Of States, Rights, and Social Closure: Governing Migration and Citizenship

Of States, Rights, and Social Closure

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Of States, Rights, and Social Closure Governing Migration and Citizenship

Edited by Oliver Schmidtke and Saime Ozcurumez

of states, rights, and social closure Copyright © Oliver Schmidtke and Saime Ozcurumez, eds., 2008. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2008 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, NY 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS. Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978-0-230-60031-7 ISBN-10: 0-230-60031-X Library of Congress Cataloging-in-Publication Data Of states, rights, and social closure : governing migration and citizenship / edited by Oliver Schmidtke and Saime Ozcurumez. p. cm. Includes bibliographical references and index. ISBN 0-230-60031-X (alk. paper) 1. European Union countries—Emigration and immigration. 2. Minorities—European Union countries. 3. North America—Emigration and immigration. 4. Minorities—North America. 5. Citizenship. 6. Marginality, Social. I. Schmidtke, Oliver. II. Ozcurumez, Saime. JV7590.O42 2007 325'.1—dc22

2007024340

A catalogue record of the book is available from the British Library. Design by Scribe Inc. First edition: January 2008 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

Contents List of Tables and Figures Contributors Introduction Part I

v vii

National Closure and Beyond Oliver Schmidtke

1

The Normative Debate on the “Liberal Paradox”: Of States, Rights, and Social Closure

1

Immigration, Democracy, and Citizenship Joseph H. Carens

17

2

Noncitizens and Discrimination: Redefining Human Rights in the Face of Complexity Donald Galloway

37

3

National Sovereignty, Migration, and the Tenuous Hold of International Legality: The Resurfacing (and Resubmersion?) of Carl Schmitt Jeremy Webber

4

Borders in Public Perception: Renationalizing Modes of Inclusion and Exclusion Oliver Schmidtke

61

91

Part II Limits of Governing Migration and Citizenship 5

6

7

8

We Are All “Republican” Now: Changes in, Prospects for, and Limits of Citizenship in Germany Thomas Faist and Jürgen Gerdes

113

The Institutional Setting of Naturalization and Multiple Citizenship: A Comparison of German and Dutch Policies Anita Böcker and Dietrich Thränhardt

135

Immigration Reform in Germany: The Domestic Debate under the Red-Green Government Imke Kruse

157

Territoriality in Diasporas and Transnational Communities Riva Kastoryano

179

vi Contents

Part III Toward a Postnational Constellation? Politics and Policy Formation in Europe 9

10

11

Borders, Territory, and Migration in the European Union: From the Politics of Migration in Europe to the European Politics of Migration Andrew Geddes The Denationalization of Immigration Politics: Is It Happening and Who Benefits? Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy Immigrants and Participation beyond the Nation-State: Opportunity-Capability Rift in EU Immigration Policy Process Saime Ozcurumez

205

225

257

Conclusion Crossing Borders of States and Border-Crossing of Rights Saime Ozcurumez

279

References

285

Index

303

Tables and Figures Tables 4.1 6.1 6.2

6.3 6.4 8.1 8.2 10.1 10.2 10.3

10.4

10.5

Overview of the discourse on immigrants in German print media Naturalization rates in selected European countries, 1990–2000 Large naturalization groups in Germany and the Netherlands and the acceptance of multiple citizenship in 2000 Dual citizens and foreigners in the Netherlands, January 1, 2003 (thousands) Naturalization rates of selected immigrant groups in the Netherlands, 1996 and 2001 Types of “long-distance nationalism” Relation to the state Territorial scope of actors in immigration and ethnic relations politics, by country (MERCI data 1992–1998) Spatial framing of claims in immigration and ethnic relations politics, by country (MERCI data 1992–1998) Overall scopes of claims in immigration and ethnic relations politics, and extent of multilevel claims making, by country (MERCI data 1992–1998) Overall scopes of claims in immigration and ethnic relations politics, and extent of multilevel claims making, by issue field (MERCI data 1992–1998) Average discursive position on issues in immigration and ethnic relation politics, by claim scope and issue field (MERCI data 1992–1998)

98 138

146 147 151 183 188 233 236

239

240

240

viii Tables and Figures

10.6 10.7 10.8

Distribution of actors by overall claim scope (MERCI data 1992–1998) Average discursive position on immigration politics by claim scope (Europub data, 1980–2002) Distribution of actors in immigration politics by overall claim scope (Europub data, 1980–2002)

244 251 251

Figures 5.1 5.2 6.1

6.2 10.1

10.2

Access to citizenship in Germany since 2000 Belief systems of political parties in Germany: “Integration” Why foreigners who might otherwise be interested in obtaining German citizenship have not yet applied for naturalization (1993 percentages) Naturalization rates of Turks in Germany and the Netherlands, 1990–2003 Development of the percentage of claims with different scopes across the five countries (MERCI data 1990–1999) Development of multilevel claim scopes in immigration in the German press (Europub data 1980–2002)

114 126

142 149

246 248

Contributors Anita Böcker is assistant professor at the Institute for the Sociology of Law, Radboud University Nijmegen. Joseph H. Carens is professor of political science at the University of Toronto. Thomas Faist is professor of sociology at the University of Bielefeld. Donald Galloway is professor in the Faculty of Law at the University of Victoria. Andrew Geddes is professor in the Department of Politics at the University of Sheffield. Jürgen Gerdes is a researcher at the Center on Migration, Citizenship, and Development at the University of Bielefeld. Marco Giugni is a researcher and teacher in the department of political science at the University of Geneva. Riva Kastoryano is professor of social sciences at the Institut d’Etudes Politiques de Paris. Ruud Koopmans is professor of sociology at the Vrije Universiteit, Amsterdam and research director at the Wissenschaftszentrum Berlin für Sozialforschung (WZB). Imke Kruse is a research scientist at the Max Planck Institute for Human Development in Germany and program manager of the International Max Planck Research School LIFE. Saime Ozcurumez is a visiting assistant professor of political science at Bilkent University, Ankara. Florence Passy is professor of political science at the University of Lausanne. Oliver Schmidtke is an associate professor of political science and history at the University of Victoria where he also holds a Jean Monnet Chair in European history and politics. Paul Statham is professor of sociology at the University of Bristol.

x Contributors

Dietrich Thränhardt is professor of political science at the University of Münster. Jeremy Webber is professor in the Faculty of Law and holds the Canada Research Chair in Law and Society at the University of Victoria. He is director of the Consortium on Democratic Constitutionalism and visiting professor of law at the University of New South Wales.

INTRODUCTION

National Closure and Beyond Oliver Schmidtke

A

reas of research often follow a similar logic in their genesis and development: politically salient questions capture the imagination of the scholarly community and spark a theoretical debate. In order to confirm or disconfirm competing hypotheses, empirical studies are conducted, and, in due process, key assumptions are contested or modified. Then, after a period of heated debate, the theoretically driven research question tends to deplete its heuristic usefulness. One of the key reasons for this tends to be that, in light of a growing body of research, the world of empirical phenomena simply proves to be more complex than allowed for by the conceptual framework of the dominant research question. And, along the same line, generally theoretical debates have a tendency to gain an intellectual life of their own. If productive, these discussions can have a path-breaking impact on a scholarly field. Yet broad theoretical debates are prone to reach saturation, at which point they need to be replaced or complemented by a set of more conceptually fine-tuned, differentiated, and empirically oriented research agendas. Research on the role of the nation-state in regulating flows of immigration has reached such a critical threshold. Many of the debates over the past ten or fifteen years have been shaped by attempts to understand how changes in the nature of the nation-state, its position in a globalized environment, has come to shape flows of migrants and political attempts to regulate them and integrate immigrants into their new host societies. The underlying assumption in much of the scholarship in this field has been that unprecedented forms of mobility beyond national borders have created a new quality in patterns of migration. This refers to both the way in which migrants are increasingly able to move across national borders and how they challenge the historically

2 Oliver Schmidtke

salient idea of national communities as sovereign entities with clearly defined and enforceable rules of membership. To put it in an oversimplified way, those who see the advent of a qualitatively distinct age of immigration1 question the notion that the world can be neatly divided into distinct national communities in which immigrants are an exceptional and essentially transitory phenomenon. At the core of the argument is the altered status of borders and the implication of this status for governing migration and integration. Controlling borders and establishing rules of membership have historically been among the pivotal prerogatives of the sovereign nation-state. In the modern legacy of the Westphalian state order, borders were perceived to be the defining characteristic of the—territorially distinct—national community. In the age of the nation-state, borders were nationalized and, in ideological terms, naturalized. Borders separating culturally and ethnically homogenous nations and their states are the spatial narrative for modern politics and society. Friedrich Ratzel, a German geographer, once put this metaphorically as follows: “If the state was the body then the border was its skin.”2 It was due in part to this nationalization of borders and the associated claim to protect national sovereignty that the control of immigrants became a priority of nation-states.3 Rules of inclusion and exclusion established rights and duties of individuals, vis-à-vis their political community and a sense of collective identity for the nation. Recent developments, however, most prominently in the European Union (EU), have shown that notions of sovereignty, nationality, and borders are historically contingent and cannot simply be taken as universal settings for politics and society.4 In various respects, borders have become far more permeable, nation-states have compromised parts of their sovereign control over them, and the myth that borders differentiate ethnically homogenous groups has at least been seriously challenged. What appeared to be the “natural” precondition for modern politics and society has become manifest as a—historically contingent—political phenomenon itself. In terms of the scholarly debate, this has sparked a principal controversy about whether traditional concepts and methods of conducting research are adequate to address the new quality of migration. The critique of a methodological nationalism in the social sciences—essentially the idea that national society and politics are identical to society and politics as such5—is of immediate concern for research in the field of migration. The unprecedented degree of human spatial mobility across nation-state borders and the altered status of nation-states in the international arena have cast doubt on some of the notions on which research in this field has traditionally been based. Research on migration is particularly vulnerable to the claim that national categories provide the universally accepted and exclusive frame of reference

Introduction 3

for understanding social reality. The very idea of what constitutes “migration” is tied to the notion of distinct sociopolitical and territorial entities between which people move permanently. In the same vein, to talk about successful or failed integration essentially depends on a notion of a clearly defined (national) collective, a society in which newcomers are included. The critique of methodological nationalism is far-reaching in that it questions the very conceptual framework that scholarship has traditionally relied on.6 For instance, conceptually and politically, citizenship has historically been intimately tied to the nation-state. Most prominently, Rogers Brubaker7 pointed out how deeply entrenched established notions of citizenship are in distinctive traditions of nationhood. As Brubaker states categorically, the nation-state and its delineation of a political community set the institutional and subjective framework for the very notion of citizenship and the rights specified within: “Debates about citizenship, in the age of the nation-state, are debates about nationhood—about what it means, and what it ought to mean, to belong to a nation-state. As an institutional and socio-psychological reality, the nation-state is a distinctive way of organizing and experiencing political and social membership” (Brubaker 1990, 380). Along these lines, citizenship has been understood almost exclusively in terms of the nation-state. From a theoretical perspective, Hannah Arendt has lent authority to the interpretation according to which citizenship is to be understood as the inclusion into a nation-state by the attribution of membership by political inclusion.8 Following this reasoning, citizenship can be interpreted as membership in a nation and the related state authority to regulate it and, in terms of rights and duties for the citizens, assign meaning to it. Modern liberal democracies and welfare state provisions have historically been tied to national citizenship regimes and modes of defining membership.9 With such a conceptual understanding of the term, “citizenship” is defined as the exclusive membership in one nation-state and the transition from, as well as loyalty to, one citizenship status as the normality. Yet the degree of mobility and the practice of dual or multiple national bonds that can be found more and more often needs to be perceived as pathology, a deviation from the “normal.” It challenges the spatial framework of modern politics as nationally bounded. In this perspective, membership and forms of belonging beyond the nation-state are categorically excluded from what is feasible or desirable. The “national perspective”10 has traditionally shaped research questions and particular—politically important—perspectives on phenomena such as multiple citizenship or transnational existence. Recent scholarship has sought to conceptualize and understand better the challenges to the underlying national perspective on migration. Three

