Migration, Protest Movements and the Politics of Resistance

A Radical Political Philosophy of Cosmopolitanism

Tamara Caraus, Elena Paris

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429871719
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Migration and cosmopolitanism are said to be complementary. Cosmopolitanism means to be a citizen of the world, and migration, without impediments, should be the natural starting point for a cosmopolitan view. However, the intensification of migration, through an increasing number of refugees and economic migrants, has generated anti-cosmopolitan stances. Using the concept of cosmopolitanism as it emerges from migrant protests like Sans Papiers, No One Is Illegal, and No Borders, an interdisciplinary group of scholars addresses this discrepancy and explores how migrant protest movements elicit a new form of radical cosmopolitanism.

The combination of basic theoretical concepts and detailed empirical analysis in this book will advance the theoretical debate on the inherent cosmopolitan aspects of migrant activism. As such, it will be a valuable contribution to students, researchers and scholars of political science, sociology and philosophy.

PART I
Cosmopolitical Resistance

1
MIGRANT PROTESTS AS A FORM OF CIVIL DISOBEDIENCE

Which Cosmopolitanism?

Frédéric Mégret

Migrant protests vary in nature, size, and motivation. But what do they mean? What kind of moment or sensitivity do they express? Who are they addressed to? And if they are cosmopolitan, in what way are they so? Talk of cosmopolitanism often reveals a variety of conceptions, not all of them compatible. It is therefore not enough to make the argument that migrant protests are cosmopolitan in nature; rather, one must show what implicit concept of cosmopolitanism they betray and, indeed, contribute to bring about.

In this chapter, I propose to analyse whether cosmopolitan claims underlie migrant protests by looking specifically as those migrant protests that might be understood as expressing a form of civil disobedience. For the sake of simplicity, I follow Rawls’ classic definition of civil disobedience as a “public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government” (Rawls 2009: 320). There are three dimensions to the meaning of civil disobedience that are particularly relevant to how one conceptualizes its role in relation to migrant protests.

First, I am concerned with the extent to which migrant protests can be understood as so many challenges to the law specifically. Much theorizing about freedom of borders does not take the law particularly seriously, as if the law were merely a tool of the deeper project of exclusive sovereignties and borders. Yet the law is also very much constitutive of the power of the state to exclude and a technology of state control that comes with its own baggage. To protest one’s exclusion from the territory of a sovereign state is to protest the laws that make such exclusions possible. The law manifests both a sovereign form of violence and a claim about its justifiability, making the law’s contestation particularly central to many forms of political protests. The point of looking at the law in this context is that the law is both a major obstacle to free movement and, potentially, a major way of contesting obstacles to it. The law also acts as a focal point of tensions between radically incommensurable points of view on the movement of persons. Finally, law violation has a way of radicalizing normative commitments given the consequences: evidently migrants often find themselves on the wrong side of the law, not just poor moral and political choices. Civil disobedience acts as a sort of litmus test of how far migrants are willing to go to frame their struggles as civil disobedience aimed at the law as such. Note that in being interested in civil disobedience as a form of complex violation of the law embedded in the law, I will be looking at forms of protest that fall below rebellion, insurrection, or revolutionary action because they are non-violent.

Second, in shifting the emphasis on actual disobedience, the idea is to think less about how illegal border crossings might be framed in theory and more about how migrants themselves, thrust onto a political stage by virtue of their predicament, construct their protests. The idea, then, is to take seriously migrant agency as something that is crucial to our understanding of whether there is civil disobedience and of what kind. Indeed, I am wary of any suggestion that migrants might engage in civil disobedience without knowing it: almost by definition, civil disobedience involves purposeful action. By focusing on civil disobedience, then, conceived as a purposeful action expressing itself in the language of defiance to law, there is less risk that one will impute a political agency to protesters that may not always be there¹. In doing so, I hope, in the spirit of this book, to bridge theories about cosmopolitan migration and an observation of the actual sites and practices of civil disobedience as constituting forms of cosmopolitanism. The former will shed light on the latter, but ultimately it is the latter that I consider to be determinative of actual, actor-driven cosmopolitanism. As Thomas Nail has argued, cosmopolitanism “is not just about the creation of globally fair and inclusive laws and institutions; it is more importantly about the popular struggles required to demand and win those laws in the first place” (Nail 2015: 192). Specifically, although bottom-up cosmopolitanism is distinct from theories about cosmopolitanism, it crucially enacts and subverts them in ways that the theory cannot fully account for and that introduce a rich, lived, and idiosyncratic dimension to the debates. Hence, looking at civil disobedience and protests by migrants more generally is one of the crucial ways in which we can grasp “the work of constructing and performing a cosmopolitanism from below via normatively and politically oriented forms of global social action” (Kurasawa 2004: 233–234).

