BY: MIRA SAWIRIS
The idea of personal freedom, and by extension the freedom of an individual to exercise his or her autonomy to move freely is probably as old as humankind, but the notion of a person’s movement across nation-states’ borders freely as a legal right is a relatively new development.
Although Article 13 of the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, enshrines the ‘right to freedom of movement’, it is only guaranteed in the context of a state territory, provided that a person is residing there lawfully and furthermore, is subject to interests of national security. It also states that ‘Everyone shall be free to leave any country, including his own’ but it does not comment on the individual’s right to enter another country, precisely because that is where individual freedom meets the legal concept of national sovereignty.
The 1951 Convention Relating to the Status of Refugees (Refugee Convention), adopted as a response to the atrocities of the Second World War, goes further in that it builds on Article 14 of the Universal Declaration of Human Rights that already guarantees the right to ‘asylum from persecution’, but the Refugee Convention also adds that ‘refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. This represents the only case in which a person’s right to freely move across borders legally overrules the concept of national sovereignty, and with the strengthening of the security agenda in the West, even this exception has become very problematic.
The third stage of developing the concept of the right to move freely across borders has been manifested in the process of European integration, as it became one of the EU’s normative and existential cornerstones. This process began as recently as 1985, when the first Schengen agreement was signed, abolishing internal borders among the signatory states and allowing for free movement of people, goods, and services (BBC News, 2016b), while the Treaty of Maastricht of 1992 guarantees ‘the right of EU citizens and their family members to move and reside freely within the EU’ . This, however, does not mean that the contradiction between the concept of national sovereignty and individual freedoms has been resolved in favour of the individual in the context of the EU’s fluctuating territory. Rather, the concept of national sovereignty has been overlaid with that of supranational sovereignty, thus enlarging the space within which an individual of a member state can move freely.
Even the current most expansive definition of the right to free cross-border movement was challenged by the looming departure of the United Kingdom from the EU, as related to the 2015 European migrant crisis, with individual EU member states demanding reestablishment of border controls in the wake of unprecedented numbers of asylum seekers from the Middle East and Africa. Thus, the precedence of national sovereignty over individual and human rights has once again gained momentum. With the unwillingness of some member states such as Slovakia, the Czech Republic, Hungary, and Poland to accept a quota system which would enable proportionate integration of asylum seekers and refugees into individual member states, it remains to be seen whether and with what modifications, the European notion of the right to move freely across borders will survive and whether the 1951 Refugee Convention will be honoured, and if so, to what extent.
Currently however, it is clear that the freedom of cross-border movement exists as a right in itself only under a set of very specific conditions such as being a national of an EU member state, which allows one to move freely within the scope of territories of the EU; or when fleeing from war and persecution, which should theoretically grant the right to move freely to those states that are signatory to the Universal Declaration of Human Rights and the 1951 Refugee Convention. However, the reality as experienced by thousands of mistreated asylum seekers in Europe or detained EU nationals in other EU member states is often very different. Even if one of these conditions is fulfilled, in practice the person’s right to move is still subject to the concept of national sovereignty, security, interest or simply to contemporary political climate.
Politics of Identity and Fear
The tension between individual human rights on one hand and national sovereignty on the other, explains how cross-border migration became managed by state-controlled border regimes over the course of the 20th century. However, it does not provide an account for why some kinds of cross-border migration are deemed much more problematic than others by Western state authorities, political leaders, media and public alike. For example, the migration of residents of Yemen and Syria to the US is generally perceived as much more problematic than immigration from Germany, as demonstrated by the US travel restrictions on six countries with large Muslim populations, even though the combined number of immigrants of Yemeni and Syrian origin in the US in 2015 amounting to 127,000 individuals was much lower than the number of persons moving to the US from Germany which amounted to 585,000 people in that same year. Despite the numbers, it would be very difficult to find state authorities and media outlets discussing the threat posed to national security by the German migration to the US.
Edward Said’s theory of cultural legacies of colonialism, as discussed in Orientalism (2003), securitisation theory of the Copenhagen School (Peoples and Vaughan-Williams, 2015) and conceptually closely-related Richard Jackson’s critical discourse analysis of the language and vocabulary deployed by the US political elites to justify the permanent War on Terror (2005) form a relevant theoretical basis for analysis of contestation of particular kinds of cross-border migration.