4 Oliver Schmidtke

interpretations that have contributed to this debate in the past decade will be introduced here: (a) the sociological account of transnationalism, (b) the challenged capacity of the nation-state to govern and control migration, and (c) the dilemma of liberal democracies to address the balancing act of protecting national sovereignty while promoting universal human rights. Transnational Spaces and Postnational Citizenship Research from a sociological perspective has pointed to the remodeling of the relationship between geographical space and social space.11 One can speak of a decoupling of both spaces, which radically questions the idea of spatially and socially exclusive territorial containers of political and social interaction. A qualitatively different degree of transborder mobility encourages us to revise our established categories when it comes to analyzing migration and citizenship in modern society. These phenomena have been viewed primarily in the context of a clearly defined territorial space, establishing an interpretative framework for processes of integration and acculturation as follows: “In a world where new forms of spatial practices are now widely in evidence, and where the deterritorialization of social relationships is in train, but where the old scripts and even older fictions—about fixed identities, feelings of ontological security, authenticity and, of course, about terrioriality, still abound.”12 In particular, the magnitude of immigration flows has provoked a critical re-evaluation of citizenship in contemporary liberal democracies.13 The classical notion of citizenship as a universalistic device for the gradual extension of social and political rights, as authoritatively formulated by T. H. Marshall14 some decades ago, seems to have lost some of its plausibility. The current debate has paid considerable attention to the question of citizenship regimes as a form of social closure. The latter establishes boundaries of social exclusion whose rationale becomes increasingly questionable when nationstates can no longer claim to provide the exclusive domain of the political community. Secondly, recent scholarship in this field has pointed out how the universalistic impetus in current citizenship regimes is structurally unprepared to adequately deal with claims that ask for the public recognition of cultural difference. Again, the fundamental question is whether current forms of citizenship in liberal democracies are not prejudiced in favor of the dominant ethnocultural group in that it categorically excludes the possibility of confronting issues regarding cultural diversity and pleas for recognition of ethnocultural difference.15 A related aspect of this debate discusses citizenship primarily with respect to the question of whether or not we can find forms of social integration and

Introduction 5

belonging to a political community that are not exclusively tied to the nationstate.16 What are the consequences for the established citizenship regimes if social and political rights become increasingly separated from legal membership in national communities? How do these regimes react to migrant groups that do not seek integration and recognition but whose social, political, and cultural status is increasingly defined by multi- or transnational patterns? Controlling Migration: The Nation-State and the Limits of Sovereignty The ability of states to set their own laws and standards in matters related to legal and illegal migration is constantly being challenged. Accordingly, scholarly research in the field of migration is in a critical phase of reorientation. Traditionally, the academic and analytical approach to studying the sociopolitical implications of migration has been premised on the assumption that governing migration is a central prerogative of the sovereign nation-state. Most studies focus exclusively on national immigration and citizenship regimes that remain culturally, politically, and institutionally distinct. Changes in forms and levels of migrants’ mobility bring into question the centrality of the role of the state in terms of controlling access to economic, social, and political rights. This has sparked a debate on the degree to which the movement of individuals across borders poses a challenge to the principle of state sovereignty.17 Over the past fifteen years, scholars have also debated whether or not liberal states still have the capacity to control immigration, and how varying national contexts affect legislation in this field.18 Again, one of the critical questions in this debate has been whether the nation-state is still the site of an exclusive authority to regulate migration and access to membership. There seems to be an emerging consensus (in particular from the North American discussion) to assume that the nation-state as the site of primary legislative and political authority is far from being rendered ineffective. Rather, under the auspices of securitization after 9/11, the nation-state seems to demonstrate remarkable resilience in terms of enforcing its policy authority in this area. In the European context, Europeanization places further pressure on states with respect to their capacity for determining and enforcing immigration and citizenship policies. Scholars have begun to address emerging questions on immigration, integration, and citizenship—considering the role of such concepts as dual, postnational membership, transnational citizenship, and nested citizenship—and by analyzing immigrant incorporation in different national systems.19 The European dimension underlines the transition of governance approaches in this field: as integration in terms of immigration policy on the

6 Oliver Schmidtke

European level is incomplete, and the resistance of national governments considerable, the task of doing away with sovereign rights governing migration in Europe is still characterized by contradictions and dilemmas.20 The Liberal Paradox: National Self-Determination and Universal Rights One of the driving forces behind the challenges to the nation-state is a structural decoupling of immigrants’ rights and national membership status. This has provoked a “liberal paradox,” here defined as the (increasingly acute) discrepancy between universal self-understanding of liberal democracies on the one hand, and liberal democracies’ parochial definition of “political community” and basic socioeconomic rights framed exclusively in national terms on the other. There seems to be an increasingly acute conflict between sovereign claims for individual states and the universal ideas of liberalism. Whereas liberal democracies advocate the protection of universal human rights, these precommitments are often compromised with reference to (perceived) threats to “national security.” In other words, to protect the democratic sovereign, rights to national self-determination are given priority at the expense of universal human rights. Seyla Benhabib’s recent work21 focuses on the normative implications of this paradox as follows: “The tension at the heart of the norms and practices of liberal democracies around the world with regards to political incorporation . . . [results from] the commitments of liberal democracies to universal human rights on the one hand and sovereign self-determination claims on the other.”22 Elaborating on this fundamental contradiction, Yasemin Soysal23 proposed conceptualizing forms of postnational citizenship in the 1990s. At the time, her suggestions sparked fierce criticism that pointed to the endemic limitations of moving citizenship rights beyond the nation-state and the lack of an effective legal-institutional framework to establish meaningful postnational citizenship rights.24 Still, Soysal’s basic point about the normatively doubtful and socially outdated national constraints on membership rights can still be seen as valid. Even though the institutional void has not yet been filled, the conundrum of restricting the rights of increasingly internationally mobile citizens to one exclusive national context alludes to an evermore pressing issue in contemporary European societies. While the dispute over the (self-)imposed limits of the nation-state in controlling immigration has been based on a set of general theoretical assumptions, most recent scholarship addresses the need to bridge the gap between theoretical debates and empirical research. Highly abstract debate about whether or not the nation-state’s capacity to respond to the new quality of

Introduction 7

migration has been depleted has proven to be increasingly unproductive. Rather, we need midrange theories to come to terms with changes in the nature of (international) migration and sociopolitical responses to migration in contemporary Western societies. Moving beyond the general debate on the fate of the nation-state allows formulating more focused and thus empirically testable hypotheses about international migration and its political, social, and legal implications. In addition, multidisciplinary accounts of the transformation of migration in the age of globalization and comparative perspectives are promising tools for gaining a more refined insight into the various dimensions of the phenomenon. Of States, Rights, and Social Closure contributes to these attempts to strike a balance between the normative-theoretical foundations of debates on immigration and citizenship and current empirical research in two major ways. First, it discusses the terms of the new agenda in research on immigration and citizenship in Europe from a variety of perspectives, particularly in the context of changing normative-theoretical convictions about the reach and limits of (citizenship) rights within and beyond nation-states. Second, it introduces a collection of empirical research findings on the extent to which migration policies and politics have surpassed the governing capacities of nation-states in the face of increasing levels of Europeanization. Of States, Rights, and Social Closure addresses two sets of questions. First, from a more normative perspective, to what extent have transnational practices and rights claims undermined the viability of the nation-state as the sole actor in the definition of citizenship and the structuring of the relationship between individuals and the political community? In response, the volume presents the critical exchange between normative and more empirically grounded accounts of how this paradox plays out in today’s social and political reality. Second, to what degree do we see change in how states and political authorities attempt to govern migration or seek to protect their central role in defining their own citizenship standards and laws? For instance, how do policies toward immigrants and refugees surpass the jurisdiction of national institutions? Are there emerging patterns of decoupling rights and entitlements from national membership standards (for example, citizenship rights)? To what degree have immigrants themselves established transnational patterns of interaction, participation, organization, and identity formation? Is there a trend toward transnational political initiatives and practices, or are we instead witnessing a readjustment in terms of modes of inclusion and exclusion (securitization of migration policies, new modes of national closure, and so on)? Are states engaged in transferring their sovereignty (to the EU level or to nonstate actors), and are new patterns of reaction and resistance emerging?

8 Oliver Schmidtke

The first part of this volume, The Normative Debate on the “Liberal Paradox”: Of States, Rights, and Social Closure, lays out some of the fundamental normative issues with the social and legal exclusion exerted by membership in modern, national citizenship regimes. Joseph H. Carens’s contribution discusses the moral and political challenges involved in the way that nation-states practice the exclusion of migrants and their children from citizenship. The chapter’s central claim is that conceptions of democratic citizenship are fundamentally affected by the movement of people across political boundaries. Particular attention is given to the rights of noncitizens and how their increasingly important presence in liberal democracies has called into question the self-acclaimed universalistic reach of fundamental liberal rights. Carens’s argument is far-reaching in its implications: focusing on how the legal systems of both Europe and North America respond to this liberal paradox, he claims that only a fundamental decoupling of basic individual rights from the nation-state will allow liberal democracies to live up to their universalistic promise. Donald Galloway continues this discussion by shifting the focus from the recognition of noncitizens and the legal battles related to this issue to the recognition of these people’s basic rights. He sheds light on the remarkable disparity between the scholarly debate on “postnational” forms of citizenship and the fact that the courts only very rarely accept claims by noncitizens. Examining some key cases from a variety of countries, Galloway presents his skepticism about the courtroom’s potential and willingness to recognize and expand the rights of noncitizens via human rights and the rule of law. He demonstrates how domestic laws and international instruments repeatedly justify the prevalence of borders and the eminence of the nation-state with respect to issues concerning immigrants and refugees (using the doctrine of justiciability to defeat noncitizens’ claims). This reality in the courtroom indicates for Galloway a broader political deficiency and an institutional void in addressing the legitimate claims of noncitizens. Also a legal scholar, Jeremy Webber looks at the international legal framework from a different perspective. With a view to Australian immigration policy and its response to illegal immigration, he demonstrates how rigorously the Australian state has defended its sovereign right to act in this field. Webber uses the legal philosophy of Carl Schmitt, regarding how nationstates tend to fend off any legal or moral constraints. He shows how the Australian government under Prime Minister Howard successfully claimed unrestricted executive authority to deal with the asylum crisis and made decisions intended to protect the country’s borders against unwanted migrants. In the Australian case, the courts strengthened the (unchallenged) role of the executive in protecting national sovereignty and establishing meticulous

