Legal and political discussion around maritime migration began long before the current crisis. In 1976, a speaker at the American Society of International Law annual meeting warned his listeners of a surge of migrants that will land on beaches in the early 21st century: “The little old ladies in tennis shoes will bring them tea and toast – at first [But] What will the Australians do when the number reaches one million or two or three?”
When I started to ponder Humanity at Sea about a decade ago, migrants at the maritime crossings between the “developed” and the “developing” worlds had already generated significant interest among commentators. But these earlier conversations did not prepare for the events of the so-called refugee crisis, and the media’s near-obsession with the subject. The images we all saw starting from August 2015 chillingly rendered real what I initially thought of as a metaphor — bare and extreme – for the most basic dilemma about human rights: where do human rights come from?
In the book, I argue that human rights obligations cannot emanate from consent to human rights treaties, as voluntarist and positivist accounts of human rights would argue. If that were the case, there would be no problem (from the perspective of human rights), for states to release themselves from all such obligations, including those understood as peremptory. But from a perspective skeptical of any normative content to “human nature,” they also cannot be derived from our natural composition. The encounter with migrants at sea hinted at this difficulty; it also illustrated that abandoning human rights altogether – a move advocated by critics both from the right and from the left – was not a persuasive option. Those of us who found ourselves moved by these images had to account for what moved us; and, indeed, to explain to ourselves if that experience reflected any real commitment beyond a mere sentiment.
Human rights, I believe, are based at one and the same time on two powerful forces: one is the force of claims made by people willing to take extraordinary risks to assert their equal membership in humanity. The other is the force of a conviction, held by those who have enforceable legal rights emanating from their own states, that all humans must have some rights. These two components of human rights correspond to the two parties of the encounter at sea: migrants seeking better lives, and agents of states (e.g. coastguard forces) as well as other vessels able to render assistance.
But what exactly was it that made the plight of maritime migrants a compelling metaphor long before it turned into a macabre spectacle?
Readers of this blog will be familiar with the doctrine of the freedom of the high seas, and with the legal construction of the high seas as kind of global commons. For a legal theorist, the sea provides an interesting contrast to state territory, where law generally reflects completely different underlying assumptions (e.g. drawing borders and allocating private property rights). Furthermore, the law of the sea is special as it includes a duty of rescue imposed upon individual seafarers. Migrants travelling on the high seas are not within the jurisdiction of any state. But the duty of rescue grants them (limited) opportunities to invoke the responsibilities of other travelers (and thus of the states where their boats are registered). When someone is calling for help, the law of the sea expects us to respond.
The telling contrast here is with the common law, where a duty of rescue is expressly rejected. Social contract theory allocates duties of protection to the sovereign instead of to the fellow person. In light of of these peculiarities, the sea becomes a stage for an interpersonal encounter between humans in which rights and their corresponding duties are temporarily reoriented and scrambled. This allows us to rethink longstanding views about the nature of rights.
But there’s also a relevant cultural background, which goes back to Freud. Think of the symbolic quality of water as unknown and dangerous, but also as a space of exploration and indeed a mythical birthplace. From a political perspective – very much related to the legal characteristics highlighted above – note that maritime space connects between richer and poorer regions on this planet. As a commander for the European border agency Frontex explained as he penned archipelagos on paper during a 2009 meeting, territorial borders — in contrast to maritime ones — can gradually be closed.
The moment of encounter functions in the book as a crack in the positive legal order through which existential questions about human rights can be (re)introduced into the discipline of international law: what minimal duties do we owe each other as humans? What minimal demands do we have upon each other as humans? Rather than being exclusively moral or political, these questions are (also) legal. They do not invite us to imagine a faraway utopia (surely an important moral and political task). They are posed to direct behavior here and now. The imaginations of an encounter with the boat person — and of being a boat person within such an encounter — suggest a kind of challenge or test. It is meant as a thought experiment that allows us to discover our most basic rights and duties.
On the one hand, if there is no other authority or person who can lend a hand to that person in a life-jacket, I am obligated to do something. I may not have chosen to be caught in this situation. I may prefer an international legal regime that would make it unnecessary for that person to be in a boat in the first place. But now that this encounter has occurred, the self is implicated. I must ask myself what would make me go on such a risky journey, perhaps with my family, including young children, and what would I expect from others; not as a matter of charity or sound policy, but as a matter or duty.
The maritime legal duty of rescue tracks both these aspects of the thought experiment, even if on its own its protections are incredibly thin. As the book shows, this will ultimately not only be about a humanitarian protection of bare life. If the person I saved cannot go back to their country (and is accepted as a refugee), my own country may end up having to open its social contract to accommodate her. Against the backdrop of a Western political tradition premised on membership within a pre-defined group, I take this to be an important complementary account of the basis of law.
Each of the book’s chapters explores this encounter in a different way, moving between the two unequal perspectives: that of a relatively stronger party able to assist and that of a weaker party who has nothing to lose. Rather than relying on a purely speculative account, the book illustrates this theory of human rights through a reading of history. Each of the chapters aims to shed light on a different aspect of this theory’s basic structure through a distinct historical episode. The first chapter tells the story of the passengers of the Exodus. These displaced and stateless people debarked from the south of France for Palestine in 1947. Instead of referring to the Exodus as part of a Jewish national struggle for liberation, my reading shows that the journey was also about a basic claim of membership in humanity.
The next chapters tell the stories of Southeast Asian refugees after the Vietnam War (Chapter 2); Litigation related to Haitian refugees aiming to enter the United States in the 1980s and 1990s (Chapter 3); Middle Eastern and Afghan refugees seeking the shores of Australia in the beginning of our century (Chapter 4); and Sub-Saharan refugees leaving Libya for Europe after the war that broke out in 2011 (Chapter 5). Chapter 6 provides a close reading of Jean-Claude Juncker’s State of the Union speech in September 2015, in which he addressed the “refugee crisis.” After the conclusion, the book ends with a short postscript going back to the Biblical text of Exodus, offering a rereading of the encounter between Pharaoh’s daughter and the baby Moses in the ark of bulrushes.
As the narrative arc unfolds the book gradually turns grimmer. A few basic insights are particularly relevant to introduce the darker sides of the story. First, it must be admitted that international law often shuts down the ethical imperatives of interpersonal encounters, while “human rights” are often invoked precisely to extinguish the transformative politics of refugees and migrants. Second — as Ralph Wilde and Jaya Ramji-Nogales have astutely noted — international law sometimes constructs the crises in which migrants find themselves at great risk. Third, relatedly, international law may at times create incentives that increase deaths at sea. I hope the historical and phenomenological approach I chose helps reveal how these critical insights can be engaged with and not blindly ignored, and still leave room for a certain kind of human rights commitment.
I’m deeply thankful that the editors at EJIL:Talk! chose to provide a venue for conversation around the book on this important blog. Each of the commentators included in the symposium has made their own formidable contributions defining the burgeoning field of global migration law. They are perfectly situated to provide responses, and I can’t wait to read what they had to say.