Third, the key preliminary point here is that migrants fit somewhat oddly in the civil disobedience pantheon and thus provide an opportunity to problematize it, including as it pertains to notions of community. Civil disobedience, traditionally, implies a fidelity to the law and a sense of conscientiously (if not legally) serving one’s own society through one’s disobedience to its laws. In particular, civil disobedience only makes sense within a society whose legal order the civil disobeyer recognizes as minimally legitimate, so that she is, in fact, invested in making it change by submitting herself to it. There is a difference between disobeying the law, and simply violating it. A theory and practice of disobedience must therefore paradoxically be based on a degree of fidelity to the law, one in which the need to disobey it is weighed against the duty to obey it. Crucially, the civil disobeyer will accept her punishment in advance in an effort to confront society rather than run from it. This means that civil disobedience will typically be a last resort, given the many alternative avenues open to citizens. Moreover, the civil disobeyer cares enough about the law and wanting to make it right (because she is evidently a part of the relevant society) that she is often ready to accept her punishment, if only in recognition that although she may find laws unjust, they are still the laws of the state.

Migrants, by contrast, operate by definition from a place of non-citizenship and non-inclusion. This means that they may be more easily freed from the need to obey the law, because there are so few options for them to manifest against it except through disobedience. Moreover, because they typically do not share a sense of fidelity to the law, they may be less sensitive to the potential harm of violating it on the host society. If and once they do violate the law, they may also be less inclined to be ‘civil’ about their disobedience. Their relationship to the law of the host state is not only more fraught; it is also more transient and fluid. Where a citizen may feel that she must accept the consequences because she will continue to live with the laws of the state, and because there is value in respecting the idea of the rule of law, the migrant faced with unjust laws may not have such patience with them nor conceivably owe them the same deference.

Reformulating the canon of disobedience as disobedience by migrants thus raises novel questions about its nature. Does the disobeyer sufficiently belong to the society whose laws she contests? What is one invoking against the law of the state given migrants’ peculiar position? Is it some higher law? A pure case for cosmopolitanism? International law? Human rights? What if none are helpful? The question of civil disobedience also raises the issue of legal subjectivity, specifically, “am I sufficiently a subject of this legal order to engage in civil disobedience against it?” The exclusion of migrants from the legal order of the state means that their position of disobedience may be ambiguous: one cannot properly disobey what one is not obliged to obey in the first place or at least that which one is not particularly committed to respecting; at the same time, one may constitute oneself into a subject in the process of disobeying. Finally, migrant civil disobedience raises questions about its addressees and communicative dimension: is it arguing for the improvement of a particular society or more radically trying to transcend the notion that any particular society needs to be the target of civil disobedience? Are migrants protesting the wrong laws, or do they know exactly what laws they are protesting?

This chapter will make three related claims. The first is that cosmopolitanism serves as a crucial variable to understand the nature of migrant protests as expressed through civil disobedience. Cosmopolitanism is defined, at a minimum, as a commitment to the equal dignity of all human persons. However, quite different consequences may flow from that very broad premise. Civil disobedience might be based on a sort of Grotian cosmopolitanism, arguing merely, for example, in favour of granting asylum, as international law very much does, to those who flee persecution; or it could be based on a more republican notion of access to citizenship as soon as one fulfils certain entry conditions; or it could be based on a more radical cosmopolitanism, based on (at least presumptive) freedom of movement for all and possibly claims about the need to thoroughly rethink citizenship. Accordingly, this chapter will distinguish between three cosmopolitanisms: (i) a cosmopolitanism of law and human rights, which merely argues that all migrants should be treated with dignity, (ii) a cosmopolitanism of inclusion and hospitality, which argues that migrants have a strong prima facie right to be included in the society to which they have moved, and (iii) a cosmopolitanism of freedom of borders, according to which there is a deeper right to migrate.

Second, the chapter will suggest that there is an inversely proportional relationship between the ability to engage in civil disobedience and to express more radical forms of cosmopolitanism. In other words, a migrant can make claims of radical cosmopolitanism, but it then becomes difficult to subsume those under a traditional model of civil disobedience; or she can engage in civil disobedience but typically at the cost of downgrading her cosmopolitan ambition. This may merely reflect the fact that civil disobedience needs the anchoring of a particular legal system, whereas cosmopolitanism invokes norms that go beyond any legal system. Although it seems that one cannot have it both ways, the chapter will be attentive to how the more radical cosmopolitan claims can be a way of not simply ‘doing’ civil disobedience, but also ‘redefining’ it – a sort of disobedience to ‘civil disobedience.’