Introduction 9

measures for excluding noncitizens. International human rights concerns were essentially impotent in comparison with the decision-making power of the state. Oliver Schmidtke is similarly concerned with the status of national sovereignty and identity as the mode of establishing membership and as a mode of exclusion. Challenging common assumptions about the changing character of borders in an increasingly international world, Chapter 4 provides an empirically grounded account of the continuing relevance of borders in demarcating national political communities. By analyzing current political debates and media discourse on questions of citizenship and integration, Schmidtke develops a theoretical argument about the salience of national boundary markers in European societies. The chapter sheds light on the phenomenon that, as a seemingly paradoxical result of the decline of the nationstate, national identities play an increasingly important role in providing the ideational base for inclusion and exclusion. In public discourse, borders are normatively questioned as instruments of social closure; simultaneously, however, there is a strong tendency to attribute to them a quasiontological status as guardians of the security, identity, and social integration of the political community. In the second part of the book, Anita Böcker and Dietrich Thränhardt address one of the policy responses to immigration, namely, the issue of dual citizenship. In most countries, there has been a trend toward greater acceptance of multiple citizenship and more naturalizations of immigrants. This chapter analyzes and compares developments in Germany and the Netherlands. Though the far-reaching tolerance of multiple citizenships in the late 1990s resulted in high naturalization rates, there were large differences between immigrant groups. Similar differences between naturalization rates of various immigrant groups are found in Germany. Multiple citizenships carry little importance for EU citizens (who feel no need to naturalize) and for refugees (who have no desire to retain the citizenship of their country of origin). Germany has been one of those countries that witnessed a controversial debate on this issue. Thomas Faist responds to a puzzle that he identifies within the contemporary citizenship debates and policies in this country: why has there been a liberalization of birthright acquisition of citizenship (ius soli), and of rules of as-of-right naturalization, but not of dual citizenship? The author approaches the question from a theoretical perspective, analyzing the “tradition of nationhood” view and the different versions of republicanism (communitarian and liberal equal rights). While he considers the reasons behind the delay of reforms and the absence of ethnonationalists in these debates, the author identifies competing positions in party politics as

10 Oliver Schmidtke

central. As a tool to enhance our understanding of the larger issues of naturalization and political inclusion, citizenship—as both concept and practice—remains limited. Imke Kruse’s chapter continues this discussion on the status and meaning of citizenship reforms by analyzing policy debates in Germany from 2000 to 2004, which led to the development of the new German immigration policy. Kruse argues that the final resolution is a compromise that is far less open than what some policy makers aimed to create at the incipient stages of the policy process. This outcome is due to the tension between the need to ensure security in Germany while at the same time promoting the country’s competitiveness in the global economy by introducing qualified labor through immigration. The author highlights various contentious issues that shaped the debate, such as the requirements for temporary and permanent residence, family reunification, and asylum. The focal point of the chapter is integration-related points of stress such as the headscarf ban, the cost-effectiveness debate, and the integration of the Muslim population. She concludes that Germany’s immigration policy is determined more by concern about security than by concern about economic interests. Challenging the findings of the popular thesis of the mergence of a genuine European political space, Riva Kastoryano argues that the EU—as it constitutes a transnational space—has created a transnational community. From a more theoretical perspective, Kastoryano suggests that in the postMaastricht era, the debates are “denationalized” and “deterritorialized.” Retaining a sociological focus and drawing on contemporary examples from a variety of European states, the author considers the emergence of transnationalism as a social and political phenomenon and, in light of increasing cross-border mobility and interaction, how transnationalism transforms loyalty and citizenship in and beyond nation-states. In the concluding part of the book, Andrew Geddes sheds light on the emerging European politics of migration. He argues that the meaning of state authority in regulating migration has changed while state sovereignty still provides the central principle to governing the territory and modes of social closure. Primarily due to the EU’s recent aspirations in the field, there are new forms of territorial management and population control. In this context the interests of individual nation-states are still the driving force. Yet, the EU has added an important layer of governance and administrative authority with important implications for the status and rights of migrants in Europe. Geddes argues that, in order to understand this new regulatory regime, it is important to understand the interplay between national political arenas and the increasingly momentous external dimension of EU action.

Introduction 11

Ruud Koopmans and his colleagues consider the unresolved debate on the extent to which the nation-state remains central or peripheral to the politics of migration and ethnic relations, contributing to the discussion on transnational and postnational dimensions of political claims making. They present empirical evidence through an examination of public debates on immigration and ethnic relations politics in five European countries (the UK, Germany, the Netherlands, France, and Switzerland) for the period from 1990 to 1999. This article argues that while claims making beyond national borders is an important phenomenon in the politics of immigration, the nation-state still provides the dominant frame of reference for framing issues and mobilization in politics. The authors’ empirical findings indicate that the subject of immigrants’ rights remains one channeled largely through national modes of deliberation and organizational representation. Taking on a very similar research question, Saime Ozcurumez examines the participation of nonstate actors in the EU immigration policy process in order to contribute to the debate on the extent to which the EU has redefined the boundaries of participation beyond the nation-state. Using extensive interviews with Turkish immigrant associations in France and Germany, Ozcurumez analyzes the use of new channels introduced into the immigration policy process by three main EU institutions (the European Commission, the European Parliament, and the European Court of Justice). Despite the expectations in the scholarly literature and the official efforts to invite immigrant participation, the author concludes that the scope and level of immigrant engagement at the EU level remains limited. The contributions of this book bring forth a puzzling and at times contradictory image of how migration and citizenship are regulated in liberal democracies. On the one hand, there is clear evidence of developments aimed at promoting easier access to citizenship status and designed to address the normatively doubtful categorical divide between citizens and noncitizens. The European Union is a striking, albeit contradictory, example for this development, as it has started to lay the foundation for a postnational form of citizenship while fortifying the borders with nonmember states. Although the nation-state is not seriously challenged in its prerogative to establish rules of membership, there are legal and political initiatives to liberalize and diversify access to the rights attached to citizenship status. Institutional responses to previously unknown degrees of mobility across borders are still rudimentary, but the (economic as well as moral) need for action seems to have been placed on the political agenda. Yet we also witness at times aggressive forms of national closure. Such forms of legal, political, and social exclusion of migrants is still very much feasible—and politically desired. In blatant

12 Oliver Schmidtke

contrast to the universalistic self-understanding of liberal democracies, migrants are still largely deprived of any meaningful legal protection as noncitizens. Social reality is likely to accentuate this fundamental contradiction even further. Notes 1. Castles, S., and M. Miller. 2003. The Age of Migration: International Population Movements in the Modern World, 3rd ed. New York: Guilford. 2. Cited in van Dijk, H. 1999. State Borders in Geography and History. In Nationalising and Denationalising European Border Regions, 1800–2000: Views from Geography and History, ed. H. Knippenberg and J. Markusse, 21–39. Dordrecht, Netherlands: Kluwer Academic. 3. Castles and Miller show that, in the United States, no official records of immigrants were kept until the 1820s and immigration was not regulated until the 1880s (Castles and Miller 2003). See also Torpey’s study (1998) on the introduction of the passport in historic perspective. 4. See, Habermas, J. 1994. Citizenship and National Identity. In The Condition of Citizenship, ed. B. van Steenbergen, 20–35. London: Sage; Walters, W. 2004. Mapping Schengenland: Denaturalizing the Border. Society & Space 20 (5): 561–80. 5. See, Beck, U. 2003. Toward a New Critical Theory with a Cosmopolitan Intent. In Constellations 10 (4): 453–68; Wimmer, A., and N. Glick Schiller. 2002. Methodological Nationalism and Beyond: Nation-State Building, Migration, and the Social Sciences. Global Networks 2:301–34. 6. Chernilo, D. 2006. Social Theory’s Methodological Nationalism. Myth and Reality. European Journal of Social Theory 9 (1): 5–22. 7. Brubaker, W. R. 1992. Citizenship and Nationhood in France and Germany. Cambridge, MA: Harvard University Press. 8. Arendt, H. 1970. Men in Dark Times. San Diego: Harvest Books. 9. See, Bommes, M., and A. Geddes, eds. 2000. Immigration and Welfare: Challenging the Borders of the Welfare State. London: Routledge; Banting, K. and W. Kymlicka, eds. 2006. Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies. Oxford: Oxford University Press. 10. Beck, U., and N. Sznaider. 2006. A literature on cosmopolitanism: An overview. The British Journal of Sociology 57 (1): 153–64. 11. See, Bader, V. M. 1997. The cultural conditions of trans-national citizenship. On the interpenetration of political and ethnic cultures. Political Theory 25:771–813; Faist, T. 2004. Towards a Political Sociology of Transnationalization. The State of the Art in Migration Research. European Journal of Sociology 45:331–66; Pries, L. 2005. Configurations of geographic and societal spaces: A sociological proposal between “methodological nationalism” and the “spaces of flows.” In Global Networks 5 (2): 167–190; Kivisto, P. 2001. Theorizing transnational immigration: A critical review of current efforts. Ethnic and Racial Studies 24 (4): 549–77.

Introduction 13 12. Axford, B. 2002. Enacting Globalization. Transnational Networks and the Deterritorialization of Social Relationships in the Global System. In Borderlines in a Globalized World, ed. G. Preyer and M. Bös, 99–124. Dordrecht, Netherlands: Kluwer Academic. 13. See, Bauböck, R. 1994. Transnational Citizenship. Membership and Rights in International Migration. Cheltenham, UK: Edward Elgar; Joppke, C. 1999. How immigration is changing citizenship: A comparative view. Ethnic and Racial Studies 22 (July): 629–52. 14. See, Marshall, T. H. 1963. Class, Citizenship, and Social Development. New York: Anchor Books; Blumer, M., and A. M. Rees. 1996. Citizenship Today. The Contemporary Relevance of T. H. Marshall. London: University College London Press. 15. See, Kymlicka, W. 1995. Multicultural Citizenship. A Liberal Theory of Minority Rights. New York: Oxford University Press; Kymlicka, W., and W. Norman. 1995. Return of citizen: A survey of recent work on citizenship theory. In Theorizing Citizenship, ed. R. Beiner, 283–322. Albany: State University of New York Press. 16. Favell, A. 1997. Philosophies of Integration. Immigration and the Idea of Citizenship in France and Britain. Houndmills, UK: Macmillan. 17. See, Hollifield, J. 1992. Immigrants, Markets, and States: The Political Economy of Postwar Europe. Cambridge, MA: Harvard University Press; Joppke, C., ed. 1998. Challenge to the Nation-State: Immigration in Western Europe and the United States. Oxford: Oxford University Press; Joppke, C. 1999. How immigration is changing citizenship: A comparative view. Ethnic and Racial Studies 22 (July): 629–52; Sassen, S. 1996. Losing Control? Sovereignty in an Age of Globalization. New York: Columbia University Press. 18. Cornelius, Tsuda, Martin, and Hollifield, 2004; Hollifield 2000; Joppke 1998, 2000. 19. Bauböck 1994; Gustafson 2005; Faist 2001; Kymlicka 1995; Soysal 1994. 20. See, Geddes, A. 1999. Immigration and European Integration: Towards Fortress Europe? Manchester: Manchester University Press; Geddes, A. 2003. The Politics of Migration and Immigration in Europe. London: Sage; Guiraudon, V. 2000. Policy Change behind Gilded Doors: Explaining the Evolution of Aliens’ Rights in Contemporary Western Europe, 1874–1994. Ann Arbor: University of Michigan Press; Lavenex, S., and E. Uçarer, eds. 2001. Migration and the Externalities of European Integration. Lanham, MD: Lexington Books. 21. Benhabib, S. 2004. The Rights of Others: Aliens, Residents, and Citizens. Cambridge: Cambridge University Press; Benhabib, S., ed. 2006. Another Cosmopolitanism. Oxford: Oxford University Press. 22. Benhabib, S. 1999. Citizens, residents, and aliens in a changing world: Political membership in the global era. Social Research 66 (3): 443. 23. Soysal, Y. N. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe. Chicago: University of Chicago Press.