Immigration policies are often formulated at least partially in response to popular public sentiment. This sentiment is in turn shaped by the contemporary social and cultural climate as defined by systems of knowledge production that allow a society to construct a particular understanding of the world and its role within it. In other words, these systems of knowledge production play an important role in constructing a community’s identity and sense of belonging. Identity is easier defined by what it is not, as contrasting the category of the outside ‘other’ allows for simple identification with one of the two oppositions, out of which one is deemed preferable: day versus night, dark versus light, male versus female or Western versus Oriental, all of which are culturally relative. According to Said, the Western versus Oriental dichotomy stems out of a long history of Western imperialism for which the inferior, unreasonable, wild, and savage representation of ‘Orient’ had to be invented by the French and the British, so that it could be ‘enlightened’ and managed by the colonial powers, allegedly for its own good. It would be naïve to assume that this cultural imperialism ended with the era of colonialism; on the contrary ‘since World War II America has dominated the Orient, and approaches it as Britain and France once did’. These misrepresentations of Middle East and Africa are pervasive in Western cultural productions and media to such as extent that finding a representation of these cultural and geographical spheres without stereotypical and racist overtones is rather difficult. These misrepresentations are not accidental, but serve to justify Western involvement in the geopolitics of the Middle East, as well as to construct non-Western lives as inferior and undeserving of protection, thereby avoiding the unpleasant task of addressing their loss in the Middle Eastern military conflicts, where they represent only a collateral damage, or in the Mediterranean Sea, where they represent the threat of un-civilisation reaching Western shores.
These perceptions of the Middle East and its cultural signifiers such as the Arabic language, Islam, or items of female clothing representative of the region such as headscarves, niqabs and burkas became implicitly and sometimes explicitly associated with threats to national security of Western democracies and existential threat as a result of deliberate attempts to securitise the Middle East, and by extension mobility and migration, which bring the Middle East too close for comfort.
There continues to be a permanent conceptual tension between human mobility and the notion of national sovereignty, but since the launch of the War on Terror the tension has been raised to a brand new level by the US state authorities, and this understanding – one that frames mobility and migration as a permanent existential threat and a risk requiring sacrifices in the form of curtailing human rights and privacy – has been widely accepted by populations of Western states, leading to the decline in the quality of democracies in these countries.
Facts On The Ground
While the global security regime is the ideological result of the permanent War on Terror, it also caused unintended foreign policy failures as manifested in the overall destabilisation of the Middle East, and the failed state of Iraq in particular. This in turn produced fertile ground for yet another form of Islamist terrorism – the extremist organisation referred to as Islamic State of Iraq and the Levant, to emerge in the region, justifying the necessity for ongoing military involvement in the Middle East.
The Middle East and North Africa were further destabilised by the consequences of the Arab Spring, as the fall of Gaddafi’s regime in Libya created opportunities for burgeoning slave trade, while the ongoing civil war in Syria has caused almost complete destruction of the country and exodus of Syrian refugees from the region. Russian President Vladimir Putin’s long-standing support of the authoritarian regime of the Syrian President Bashar al-Assad, as well as Russian direct military involvement in the conflict caused mass migration that was used as a weapon against liberal democratic states – in this case, the EU. In its inability to establish a fair and efficient system to provide asylum, protection and integration to refugees arriving in Europe, the EU not only damages its reputation as a harbinger of human rights internationally, eventually it also threatens the bloc’s unity as demonstrated by the imminent withdrawal of the UK from the EU, and arguably one of its unique achievements – the free movement of people, goods, and services. Coupled with lingering economic instability from the 2008 financial crisis, this has contributed to general feelings of instability and fear, with migrating populations being perceived as unnecessary competition for resources at best, or as ‘illegal’ criminals and threats to national security at worst.
Despite the current intensifying contestation of migration as manifested in public media discourse and policy measures taken by governments to further regulate, control and restrict cross-border movement of individuals, challenging any notion of freedom of movement as a right in itself; in an era of globalisation with its ever-increasing interconnectedness and multi-faceted dependencies, migration may not be a universal right yet, but it is globalisation’s major characteristic feature, regardless of its tendency to polarise opinions. Both migration, as well as its contestation, are here to stay.
The question is whether governments of Western democracies will ever be able to de-securitise and separate the issue of migration from the security agenda and address the economic and international political factors that contribute to contemporary perception of migration as a threat, eventually placing the individual’s freedom to move above the national security agenda. Such a change would in reality represent a paradigm shift from the static understanding of the international system as consisting of nation-states and their national interests, to a system understood in terms of fluidity and movement. Until then, the right to move freely will not represent much more than an unachievable ideal.
Mira Sawiris is an experienced Communications Coordinator and Data Analyst with a demonstrated history of working in research as well as higher education industry. She has a BA in Arabic and Russian Civilisation from University of Leeds, and is currently pursuing a Master’s Degree in International Relations at the University of York.
Photo Credit: AP/Petros Giannakouris
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