Third, migrant civil disobedience is not typically, nor ought to be, solitary. In particular, it often arises at the point of encounter between the migrant and local citizens as the crucible of moral duties and political solidarities and, as a result, produces mixed registers of legal disobedience. Migrants can often only engage in civil disobedience with the help of local relays, whilst for local citizens migrants raise a somewhat less improbable version of the classic cosmopolitan question of the duty towards strangers. The encounter between the migrant and the citizen therefore emerges as a sort of intermediary stepping stone between cosmopolitan demands and local democratic moorings. Is the civil disobedience of the guest the same as that of the host? Does civil disobedience negate the difference between the two, or does it reinforce it? The chapter will suggest, in connection to all these claims, that migrant disobedience constantly challenges the theory and boundaries of cosmopolitanism.

“We Are People Like Everyone Else”: A Cosmopolitanism of Law and Human Rights

A first variant of the cosmopolitanism involved in migrant civil disobedience might be simply that one is invoking respect for the law (be it domestic or international), specifically as it protects human and refugee rights, against the state’s inclination to ignore it. Many of the protests, by migrants themselves or their local helpers, are not really about freedom of movement but against the hardships created for migrants in unwelcoming societies that police them brutally or against specific denials of asylum that seem incompatible with international law and human rights. This form of protest clearly has a foundation in a basic cosmopolitanism of respect for human beings and an effort to avoid undue hardships on them. It is a thin cosmopolitanism of bare humanity from which a particular subgroup of migrants stand to benefit, because they happen to have a meritorious claim under that system (e.g. because they are persecuted). If and when disobedience does occur, the migrant is in a situation of being able to symbolically turn the table on the host society: demanding that it respect its own laws, its international obligations, and international law.

In that respect, it is a form of disobedience primarily anchored in a strong deference to the existing legal framework. Civil disobedience in this scenario is more conventionally a last resort because there are many legal ways in which one can challenge the failure to uphold the law and no shortage of litigation avenues being pursued. In that respect, despite not being citizens, migrants have significant legal and political avenues available to them. For example, in Calais, a number of NGOs and migrants sued the French state to require the authorities to behave with more humanity. Their demands were quite basic: water, access to toilets, some food, some legal information, and the end of police harassment. In Ireland (Roche 2016) and Germany (Oliphant 2016), migrants have protested delays in processing asylum claims. In the USA, migrants have protested their conditions of detention, and asylum seekers have sued over prolonged detention (Reuters, 15 March 2018), separation from children (Reuters, 9 March 2018), or forced labour (Phillips 2017). Almost all legal work done in favour of migrants partakes of a similar fundamentally legalistic framework. Even when not using specifically legal means, migrants might be using forms of protests that are fundamentally legal.

Having said that, in a context where migration is increasingly criminalized and the authorities, including the judiciary, are committed to repressing it, engaging the legal system may seem like a fraught strategy. As one scholar points out, the

focus on procedural enhancement is woefully incomplete as a vision of immigration justice, even as it serves to protect certain vulnerable individuals. Although a right to counsel, for example, may provide comfort and aid to certain vulnerable individuals, such procedural protections are unlikely to change the quasi-criminal character of immigration enforcement or to address the plight of the millions of people without a path to lawful status.

(McLeod 2016: 559)

Purely legal avenues may merely reproduce the legal structure that excludes migrants in the first place, weaken migrant solidarity, and disempower migrant protests. This is true even of international human rights law, which, although it invokes the idea that the host state has duties towards the undocumented migrant, also triggers the state’s jurisdiction to deport (Noll 2010), and for which migrants have always been a bit of a blindspot (Helton 2000; Dauvergne 2004). As a result, it has been suggested, for example, that those who criticize migrant deaths at the US border focus on “epiphenomenal factors” and neglect “the principle reason why such deaths occur: the very presence of the international boundary as an enforced line of control” (Nevins 2003).

This may then lead to calls for civil disobedience, although it is unclear whether even civil disobedience, if it takes as its point of departure the existing law, can do much to upset its premises. For the relatively legally privileged kind of migrant (i.e. those who can hope to make the case that they ought to be granted asylum), civil disobedience also raises the strategic risk of compromising what is a possibly promising legal route by disobeying the law. Moreover, the difficulty for many migrants is that, already being in an illegal position, further disobeying the law might be inherently difficult. One’s illegal status already accounts for a considerable degree of illegality, and it is challenging to transform that presumptive illegality along the way into civil disobedience (unless one crossed the border illegally in the first place as an act of civil disobedience, which, as I have argued, is relatively unlikely).

To engage in civil disobedience in such a context may thus first entail a sort of ‘coming out’ as an unlawful migrant, and a willingness to put oneself in an exposed position of vulnerability precisely in order to claim o...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Contributors
• Acknowledgments
• Introduction: Migrant Protests as Radical Cosmopolitics
• PART I Cosmopolitical Resistance
• PART II Cosmopolitical Agency
• PART III Cosmopolitical World-Building
• Index