14 Oliver Schmidtke 24. See, Eder, K., and B. Giesen, eds. 2000. European Citizenship: National Legacies and Transnational Projects. Oxford: Oxford University Press; Schmitter, P. 2001. The scope of citizenship in a democratized European Union: From economic to political to social and cultural? In European Citizenship: National Legacies and Transnational Projects, ed. K. Eder and B. Giesen, 86–121. Oxford: Oxford University Press.

PART I

The Normative Debate on the “Liberal Paradox”: Of States, Rights, and Social Closure

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CHAPTER 1

Immigration, Democracy, and Citizenship Joseph H. Carens 1

Introduction

I

n this chapter I want to explore some of the ways in which our thinking about democratic citizenship ought to be affected by the movement of people across political boundaries. My goal is to create some borders of my own. I want to map out the limits that morality sets to acceptable conceptions of democracy and citizenship when it comes to the treatment of people who have crossed political boundaries to live in a state in which they are not citizens. Justice prohibits certain kinds of policies toward immigrants and requires others, at least in any state that claims to be a democracy. Within the borders set by these prohibitions and requirements lies a range of morally permissible policies whose merits will depend on context and on the democratic will of particular communities. I will focus on these prohibitions and constraints, but I will also try to say something in general terms about the content of this range of morally permissible alternatives. In broad terms, I will defend the following two claims: First, although democracy presupposes a demos, membership in the demos is not something that the demos itself is morally free to grant or withhold as it chooses on the basis of its own inclinations or even of its own interests. Children of immigrants, whether born in the state to which their parents moved or only raised there for much of their youth, have a moral claim to citizenship as a matter of right. The nationality laws of every democratic state ought to recognize that right without imposing any more restrictions or requirements on these children than it imposes on the children of those who are already citizens (presumably, none at all). Furthermore, the immigrants themselves (i.e., those

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who arrive as adults) also acquire a moral claim to citizenship as time passes. After an initial residence of some years, they ought to be admitted to citizenship with at most the satisfaction of a few modest requirements regarding language and knowledge of the country’s history and institutions. As more years pass, even these modest requirements should be dropped. At no time should they be required to renounce previous citizenships to acquire a new one. Second, regardless of how much a polity seeks to promote a particular vision of citizenship (e.g., a republican conception or a deliberative one), a modern democracy is severely constrained (from a moral perspective) in distinguishing between citizens and noncitizens in the allocation of legal rights. For the question of who should have what rights, the ideal of equal citizenship cannot provide an adequate normative framework. Some legal rights ought to be enjoyed by everyone physically present within the boundaries of the state, and most others ought to be enjoyed by anyone who lives there for an extended period. Length of residence, not legal status, is the key moral variable. The longer the stay, the stronger the moral claim to most legal rights. In the end, relatively few legal rights may justifiably be attached exclusively to citizenship. These claims—especially the ones about the allocation of citizenship— may sound radical in comparison with conventional views of state sovereignty and democratic self-determination. They are, in some respects, a significant departure from current practice. Nevertheless, I will argue that they are logically entailed by principles already widely acknowledged and practices already widely adopted in democratic states. Preliminaries It is often suggested that, when it comes to immigration, Europe and North America are fundamentally different because North American countries have seen themselves as countries of immigration since the arrival of European settlers a few centuries ago, while European states have populations with much deeper historical roots and, for the most part, little experience of permanent immigration until recently. Whatever the merits of this suggestion for explanatory and other purposes, it is dead wrong when it comes to the issues I am addressing. What fundamental justice requires, prohibits, and permits with regard to immigrants and citizenship in a democracy does not vary between Europe and North America. (Indeed, it applies more widely still, but I leave that issue for another occasion.) In a related vein, it is also often suggested that immigration raises a distinctive liberal paradox because of the tension it produces between the ideal of universal human rights and the ideal of democratic self-determination. I

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think this suggestion is not dead wrong but rather deeply misguided—for two reasons. First, there is a general tension, which Richard Wollheim called the democratic paradox, between the notion that normative legitimacy must be derived from the democratic will of the people and the notion that there are independent standards of morality that must be used to judge what the people decide to do. This is a tension that does often arise with regard to immigration, but it also arises in every other area of democratic policy and practice as well. I know of no one who wants to embrace only one side of the tension, nor do I see why the problems it poses for determining what is right with regard to immigration are any different from the problems it poses for other issues. Second, many of the moral claims put forward by immigrants are advanced not as universal human rights claims—if we mean by that, rights that any human being should enjoy once within the jurisdiction of a particular state—but rather as moral claims that derive from the immigrant’s particular ties to the community she has entered. They are claims of membership made by people who are already present, not claims to be admitted to the territory in the first place. (Even some of the latter, such as the demand for family reunification, are premised upon particular ties, not upon one’s status as a human being with no tie to the community in question.) I do not deny—and indeed, have argued elsewhere—that (potential) migrants can make demands in the name of their humanity and without any prior ties, and these demands do generate a kind of liberal paradox.2 However, these are not the sorts of demands that have actually had the greatest impact upon citizenship in democratic states. What is most at issue in contemporary debates over immigration and citizenship is the legitimate scope of the community’s power of self-definition vis-à-vis people who claim to belong to the community in virtue of some particular feature of their life, not just in virtue of their humanity. Finally, a caution. It is always tempting to think that one’s own intellectual project is the key to everything. It is not sensible, however, to think of immigration as the key to citizenship or democratic theory. Despite the impressive statistics that can be cited about the number of migrants in the world and how that has increased in recent years, the vast majority of people in almost every state are neither immigrants themselves nor the descendants of immigrants. Most people live in the state in which they were born and raised and are the descendants of citizens who were also born and raised there. There is undoubtedly a great deal that can be said about democracy and citizenship without mentioning immigration at all. It would certainly be a mistake to take the migrant experience as a norm. But if immigration is a marginal phenomenon in some ways, it can be illuminating precisely because of its marginality. Thinking about immigrants requires us to be more careful about

20 Joseph H. Carens

generalizations and to clarify the relationships among the principles used to explicate and justify democracy. The Right to Citizenship How should immigration constrain and transform the way we think about citizenship? How has citizenship actually been constrained and transformed in practice? As I work my way through my answers to these questions, I will start first with a normative analysis and then comment upon how closely the reality corresponds to this normative ideal. I will try to draw attention to those features of the normative analysis that I think are uncontested and will only develop a positive argument for features of the analysis that I think are actually in dispute. At first glance, suggesting that someone might have a moral right to citizenship will strike some people as fundamentally incompatible with the whole notion of democratic self-determination. In fact, however, moral constraints on the allocation of citizenship are a central element of our understanding of what democracy means in the modern world. These moral constraints are by no means limited to the rights of migrants. There are other, even more important moral limits on the allocation of citizenship. But the constraints imposed by migration help to bring the other, taken-for-granted constraints into view. To understand how a contemporary democratic view of citizenship is morally constrained, it is helpful to contrast it with democratic citizenship in ancient Greece. In his seminal discussion on citizenship in The Politics, Aristotle says the question of who ought to be a citizen can only be answered by looking at the nature of the regime and at the circumstances in which it finds itself.3 It is a familiar point that Aristotle says that some of those who would be citizens in a democracy will not be citizens in an oligarchy. It is less often noticed that Aristotle indicates that the hereditary requirements for citizenship should be expanded or contracted in accord with the needs—primarily, the military need—of the particular polis. If there are sufficient citizens, Aristotle suggests it is probably best to restrict citizenship to those whose parents and grandparents were citizens. (Note that, for these purposes, Aristotle includes women in the ranks of citizens, even though they are excluded from the forms of political participation that he elsewhere describes as the essence of citizenship.) Aristotle does not say clearly why he thinks this restriction of citizenship is desirable. Perhaps it is an assumption that the deeper the citizen heritage, the stronger the loyalty and commitment to the city, although ancient Greece is full of examples of people like Alcibiades and Thucydides who wind up fighting for the enemies of the city in which they

Immigration, Democracy, and Citizenship 21

are citizens. Perhaps it is just that a smaller number of citizens are better, so long as there are enough, and stricter rules keep the numbers down. If the city needs to expand the ranks of its citizens, it may relax these requirements, granting hereditary citizenship to those with a noncitizen grandparent or even with a noncitizen parent. Later it can tighten the requirements again. The key point is that Aristotle thinks the allocation of citizenship is something that lies entirely within the discretion of the polis and may be expanded or contracted as the rulers of the polis deem best, even when this affects descendants of current citizens. No one has a right to citizenship in this scheme, and if the result is that some people have no citizenship at all (as can easily happen), that may be a personal misfortune but it is not an injustice. Could a democratic state today restrict citizenship in the way that Aristotle proposes? Given the principle of state sovereignty, there is no real mechanism by which this could be prevented, but would those outside the state in question sit idly by, treating this as a matter of internal discretion? There is a long tradition in political theory that insists that liberty is not license and that autonomy is not to be equated with the arbitrary will. Today it seems a settled matter that these sorts of principles apply just as much to democratic communities exercising their powers of self-governance as to individuals seeking to govern their own lives. Even if a state has the power to act in this way, it does not have the moral freedom to do so. To be sure, modern states have excluded people from citizenship in the name of certain visions of the political community. In the nineteenth century, the question whether Jews could be citizens was debated throughout Europe and often answered in the negative. In North America, people of African and Asian descent and indigenous people were excluded from citizenship altogether or denied access to citizenship on the same terms as others. And up until the last few decades, most states did not give women the same right as men to pass on their citizenship to their children and often deprived them of their original citizenship when they married, sometimes without regard for whether they had acquired their husband’s citizenship or not. But would anyone publicly defend these practices today? Would anyone claim that such policies would be morally permissible so long as they resulted from a government duly elected by a democratic majority? I treat these as rhetorical questions. I know of no one who actually defends this extreme form of democratic legal positivism. As John Rawls famously argued, we have collectively reached a considered moral judgment about religious and racial discrimination, and any policy or practice that clearly contravened this considered moral judgment would deserve severe moral criticism, even if it were supported by a democratic majority within the state.4

