The Sovereignty Hurdle that Trips Good Ideas
Audrey Macklin (University of Toronto)
Jelena Džankić’s and Rainer Bauböck’s kickoff piece reminds us of the inverse relation between the necessity and ease of transnational movement: those who most need to move are most impeded.
Džankić and Bauböck recite and reject some familiar policy responses to the brutality of a global order that systematically permits and sustains this arrangement. Political realism precludes increasing the supply of security via open borders; reducing demand for movement through more equitable distribution of global resources is too slow; and expanding extraterritorial access to the legal technology permitting entry (citizenship) sits uneasily alongside a normative insistence on a ‘genuine link’ between citizen and state. In light of the infeasibility of these responses, the authors offer a fourth option. They are inspired in part by some states’ pandemic-induced innovation in admitting migrant workers deemed ‘essential’, though otherwise regarded as expendable and unworthy of membership. To simplify, they propose an international entry permit (which they call a mobility passport), redeemable in any state, for migrant workers and environmentally displaced people. The refinement of these categories of necessity, the duration of the permit, the entitlements upon entry (to work? to health care? to social assistance? to family unity?) remain to be worked out “in an international setting in which states are formally equal,” and where civil society organisations are mobilised.
There is much to commend in this proposal, insofar as it could reduce barriers to movement for those who need to move. But I confess to a somewhat cranky initial reaction, which I hasten to add is no fault of the authors or their proposal. As scholars of migration, we all share a sense that the current global regime is unjust. How unjust, the locus of responsibility for the injustice, and whether and how the injustice can be mitigated are questions that preoccupy all of us, even as we diverge in our answers.
When we turn to prescriptive models, many of us make the following moves. First, we identify a problem. Second, we hold some aspects of the present system as fixed and constant, perhaps out of pragmatism, or because of our own normative commitments, or simply because we cannot change everything at once. We reject other models that fail to satisfy our criteria. Third, we recognise and leave open the future task of elaborating the details (where we all know the devil lurks). Most of us do some version of this, including me.
Džankić and Bauböck reject more open borders as politically unrealistic, global redistribution as temporally unrealistic, and extraterritorial access to citizenship as normatively unacceptable. And yet, the same obstacles that make these options unpalatable are no less salient in respect of the ‘mobility passport.’ I will focus here on the ‘open borders’ objection.
Sovereignty Hurdle #1: We Pick You, You Don’t Pick Us
The phrase ‘open borders’ is shorthand for an ability of non-citizens to enter a destination state without individualised assessment by that state according to criteria articulated and applied by agents of that state. The normative objection to open borders in political theory trades on a conception of sovereignty that is calibrated to border control: a state is sovereign to the extent that it exercises an effective power to exclude. One of the many flaws in this cramped version of sovereignty is revealed by the treatment of asylum seekers. States who are party to the UN Refugee Convention engage in a sovereign act by voluntarily binding themselves to an international convention that anticipates the spontaneous arrival at the frontiers of signatory states of people seeking refugee protection. Indeed, Article 31 of the UN Refugee Convention even anticipates that refugees may resort to irregular means to reach or enter the territory of a signatory state, and exempts them from liability for doing so. Yet states persistently and successfully portray the spontaneous arrival of asylum seekers as an affront to state sovereignty, and even as an illegal act. This failure to recognise that states also manifest their sovereignty by making legally binding commitments extends to the entry of non-citizens who are not refugees. During the Brexit campaign, even the free movement of EU citizens, to which all EU member states agreed, was fatally denigrated as a diminution of UK sovereignty. This tells us that states and their publics continue to invoke sovereignty and the menace of ‘open borders’ in order to resist the admission of people whom the state does not individually select, even where the state consents in advance to their admission as a class, and even if their admission is framed as advancing domestic economic self-interest. Diego Acosta helpfully reminds us that some regional ‘free movement’ agreements function reasonably well and are even expanding. It would be useful to learn more about why some succeed more than others (apart from rough socio-economic parity among parties).
Sovereignty Hurdle #2: We Decide
Even where states are bound by a common international or regional standard – as with the refugee definition – domestic state actors retain jurisdiction over determination of status. They do not delegate that authority to an international or regional body. To be fair, the United Nations High Commissioner for Refugees prefers that states operate their own refugee status determination systems, and UNHCR only conducts status determination when states cannot or will not do so. The UNHCR also identifies refugees in need of resettlement, but states set their own quotas and are free to accept or refuse candidates for resettlement. The structural hostility of receiving states to asylum seekers plays out partly through the ever shrinking percentage of asylum seekers who are recognised as refugees by bureaucrats operating within that system. With each new category of vulnerability that is added to the migration regime, whether it is trafficked persons or children, we witness the same trajectory: it begins with the identification of a class of persons indisputably requiring protection from removal, travels through a thickening and curdling culture of suspicion, and arrives at an end state where destination state officials ‘know’ that almost all persons claiming to be trafficked are smuggled (and therefore excludable), virtually all asylum seekers are economic migrants (and therefore excludable), and many children have the skeletal maturity of an adult (and are therefore excludable).
What does this mean for Džankić’s and Bauböck’s proposal? The same sovereignty objection that makes them skeptical about a more straightforward ‘open borders’ claim also comes back to bite their own model. States have amply demonstrated their regret at binding themselves to the obligations contained in the Refugee Convention. So, why would these same states sign on to the creation of yet more classes of people who could enter their states at will?
To the extent that the ‘mobility passport’ would respect migrants’ autonomy to choose which country to enter, the relevant status would have to be determined by a supranational body and all participating states would need to be bound by the determination. The alternative would be to let any and all states determine status, and require all states to recognise and respect the grant of status by another state. This seems unlikely to work. And, in any event, one would have to anticipate the same ungenerous approach to interpreting and applying the relevant definition of migrant worker or environmentally displaced person as one observes with respect to refugees, trafficked persons and children. So, the proposal would deal a double whammy to sovereignty-as-border-control: first, by endowing millions of people with a status that entitles them to cross international borders on their own initiative; secondly, by ceding authority to a decision-making body beyond the state to endow that status.
If states were willing to pool their sovereignty and cooperate in an international regime in the manner required to achieve lift-off for the proposal, we would be living in a very different world. And in that world, many programmes of action would be feasible, including (but not limited to) Džankić’s and Bauböck’s salutary proposal. In saying this, I do not mean to succumb to the despair of the current moment. It is easy to summon reasons to be pessimistic. It is important to innovate and demonstrate that another world is possible – if there is a will to create it. Unfortunately, a deficit of political will cannot be filled by technology, whether it is the legal technology of citizenship or the material technology of a passport. If and when states come to the table, Džankić’s and Bauböck’s proposal deserves to be on the menu. But something else is required to bring states to the table. So far, a hunger for justice has not been enough.
 Article 31: The Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened …enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.