland, Mazzini sent out letters to local newspapers poking fun at the inability of Swiss authorities to catch him. “You are looking for me everywhere. You are wearing out your telegraph operators.… You do me the honour of buying my portraits.”
The border regime that we know today took shape roughly between the mid-1880s and the mid-1920s. As with the spread of sovereignty itself, there were many particular causes that varied from country to country. But an important general cause was the rise of nationalism. In the nineteenth century, shared language and ethnicity came to be the prisms through which large numbers of people defined themselves. In many ways, this represented a more inclusive conception of belonging. With the rise of mass democracy, often a shared language was the only thing Germans, Italians or members of other national groups had in common. People who were part of the linguistic or national group thus became part of a new “welfare community,” and so were entitled to the benefits of the developing welfare state.
The flip side of this positive development, however, was that governments now had a reason to separate citizens from non-citizens. As the historian John Torpey puts it, “In part as a result of the nationalization of welfare provisions and the increasing assumption by political leaders of responsibility for economic well-being, the distinction between ‘national’ and ‘foreigner’ … [grew] sharper. An international system of states comprised of mutually exclusive bodies of citizens was taking firmer shape.” Whereas in the 1800s France and Prussia could extend welfare relief to foreigners, and Prussia could also supply non-citizens with passports, neither practice survived the beginning of the twentieth century.
The change in attitudes toward outsiders was perhaps starkest in England, which had traditionally held one of the most liberal attitudes toward migrants. It had no restrictions on entry of any kind before 1793, and even after such laws were introduced, they were laxly enforced, to the point that between 1823 and 1905, England neither expelled nor denied entry to a single foreigner. The seeds of a new understanding were planted in the 1880s, when waves of Jewish people left eastern Europe, seeking to escape pogroms, poverty and tsarist persecution. After many Jews settled in East London, they received a hostile welcome from their new neighbours, who pre-judged them as disease-ridden and prone to criminal activity. The darkening anti-Semitic mood caused East End members of Parliament to propose restrictions on immigration. By 1903, a public commission was recommending a law that would cut off the flow from eastern Europe and require mandatory police registration for all foreigners.
The law was opposed by a young Winston Churchill, who denounced it for violating “broad, general principles, long held in veneration in this country.” Speaking in the voice of a nineteenth-century liberal, the future prime minister brought forward three central objections. “It endangered the right of asylum to political offenders and the poor and unfortunate. It allowed a police officer or Customs House officer to pronounce on matters of opinion, and it created a different status for people living together in this country. All should be free and equal before the law.” But Churchill’s opposition was a lost cause, and in 1905 the British Aliens Act came into effect. When Canada and the United States introduced their own restrictive immigration laws in 1919 and 1924 respectively, it marked a turning point in North Atlantic history. There would be later changes, as when racial quotas were dismantled in the 1960s. But the foundation of the border-control regime we are familiar with today had effectively been laid. When refugees appeared in great numbers in the aftermath of World War I, the stage was set for them to experience the new form of rightlessness Hannah Arendt so powerfully described.
The late arrival of border control illustrates that sovereignty is an institution with different parts. Usually when we speak of sovereignty, what we have in mind is the idea that there is one single source of authority over a particular territory. But as we saw in chapter 3, sovereignty also refers to a form of recognition that is bestowed on states by other states and outside entities. This was the quality that the government in exile of Som
alia possessed and the government of Taiwan lacked. Sovereignty in the first sense has to do with power. Who controls a given territory? Sovereignty in the second sense has to do with legitimacy. Who should control that territory, whether or not they currently do? In addition to these two aspects, sovereignty has a third dimension, that involving a state’s ability to control which people or goods come across its borders. This is also a form of control, but one that is distinct from a government’s ability to police the area within its borders. (It is possible for a government to administer the rule of law internally yet not be able to stop people from coming across its border.)
Analysts of sovereignty now use the terms domestic sovereignty, international legal sovereignty and interdependence sovereignty, respectively, to identify these three different aspects of sovereignty. The history of sovereignty shows that they each arose at a different time for a different reason. Domestic sovereignty is the oldest, arising originally in western Europe. It spread because it is a politically and economically efficient form of organization. The curse of localism was the problem, and domestic sovereignty was the solution. Centuries later, the Peace of Westphalia brought the innovation of states formally recognizing each other’s authority in the wake of the Thirty Years War. Endless religious war was the problem, to which international legal sovereignty was the solution. Centuries later still, in the early decades of the twentieth century, states introduced methods of border control that were stricter than those that existed in the nineteenth century. Foreigners arriving en masse was the problem, at least in the eyes of Western governments, to which interdependence sovereignty was the solution.