22 Joseph H. Carens

I do not mean to suggest that the moral claims that immigrants and their descendants have to citizenship are as firmly and widely established as the moral right not to be subject to discrimination on the basis of race, religion, and gender. The point rather is simply to establish that states are not morally free to adopt whatever citizenship policy a democratic majority approves without regard for those affected and excluded by the policy. Democratic legitimacy is not enough to make a policy morally legitimate. To meet that requirement, it is necessary to show that if falls within the range of the morally permissible. Why is the exclusion of migrants and their children from citizenship outside the range of the morally permissible? Because there is ultimately no way to reconcile such exclusion with the principle of democratic legitimacy itself, which requires the consent of the governed (in ways that ancient democratic legitimacy did not) and which ties this consent in various ways (such as voting and elections) to the moral agency of the individual human beings who live in the society. To exclude people from citizenship is to fail to treat them as free moral agents with a right to participate in the collective determination of the laws to which they are subject. This is clearest in the case of the children and grandchildren of the immigrants, because it is not possible to pretend that their presence in the society is the product of a choice in which they gave up the right to participate in exchange for other opportunities. Here it is helpful to consider the developments in German citizenship law, not just the specifics but also the background debate. For some time now, most Germans on all sides of the political spectrum have acknowledged that it was necessary for Germany’s democratic legitimacy to include the descendants of immigrants in the citizenry.5 It is simply not possible to justify, on democratic terms, the exclusion of an identifiable segment of the population from political participation for generation after generation. (Of course, people often find it possible to ignore or put up with this sort of contradiction in their principles for decades or even generations—think of racial segregation in the United States—so there is still a need to tell the specific story of why living with this contradiction proved impossible in Germany. The answer cannot be, in any simple sense, just that it was morally wrong.) In a modern democracy, unlike an ancient one, political legitimacy rests upon the inclusion of the entire settled population. Democracy requires the consent of the governed—not those who are subject to its laws for a few days while passing though, but rather those who are subject to its laws on an ongoing basis throughout their lives. When migrants first arrive, it is possible to pretend that they are only passing through, in part because many of them do go back. But no one can pretend to themselves that the grandchildren of

Immigration, Democracy, and Citizenship 23

migrants—people who have spent their entire lives in a society and are the children of people who have spent their entire lives in the society—are just passing through. So, in the first instance it becomes clear that the third generation has to be included in the citizenry. And once one recognizes the need to include the third generation, it becomes clear that they have to be considered citizens from birth, just like the children of citizens, so that they can be socialized into democratic norms and practices as they grow up. The society where they live is responsible for their social formation. As soon as one recognizes this sort of principle, however, it has to be clear that it applies just as much to the second generation—those born and raised in the society or at least raised there. By the time they are adults, it is not possible to pretend that they are just passing through, and so they, too, deserve to be included in the citizenry from the outset. There simply is no conception of democracy available today that can justify the exclusion from democratic participation of people who have spent their entire lives in a society. The mere possibility that they might leave is insufficient because this is also true of the children of current citizens. The one qualification here, of course, concerns dual citizenship. The fact that the children of immigrants inherit another citizenship supplies a pretext, for some, for denying them citizenship where they live. But this works only for a while, because it is clear that the strongest moral claim to citizenship is the claim to be treated as a full member of the political community in the society in which one lives. Moreover, with the elimination of gender-biased rules governing the transmission of citizenship, more and more people within the existing community acquire dual citizenship at birth because their parents have different citizenships that get passed on. This has two effects. First, as dual citizenship has become a more common phenomenon, most of the practical concerns about it have become less and less plausible. Second, the justification for denying dual citizenship to migrants and their descendants becomes much less plausible when it is permitted to others not identified as migrants. If we see that democratic principles make it morally necessary to provide for the automatic acquisition of citizenship at birth or in young adulthood by the children of immigrants, then it becomes harder to justify imposing high and discretionary hurdles for naturalization. The same principle—that society has an obligation to respect the moral and political agency of those who live there—means that migrants should be included in the political process once it becomes clear that they are not just passing through and once they have had a chance to become familiar with the institutions and practices of the society to which they have moved.

24 Joseph H. Carens

What does this mean in practice? That access to citizenship should be seen as a right that migrants have, once they pass certain thresholds, not something granted on a discretionary basis by the state. What sorts of requirements may legitimately be imposed as conditions of naturalization? In the first instance, the normal freedoms of a democratic society—the right to freedom of religion and of conscience, the right to freedom of speech and association, the right to privacy, and the general right to live one’s life as one chooses so long as one does not violate the laws—set severe limits to what may be demanded as conditions of naturalization. The main thing it is reasonable to expect is the passage of enough time to become acclimated. Three to five years seems a reasonable length. The most common and most plausible requirement is a modest knowledge of the language of public life, though I would argue that after enough time has passed (ten years at most), even this should be waived because if a person has been able to live and function in the society for ten years, he or she will be able to get enough information to participate in the democratic process. Many states impose a requirement that the person not have a criminal record. This is a reasonable concern, but if the criminal record is not significant enough to warrant deportation, it should not warrant permanent exclusion from the democratic process either. Some states have a good character requirement in addition to the absence of a criminal record, and this is an invitation to discretionary abuse. Some states require proof of a certain level of income or the absence of reliance upon social assistance, but this seems to me a form of discrimination against the poor. If a person is entitled to some form of social assistance, she should not then be penalized politically for taking advantage of it. Some states require renunciation of previous citizenships, and the arguments in favor of acceptance of dual citizenship outlined in the previous section apply here as well, if perhaps not quite as strongly. The main point is that migrants often have very good reasons for wanting to maintain their original citizenship, and this often implies nothing about their attachment or lack of attachment to the state to which they have moved. Nothing would do more to foster the political integration of immigrants than the elimination of prohibitions on dual citizenship, something that is particularly important in the European Union (EU) here other important rights are often attached to possession of an EU citizenship. A few states require that those seeking citizenship pass a test demonstrating their knowledge of the history or the institutions of the new country. If the pass level for these tests is set too high, it becomes a barrier to integration, and if set appropriately low, it is possible to pass without knowing very much. The test itself, then, is rarely of much use, although studying for it can be a valuable socialisation experience for some. The key is to construct

Immigration, Democracy, and Citizenship 25

enough alternatives that it does not become a barrier. Something similar might be said about the naturalization ceremony. If this involves some sort of welcome by the state and affirmation of commitment, respect for the constitution, and so on by the new citizen, it can be a valuable opportunity to build identification with the political community. If it requires some sort of loyalty oath that entails a renunciation of prior commitments, it may well be counterproductive and is, in any event, an unreasonable demand. The Legal Rights of Noncitizens Citizenship means full membership in the political community, and on any modern conception of democracy at least, this citizenship must be equal. In other words, and leaving aside various complications, all citizens must enjoy equal rights. But not everyone who is in society becomes a citizen, at least not right away. What about them? Are they entitled to all the same rights as citizens? To some of the same rights? To some rights but in a different form? To any rights? If we turn our minds to questions about the legal status of people who are physically present on the territory of a state in which they are not citizens, we cannot embrace the idea that citizenship is a necessary presupposition of all other effective legal rights, “the right to have rights” as some say, quoting Hannah Arendt out of context.6 The bundle of legal rights that citizens possess has to be disaggregated. People who are not citizens deserve to have—and often actually enjoy—some of the rights that citizens possess. In the case of legal residents, they deserve to have (and generally enjoy) most of these rights. Even if people are just present as tourists or short-term visitors, they are morally entitled to some legal rights like security of the person and security of property. If they happen to be accused of some crime, they are entitled to a fair trial, with the standards of what constitutes a fair trial being the same for them as for citizens. The standards of what constitutes a fair trial may legitimately vary from one state to another to some degree. (This is an example of the fact that there is a range of morally permissible policies within democratic societies.) But it would not be morally permissible to use one set of standards for citizens and a different one for noncitizens. For example, if hearsay evidence cannot be used in a criminal case against citizens, it cannot be used in a criminal case against noncitizens. I take these claims to be almost entirely noncontroversial. They flow from any conventional understanding of the rule of law. So, all noncitizens who are present in a state are morally entitled to at least some of the same legal rights as citizens. Moreover, their moral entitlement to these rights does not flow from the fact that they have citizenship

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in some other state. It flows from our understanding of the legitimate and illegitimate uses of state power and our conceptions of the rule of law. The kinds of rights I am considering here are universal rights, universal not in the sense that they have an identical content in every state, but rather universal in the sense that they are supposed to be enjoyed identically by every human being physically present in a given state, regardless of her citizenship status. These rights are all human rights, but not every human right is a universal right in this sense, as we shall soon see. (Similarly, they are all civil rights, but not every civil right is a universal right in this sense.) How do things work in practice? The first point to note is that whether noncitizens actually possess the universal legal rights that they are supposed to enjoy and how effective these rights are is much more a function of the way the legal system works in the state in which the noncitizen is located than it is of the fact that he or she has citizenship in some other country. Simply as an empirical matter, the suggestion that citizenship (somewhere) is what makes it possible for people to enjoy effective legal rights in another country is clearly wrong. The legal rights that someone from, say, Ghana or Sri Lanka enjoys in France or the United States have little or nothing to do with their citizenship status in their country of origin and everything to do with the norms and practices of the legal system in the country in which they find themselves. I emphasize this point because some people see citizenship and legal rights as inextricably intertwined. This is simply wrong conceptually, normatively, and empirically. At the formal level, the legal systems of Europe and North America all establish a large number of important legal rights that they say are to be enjoyed by persons regardless of citizenship status. This formal commitment matters, even if it does not settle everything, because it recognizes the principle that there are universal legal rights in the sense specified earlier. In practice, of course, noncitizens are vulnerable to state authorities in way that citizens are not, because their right to be present is much less secure and this affects their ability to enjoy the formal legal rights to which they are entitled. This is clearest in the case of noncitizens who are present without the authorization of the state. They fear (with good reason) that any involvement with state authorities may lead to their being deported. So, for example, if they are the victims of a crime, they are unlikely to report it. Even those present with authorization may find that their effective enjoyment of their formal legal rights is reduced because of their noncitizenship status, which renders them vulnerable to investigation regarding their compliance with immigration law. Authorities are sometimes able to take actions (e.g., extended detention, questioning without lawyers) against people under

Immigration, Democracy, and Citizenship 27

the cover of enforcing immigration law that would be prohibited in normal legal contexts. (A particularly vivid illustration of the phenomenon was the roundup and extended detention of young Arab and Muslim males in the United States in the aftermath of September 11, 2001, and the subsequent deportation of many of them for technical violations of immigration laws that would normally have been overlooked. But for any noncitizens who become entangled with legal authorities, the threat of deportation looms in the background and affects their capacity to enjoy and exercise their rights.) On the other hand, this should not be overstated. The rights of noncitizens are not always secure, but that is true of the rights of citizens as well. Are all noncitizens who are present morally entitled to all of the rights that citizens enjoy? The answer to this obviously depends primarily on whether one thinks states are entitled to control admissions in the first place, and if so, whether they are entitled to admit some people under restrictive conditions, with limits on their activities. I want here just to assume the conventional moral view that states are entitled to restrict and regulate entry, at least in some ways. So, let us assume that states are entitled to admit people as tourists and visitors on the understanding that they will leave within a reasonably limited period and will not try to seek employment or gain access to the society’s social programs while they are present. If all states enjoyed roughly comparable political, social, and economic conditions, this would be a plausible moral claim, and many think it is plausible even under contemporary conditions. So, on this assumption, noncitizens admitted for these sorts of purposes are not morally entitled to all of the same rights as citizens.7 Again, this corresponds well with contemporary practice. All democratic states admit these sorts of visitors in vastly higher numbers than migrants who plan to stay. Let us take the other extreme: permanent residents, that is, people whom the state permits to reside on an ongoing basis. May the state distinguish their legal rights from the rights of citizens? If so, how and why? If not, why not? In my view, liberal democratic justice, properly understood, greatly constrains the distinctions that can be made between citizens and residents.8 The longer people stay in a society, the stronger their moral claims become, and after a while they pass a threshold that entitles them to virtually the same legal status as citizens. Once people have been settled for an extended period, say, five years or so, they are morally entitled to the same legal rights (and ought to be subject to the same legal obligations) as citizens, except perhaps for the right to vote and the right to hold high public office if access to citizenship is readily available as it should be. During the early stages of settlement it is permissible (though not required, and, in my view, often not desirable) to limit

28 Joseph H. Carens

some rights (e.g., to redistributive benefits or protection against deportation), but not most others. The heart of the argument for this position rests on an understanding of civil society and a related view of the relationship between the state and civil society. In brief, people who live in a society over an extended period of time become members of that society and moral claims to legal status follow from that membership. Thus the allocation of legal rights by the state should not be regarded as a morally unfettered political choice. The relationships established in civil society significantly limit and constrain the kinds of allocations of rights that a political society can properly make. The argument that I have been advancing should not be confused with the view that membership no longer matters because international human rights laws are more important in determining legal rights and duties than national legislation or because the process of globalization is rendering borders irrelevant. On the contrary, I think that membership does matter both empirically and morally. My claim is that residents are members. That is why they deserve basically the same package of rights. Someone may object that if naturalization is relatively easy and if people do not naturalize, it is their own choice and they forfeit their claim to such a strong legal position as residents. Is that not a sufficient justification for whatever legal distinctions we want to draw between citizens and noncitizen residents? No. People have many good reasons for choosing not to naturalize. For example, they may want to be able to return to their country of origin at a later date to care for aging parents. Inheritance laws in the country of origin may require heirs to be citizens. It is not fair to insist that they sacrifice such interests and concerns in order to receive equal treatment as members of civil society here, an equal treatment to which they are entitled by the fact of their membership in our civil society. People sometimes argue that increasing the legal differences between citizens and residents is a useful way of strengthening the incentives to naturalize. I think that is a mistake because it sends the wrong message about why people should naturalize. It encourages immigrants to take the attitude, what is in it for me? in thinking about whether or not to become citizens whereas we ought to encourage them to become citizens not primarily for narrow, instrumental reasons but rather out of a sense of identity and attachment and out of a desire to participate in a shared public life. Moreover, attaching special (nonpolitical) privileges to citizenship sends the wrong message about citizenship and the nature of our community not only to immigrants but also to citizens. It emphasizes divisions among people who live together, and it encourages citizens to think of lawfully resident noncitizens as “others,” not as fellow members of the community.

Immigration, Democracy, and Citizenship 29

In practice, there has been significant movement in the direction that I am advocating (though not because of my advocacy). In most liberal democratic states in Europe and North America, there has been a significant transformation of the legal status of permanent residents over the course of the last century. Once there were many significant legal distinctions between citizens and permanent residents. Now there are few. In the United States, the 1996 legislation that reduced the rights of permanent residents to some social welfare programs is only a minor retreat from this general trend of the last century and is likely to affect only a small proportion of the permanent resident population. In Europe, EU nationals enjoy an increasing number of rights that are not available to third country nationals who have permanent residence status, and that also marks a modest reversal of the dominant trend. Overall, many permanent residents spend their entire lives in states in Europe or North America without becoming legal citizens and without that fact affecting their lives in any significant way apart from their not being able to vote (which many citizens, especially in North America, choose not to do anyway) and their not being able to get an EU or North American passport.9 Some have characterized these developments as a devaluation of citizenship. This implicitly raises the question whether we should try to make citizenship more valuable by widening the legal gulf between citizens and residents, reserving more rights for citizens. Let me say why I think that we should celebrate this historical development and extend it rather than reverse it. I will look at the three key areas where significant legal differences between residents and citizens persist. Apart from voting and holding public office (both of which I think can properly be reserved for citizens, given easy naturalization), there are two main areas where citizens enjoy more rights than residents, public employment and security of residence, and a third, access to social programs, where some people think the differentiation should be much sharper. Let me take the last one first. Residents normally enjoy the same rights as citizens to social programs like public pension programs, workers’ compensation, and unemployment compensation that either tie individual benefits to the level of individual contributions or function as collective insurance schemes. That makes sense because it would hardly be fair to require people to contribute to such programs and then deny them the benefits. Residents also normally enjoy equal access to social programs funded through general taxpayer revenues and aimed at the general public. Access to public libraries or public recreational facilities or public universities sometimes is tied to residence, rarely to citizenship. And that makes sense, too, because noncitizen residents are taxpayers and members of the general public.

30 Joseph H. Carens

It is only with regard to redistributive social programs that people sometimes claim that the distinction between citizens and residents matters and ought to count for more. There has been a move lately (as in the U.S. 1996 legislation) to restrict the access of recent immigrants to various forms of social assistance. I think this is unwelcoming and unwise, but I would not say that it is unjust so long as it applies only to recent arrivals. One of my critical arguments claims that membership grows over time. That means that it is weaker at first, so it is not unjust to restrict access to redistributive social programs to those with claims to full membership. But long-term residents fit in this category on my account. They are entitled to be treated as full members. So, proposals to ban immigrants forever from social assistance programs would clearly be unjust. With regard to public employment, I have no objection to restricting jobs involving national security or major policy-making responsibilities to citizens, but the restriction of the entire national civil service to citizens is simply a way of discriminating against noncitizen residents. If one accepts the principle that noncitizen residents are normally entitled to be treated equally in the occupational sphere, the reasons why this is morally objectionable are obvious. In Europe, the opening up of public sector jobs within the EU to citizens of other EU countries has undermined many of the traditional justifications for restrictions (loyalty, acting as an agent of the state, etc.). The ongoing refusal of some EU states to open public employment to their own permanent residents is a form of blatant discrimination. It is morally without justification, even if it does not violate any EU laws. Finally, and perhaps most controversially, it seems to me deeply unjust to deport long-term residents, even if they have been convicted of crimes, because it is a violation of the human rights of the person being deported and because it is unfair to the country to which the person is deported. Let me elaborate briefly. We regard it as morally wrong for states to deport their own citizens, even if they can find another state willing to accept them, because we recognize that the right to remain in a society of which one is a member is a fundamental human right. As we have seen, long-term residents should be viewed as members of the society where they live. Therefore, they have the same moral right and should enjoy the same legal right not to be deported. This should be particularly clear when it is a question of people who have lived in a society since early childhood. I can cite dozens of stories about people who came to the United States or Canada as young children and spent all or almost all their lives there who were deported because they were convicted of some crime. Often they have no social ties in the country to which they are deported. Sometimes they do not even speak the language. Doubtless many will feel that these are criminals who deserve whatever they get (although it is

Immigration, Democracy, and Citizenship 31

very important for legal purposes for the authorities to insist that the deportation is not a punishment for the crime). The fact remains that we do not do this to our own citizen criminals and it would be a violation of widely accepted international human rights norms if we did. Of course, many may want to point out that international law and human rights norms do not prohibit the deportation of noncitizen criminals, and since it is clearly in our collective interest to do so, we should. There is something to this view. I think that if someone arrives in a country as an adult and commits a serious crime within six months or a year, it is entirely appropriate to deport him (or, rarely, her). But it is entirely different when it is a question of someone who has grown up and spent most of his life in the country. To take the hardest case for my position, let us assume that we are dealing with violent, repeat offenders (although many of those deported clearly do not fall into this category). Why is it fair to send such people to another country, a place where they have a legal membership but no real social connection? Are they any less likely to engage in criminal behavior there? Every society has people who are involved in criminal activity and who create social problems. Should the state where they grew up not take responsibility for its own problems rather than try to foist them off on someplace else? It is the state where they were raised, not the one of their nominal citizenship, that is responsible for their social formation, for successes and failures in the inculcation of social norms and values, for the creation of opportunities and obstacles in social life. It is not fair to other countries—often small and poor ones without the resources to contain criminal activity—to dump dangerous criminals in their midst. Sometimes people are not admitted on a permanent basis but rather for a limited time and subject to certain conditions: students, and various sorts of workers (seasonal workers, border commuters, guestworkers, visiting professionals, so on). For reasons of space, I will focus on temporary workers because they are the ones who most resemble immigrants and are most likely to seek to become immigrants, though students raise distinctive questions and problems. How may the rights of temporary workers differ from those of citizens and permanent residents? The first and most important difference in practice is, of course, the restricted duration of the right to remain. Temporary workers are entitled to stay only for a limited period, whereas citizens and permanent residents are able to stay indefinitely. Is it morally acceptable to admit workers for a limited period like this? This restriction is permissible provided that the workers are actually present only for a short time. It is not acceptable to keep people in a temporary status that is constantly renewed, so that they actually stay for a long time but

32 Joseph H. Carens

remain in a vulnerable and restricted situation. The general principle enunciated earlier still applies: the longer the stay, the stronger the claim to be regarded as a member of society and so entitled to the rights of membership. If someone comes to work in a place for a year or perhaps even two, she does not have particularly strong claims to remain. After five or six years, however, the case is very different from a moral perspective. This is so, even if people are admitted with explicit limitations on their rights to stay. This is surely the lesson to be drawn from the European experience with guest workers in the 1960s and 1970s. The guest workers had been told from the outset that they could not stay permanently and had agreed to come under those terms. If consent were all that mattered, it would have been morally acceptable to send them back when economic conditions changed and they were no longer needed. But the European states were unable to do this, because courts and publics concluded, in various ways, that the initial consent was not decisive. In the face of the obvious deep connections of these workers and their families to the places where they had moved, the original terms of admission had become irrelevant. As time passes, then, temporary residents are entitled to become permanent ones. With the right to stay come rights to be treated as a full member. In a similar vein, seasonal workers who come back year after year have stronger claims than ones who come only for a year or two. And the longer the season, the stronger the claim. It is not acceptable to pretend that permanent workers are only seasonal ones. The second important way in which the rights of temporary workers often differ in practice from those of citizens and residents is that temporary workers are usually much more restricted in the kinds of work they are permitted to do. They are usually limited to a particular kind of work, sometimes limited to particular geographic areas within the country, and sometimes even restricted to a single employer. In some cases this is a transitional status that then leads to permanent resident status and the fuller set of rights that goes with that. In other cases, the temporary arrangement is all that is offered. Apart from these restrictions, temporary workers normally enjoy (and should enjoy) the same rights as residents and citizens. The normal rules regarding occupational health and safety requirements and minimum wages should apply to them, because these are norms intended to ensure that the economic activity of civil society is conducted in a humane way. They are established as public policy constraints upon employment contracts (i.e., as legal limits to the things that workers can agree to). In this context, distinctions between citizens and noncitizens or between temporary residents and permanent ones should be irrelevant. There is also no plausible justification for restricting the

Immigration, Democracy, and Citizenship 33

civil rights of temporary workers (and, in Europe and North America, usually no overt effort to do so). These restrictions on the kind of work that temporary workers do and where they do it are closely connected to the underlying rationale for having temporary workers in the first place, i.e., the need for a certain kind of labor in certain areas. So, one could not eliminate the restrictions altogether without eliminating the basic idea of temporary admissions. Some might think that is what justice requires. It seems to me, however, that the restrictions may be permissible so long as they are not more restrictive than is necessary for the economic function. Perhaps the greatest danger is that the unique restrictions that temporary workers face render them much more vulnerable to mistreatment by their employers than ordinary workers, whatever the formal similarity of their legal rights. The risk is probably greatest when their permission to enter and work is limited to one particular employer rather than to a type of work, but even in the latter case their status renders them vulnerable. Finally, what legal rights should be possessed by those who reside and work without official authorization?10 For simplicity, I am going to assume that the state genuinely wants to prevent unauthorized immigration.11 At first blush, it may appear anomalous to speak of the rights of unauthorized immigrants. Since they are violating the law by settling in the receiving state without its permission, why should they be entitled to any legal rights that the state is obliged to protect? A moment’s reflection, however, makes us aware that unauthorized immigrants do have legal rights that ought to be respected. As I noted earlier, there is a wide range of legal rights that people possess simply by virtue of being within the jurisdiction of the state whether they have permission to be there or not. For example, people do not forfeit their right to be secure in their person and their possessions simply in virtue of being present without authorization. If they are accused of a crime themselves, they have the same rights as any other criminal defendant. If they are shot or struck by a car, they have a right to receive life-saving medical treatment. So far as I know, even the harshest critics of illegal immigration do not challenge these principles. There are other legal rights that unauthorized immigrants possess that are more controversial but still generally acknowledged. First, they should and do have a legal right to the pay that they earn, even though they are working without authorization. This is simply an extension of the principle that they have a right to be secure in their possessions. They can be deported, but (in principle) they cannot be robbed. Second, they are entitled to the same legal protections regarding wages and working conditions as other workers, because these protections (whose content varies from one state to another) are designed to establish minimum standards for economic activities. The fact

34 Joseph H. Carens

that the workers do not have authorization to work in the first place cannot relieve employers of the duty to meet these standards. Again, this principle is generally (though not universally) acknowledged in law, if not in practice. Third, children who are present without authorization are entitled to a free public education. In the United States, this principle was established by the famous Supreme Court decision of Plyler v. Doe. The same practice is followed in Canada and in most European states. This is particularly controversial because it requires a direct expenditure of public funds on behalf of people who are present without authorization and it creates an incentive for unauthorized immigrants to bring their families in to join them. The alternative, however, is to permit the children who come without authorization to grow up without an education, which is a disaster both for them and for the society in which they live. The biggest problem with the legal rights of the unauthorized is that they exist in name only because those present without authorization fear that any attempt to assert their formal rights will entangle them with the authorities and lead to their expulsion. So, the formal rights are largely ineffective. There is a partial solution to this problem, which is to build a firewall between immigration law enforcement on the one hand and the rest of the legal system on the other. In principle we ought to establish as a firm legal principle that no information gathered by nonimmigration officials can be used for immigration enforcement purposes. The objection to this is obvious. By increasing the security of the position of the unauthorized, one increases the incentives for others to come without authorization. Of all the proposals I have made in this chapter, this is perhaps the least realistic, the one most at odds with political realities and current trends. Nevertheless, it seems to me an essential step if we are to take seriously the rights that these people ought to enjoy. As the list of rights grows, one might ask whether there are any rights that authorized immigrants have to which the unauthorized immigrants are not entitled. The most obvious candidate is the right to stay. If one accepts the right of the state to control immigration—and I am simply assuming that as a presupposition in this chapter—then one must accept as a corollary the right of the state to deport people who are staying on without permission. But this right does not persist indefinitely. The general principle that I enunciated at the outset—the longer the stay, the stronger the claim—applies even in the case of those who have settled without authorization, and for the same reasons. When people settle in a country, they form connections and attachments that make them members of society over time. After a while, the conditions of admission become irrelevant.

Immigration, Democracy, and Citizenship 35

This recognition of the moral importance of the length of stay, even if unauthorized, is reflected in the practices of many states, both in the granting of general amnesties to unauthorized residents, which is almost always limited to those who have already been in the country for an extended period and in the common practice of allowing for exemptions from the normal rules of deportation on compassionate and humanitarian grounds, which in turn are almost always linked to long residence in the country. I do not mean to suggest that everyone accepts this, however. The law almost never recognizes an individual right of unauthorized residents to stay (except occasionally with respect to those who have been present as children). Moreover, many would object to amnesties (whether individual or collective) on the grounds that they reward lawbreaking and encourage more unauthorized immigration. Nevertheless, in my view, long-term settlement does carry moral weight and eventually even grounds a moral right to stay that ought to be recognized in law. Notes 1. A much shorter, somewhat different version of this article appeared as “On Belonging: What we owe people who stay,” Boston Review 30 (Summer 2005): 16–19. Versions of this article were presented to audiences at Rutgers University and the University of Chicago and at a conference at the University of Victoria. I am grateful for the reactions of the participants on these occasions. 2. See Carens, J. H. 1987. “Aliens and Citizens: The Case for Open Borders.” Review of Politics 49 (Spring): 251–73. 3. Aristotle. 1984. Politics. Trans. Carnes Lord. Chicago: University of Chicago Press, ch. 3. 4. Rawls. J. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. 5. For a sustained development of this line of argument, see Baubock, R. 1994. Transnational Citizenship: Membership and Rights in International Migration. Adershot, UK; and Ruth, R. 2000. Immigration as a Democratic Challenge. Cambridge: Cambridge University Press. 6. Arendt is talking about the vulnerability of stateless people during the interwar years. See Arendt, H. 1973. The Origins of Totalitarianism. New York: Harcourt. 7. It is a further question whether people who accept these restrictions have a moral right of entry, in other words, whether states have an obligation to admit peaceful visitors who are not seeking to establish residence, even on a temporary basis. This leads too far away from my focus in this chapter, but it is at least arguable that there is a duty to be open to this sort of movement of people. In practice, the major obstacle to such openness is the fear that the visitors are really coming for other purposes than the announced ones, particularly to seek work and establish a residence.

36 Joseph H. Carens 8. The following pages are adapted from Carens, J. H. 2002. “The Rights of Residents.” In Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe: The Reinvention of Citizenship, ed. R. Hanson and P. Weil, 100–18. Oxford: Berghahn Books. That article provides a fuller account of this argument. 9. Schuck, P. 1984. “The Transformation of Immigration Law,” Columbia Law Review 34 (1984): 1–90; and Soysal, Y. N. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe. Chicago: University of Chicago Press. 10. Sometimes these people enter legally and overstay a visa, sometimes they go underground after a failed refugee claim, sometimes they evade immigration controls from the moment of crossing the border, but these differences do not matter for our purposes. They are called “illegal aliens” by those who wish to emphasize that their activities are incompatible with the immigration laws and “undocumented workers” by those who want to stress their contributions to the economy. I use the term “unauthorized residents” in an effort not to prejudge the normative issues. 11. In some cases, unauthorized immigrants are covertly tolerated or even implicitly invited in by the state. This obviously undermines the argument that they are there without the consent of the political community and so not entitled to the same rights as those invited in. But one cannot simply infer from a failure to deter unauthorized immigration that the state is actually encouraging it. In some cases, a state’s effort to prevent unauthorized immigration and to expel those who are discovered may be hampered by other considerations like commitments to certain conceptions of civil liberties (e.g., the well-known U.S. aversion to a national identity card). Whether one shares this interpretation of civil liberties or not, one cannot treat these constraints on effective enforcement as proof that the state is not serious about preventing unauthorized immigration, unless one regards these civil liberties commitments as a spurious cover for the deliberate encouragement of an unauthorized immigration flow. That would certainly not be a reasonable inference with regard to the ways in which civil liberties hamper ordinary law enforcement.

CHAPTER 2

Noncitizens and Discrimination Redefining Human Rights in the Face of Complexity Donald Galloway

The Arrival of the Noncitizen

I

ncreased pressures, incentives, and opportunities have prompted dramatic and unprecedented surges in the number of people crossing national borders. Confronted with this stark phenomenon, political and social theorists have come to recognize the pressing need to provide a normative account of the political status, entitlements, and privileges of noncitizens who have entered or seek to enter the territorial jurisdiction of the liberal state. As interactions between citizens and noncitizens—some with legal status and some without—become a more familiar part of our social experience, questions naturally arise about the justifiability of the divisions that differentiate the political, social, and civil rights of the latter from those of citizens. It is no longer current orthodoxy in academic circles that a political society should be assumed to be “a complete and closed social system.”1 Noncitizens are no longer invisible or marginalized in works that focus on the more abstract and fundamental issues of politics. The academic literature on the situation of the noncitizen has expanded exponentially in the last twenty-one years with particular attention being paid to the most basic factor that distinguishes the citizen from the noncitizen, namely, the citizen’s right to enter and remain in a country. The question whether it is just to employ a restrictive immigration regime that excludes noncitizens from entering a country without permission, and allows for their removal, has served as a springboard for more general theoretical inquiries into whether it is morally justifiable for national governments to show preference toward their own citizenry. The

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questions whether differential treatment is justifiable, and whether principles of justice allow any preference to be shown toward citizens (and, if so, in what circumstances), are now given serious consideration and are promoting highly contested responses. The arrival of noncitizens and their participation in social life has also caused theorists to turn a critical eye toward the status of citizenship itself. The criteria that are used to determine who is a citizen have become subject to increased normative scrutiny. Should a resident be offered citizenship on arrival? Should citizenship be contingent upon an individual’s ability to integrate within a political community? Should multiple citizenships be permissible? Such questions have taken on an air of some urgency. Veit Bader has supplied a useful guide to the academic literature on the normative dimensions of immigration and citizenship by distinguishing “universalist” approaches from “particularist” as follows: Universalist approaches can be divided into (i) utilitarianism focusing on happiness, utility or, more recently and promisingly, welfare or basic needs. . . . (ii) More deontological approaches, stressing different varieties of equal rights of all human beings, like libertarian property or natural rights or the different varieties of egalitarian liberalism or basic rights. (iii) More duty- and virtue-oriented approaches. . . . Particularist approaches are also highly diversified and range from liberaldemocratic or moderate patriotism . . . and liberal nationalism . . . to defenders of social-democratic welfare states . . . to tougher communitarianism and more exclusive patriotism . . . neo-Hegelianism . . . and extreme or “nasty” nationalism.2

It is not fruitful to look for a single theme that connects the various universalists and distinguishes them from the various particularists. As Bader notes, the indeterminacy of the principles adopted by the adherents to the two approaches “explains why practical philosophers in both camps have argued for or against fairly open borders.”3 Nevertheless, it is helpful to recognize a basic dilemma at the heart of liberal democratic theory that is captured by the universalist-particularist dichotomy, namely, whether liberal instincts—particularly those that promote liberty and equality—should be privileged over democratic instincts or vice versa. Chantal Mouffe has provided one of the tidiest explanations of the dilemma in her analysis of Carl Schmitt’s critique of liberal democracy as follows: In [Schmitt’s] . . . view when we speak of equality we need to distinguish between two very different ideas: the liberal one and the democratic one. The liberal conception of equality postulates that every person is, as a person,

Noncitizens and Discrimination 39 inherently equal to every other person. The democratic conception however, requires the possibility of distinguishing who belongs to the “demos” and who is excluded and for that reason the democratic conception cannot exist without the necessary correlate of inequality. . . . It is clear that what is important for Schmitt . . . is the possibility of tracing a line of demarcation between those who belong to the demos—and therefore have equal rights—and those who, in the political domain, cannot have the same rights because they are not part of the demos. Such a democratic equality—expressed today through citizenship—is for him the ground of all other forms of equality.4

Thus, for democrats the identification of defensible criteria by which to define the commonality shared by citizens but not by others becomes a basic political imperative. A simple conception of democracy such as “government of the people, by the people, for the people” displaces foreigners from the realm of the political on the ground of their otherness. But the criteria by which they should be set apart are not self-evident. Their absence renders suspect the practice of excluding the remainder of the world’s population from political and social engagement. Democrats must also face the question whether the issue of membership is one that is properly resolved by democratic decision. In stark terms, “democracy is rule by the people, but someone must first decide who the people are.”5 For liberals, the challenges are equally basic. The grant of broad political, civil, and social entitlements to permanent residents and other noncitizens has led some to question whether the status of citizenship has become unduly diluted.6 Equal treatment of strangers and members is seen to threaten the bonds that produce social cohesion and that provide an incentive for collective engagement. Similar concerns have been expressed by those who focus on the laxity of the criteria allowing noncitizens to gain the status and the ease with which one can maintain it. The primary concerns appear to be, first, that easy access to the status and its very permanence offer insufficient incentive to ensure citizens will take seriously the responsibilities of the status, and, second, that they provide insufficient cohesion, do little to promote a sense of belonging, and lead to anomie within cultural and political life. Bader has also noted that the problem of reconciling the two approaches is difficult but crucial: “Do universalist and particularist approaches have to be combined and if so—as most practical philosophers think—how? Where to start and what does this imply for the contested issue of priority of competing obligations?”7 In this chapter, instead of contributing to this theoretical debate, I examine how it has figured in legal decision making about the rights and status of noncitizens. I also try to identify the strategies used by legal decision makers

40 Donald Galloway

to relieve the tensions created by the various normative vectors and to assess how well legal regimes have coped with the difficulties of fulfilling a commitment to human rights while still allowing for preference to be shown toward the citizenry. By examining a range of domestic and international legal documents and decisions from various jurisdictions, I attempt to lay the foundations for the claim that legal regimes have failed to meet the challenges posed by the “transnational subject” that political philosophers have outlined. By and large, courts have confirmed that a deep Teflon coating protects a government’s sovereign powers in relation to borders and nationality, a coating that is usually sufficiently impermeable to ward off most challenges, even those founded on concern for human dignity. To justify their conclusions in this regard, courts have been compelled to buttress their decisions with some questionable arguments. Although some interests of some noncitizens have been recognized and protected by some legal instruments and judicial decisions, the law has assumed a haphazard and arbitrary quality. I suggest that, as well as being troubling in itself, the incoherence of the decisions and reasons reveals an important gap in our institutional management of issues relating to noncitizens. I attempt to highlight and explain the failure of judicial tribunals to properly account for the limited status and entitlements enjoyed by noncitizens. In particular, I identify and assess three judicial gambits: first, the refusal to subject citizenship law to moral scrutiny for institutional reasons; second, deference to government decision making in the face of moral complexity, and third, the redefinition of basic rights to take account of government objectives. Cumulatively, these gambits can explain why noncitizens experience high levels of juridical insecurity. The Legal Rights of the Noncitizen Legal analysis of the status of the noncitizen and of the benefits that attach is complicated by two factors. First, noncitizens appear in a variety of guises. Even if one restricts the application of the label “noncitizen” to those who have crossed or seek to cross borders, it covers a wide range of individuals: long-term legal residents, undocumented (or “illegal”) migrants, refugees, refugee claimants, victims of human trafficking, and seasonal workers all fit under the general rubric and have little in common other than their lack of secure status and their experience of some degree of exclusion. Second, citizens in liberal democracies commonly enjoy a wide range of benefits including the following: access to employment in both the public and private spheres; membership in professional organizations; education; social benefits including unemployment benefits, social security benefits, workers compensation; civil rights including such fundamental freedoms as

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freedom of speech and freedom of religion; the right to life, liberty, and security of the person and the right to due process where these are circumscribed; legal rights relating to arrest, search, and seizure, criminal trials, and punishment to due process; the rights to equality before the law and to equal protection of the law; political rights such as the right to vote and to stand as a candidate in an election; freedom of movement within the country; and the right to enter the country and to remain therein. Different status holders enjoy different legal rights and privileges and different levels of access both to the territory in question and to the economic, social, and political activities that take place therein.8 In assessing the status of the noncitizen, legal regimes must attend to the particularities of each of these benefits. It is beyond the scope of this chapter to offer a complete or detailed comparative account of how the various classes of noncitizen have fared in regards to each of these classes of benefit. Instead, with broad brushstrokes, I shall draw attention only to some prominent recent legal decisions on significant issues. Political Rights and the Judicialization of Noncitizens’ Claims Arguably, the most important benefit enjoyed by citizens but usually denied to noncitizens is the right to vote. Even in the most generous jurisdictions, the rights of noncitizens to participate in national elections are highly circumscribed.9 The denial to noncitizens of the right to representation in legislatures, or even in the exercise of framing a constitution, underscores the solidity of the idea that legislatures only act on behalf of citizens. It also reveals how well-entrenched are views similar to those expressed by Michael Walzer that a political community is “a group of people committed to dividing, exchanging and sharing social good, first of all among themselves”10 and that “[states] don’t only preside over a piece of territory and a random collection of inhabitants; they are also the political expression of a common life.”11 This is not to say that the interests of noncitizens are irrelevant to national governments. A government is under the (moral) duty to respect the moral status of each individual but it must do so in the context of promoting the interests of those that it represents. It is important to recognize two significant consequences of the disenfranchisement of noncitizens. First, citizenship criteria are rarely questioned by lawmakers. The debates that do occur are premised on recognition of three well-established pillars: the ius soli (citizenship according to place of birth), ius sanguinis (citizenship by descent), and naturalization as an exercise of state sovereignty. These pillars frame the boundaries beyond which political imagination does not tread. Debate generally focuses on the prominence that should be given to each, or on how they should interconnect12 or more usually, on the

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credentials and the proper level of integration within a society that should be demanded of individuals seeking citizenship. Moreover, questions of membership raised in the political arena come to be regarded as technical matters to be resolved by national governments without recourse to universal moral principles. There is a willingness to bracket considerations of morality when issues relating to access to a political community are at stake, as if we were entering a realm of amorality.13 It is worthwhile taking some time to specify clearly how this happens. In any case where a political decision has a profound impact on unrepresented individuals and groups who may exist beyond the boundaries of the community, basic conflict of interest concerns arise. Representative legislatures face the demanding challenge of making (moral) decisions on behalf of a population while at the same time representing the (selfish) interests of that population. Where membership is the issue, the challenge increases exponentially, not only in relation to the criteria of exclusion but also in relation to the criteria of admission. Thus, where a developed country’s immigration policies attract the most highly educated citizens from a developing country, the impact may be devastating for the latter. The fact that there are more Malawian doctors in the English city of Manchester than there are in Malawi14 illustrates the nature of the problem. The global or regional impact of membership decisions renders problematic the absence of representation in the decision-making process. Without a single theoretical framework to address these issues, (and Bader’s analysis reveals the surfeit of competing frameworks) it is unsurprising—although still disheartening—that legislatures have attempted to evade underlying problems by emphasizing the purely technical nature of citizenship rules, by continuing the entrenched doctrines of ius soli and ius sanguinis, or by focusing solely on the domestic dimensions of immigration and naturalization: choosing the best and the brightest as candidates for citizenship and imposing such requirements as an oath of loyalty, or the absence of a criminal record to ensure quality control. In the absence of a universal normative guide, decisions on membership are reconceived as matters of government fiat, presumably to be based on a determination of the best interest of the collectivity as currently defined. Another important consequence of the disenfranchisement of noncitizens is that they are required to press their political claims in other institutions. They have no standing within a legislature to demand that it act on their behalf. By closing the doors of the legislature to noncitizens, we channel them toward the courtroom as the primary locus in which they can pursue their claims.

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There they are subject to and hampered by the institutional shortcomings that are associated with judicial decision making. David Cole has convincingly made the point that noncitizens in the United States are compelled to rely heavily on the judiciary as follows: The fact that the Constitution denies aliens the right to vote makes it that much more essential that the basic rights reflected in the Bill of Rights be extended to aliens in our midst. As a group that is subject to government regulation but denied a vote, aliens are without a meaningful voice in the political bargains struck by our representative system. . . . When one adds to this the ignoble history of anti-immigrant sentiment among the voting citizenry, usually laced with racial animus, aliens are a group particularly warranting judicial protection.15

One practical problem is that noncitizens may not be able to gain access to a court. Consider, for example, the common practice of countries that are signatories to the 1951 Convention Relating to the Status of Refugees16 or its 1967 Protocol,17 of sending immigration officers to work in the airports of refugee producing countries to prevent the departure of individuals. (In Canada, such officials are known as “Migration Integrity Officers.”) This practice is not contrary to any legal obligations specified in the instruments, which recognize only a duty of nonrefoulement of those who are outside their country of origin. Nevertheless, it is deeply problematic: the closer the cooperation between a government intent on maintaining the integrity of its immigration processes and a persecuting state, the more the act of interdiction can be understood as an act of moral complicity with persecutors. Yet the question whether national governments are justified in placing such restrictions on the departure of noncitizens from a territory over which they have no jurisdiction does not seem to perturb the bureaucratic mind. The practical difficulty, of course, is that those who are refused entry may find themselves in the hands of persecutors and be unable to access foreign courts. Even where this hurdle is surmounted,18 the claimant may find it difficult to have the court recognize the legitimacy of the claim.19 Sensitive to the fact that they themselves are not democratically accountable, courts are notoriously reluctant to decide complex polycentric political problems, choosing instead to rely on the ill-defined notion that certain problems are nonjusticiable. Moreover, recognizing their own limited range of expertise, courts have in many circumstances chosen to adopt a stance of modesty rather than secondguess the “technical” decisions of administrative or executive decision makers. Even when litigants frame their claims in terms that refer to violations of their fundamental human rights and freedoms, courts have recognized the need to

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allow for these to be trumped or circumscribed by pressing social concerns. This is particularly noticeable when litigants have framed their claims in terms of equality rights, or in terms of their right to due process. Each of these institutional shortcomings is magnified when the claimant is a noncitizen as I attempt to show in the following sections. Justiciability and Judicial Modesty In this section, I identify three contexts in which the judiciary assumes a stance of modesty to permit to avoid considering a noncitizen’s claims: First, where the claim is to citizenship itself. Second, where the claim relates to the right to enter and remain within a country. And third, where the noncitizen is seeking judicial review of a legal, factual, or discretionary made by an administrative decision maker. The Right to Citizenship That noncitizens are entitled to have a government act on their behalf is a radical legal claim. The least radical and most powerful version (which I shall consider here) would limit its application to long-term residents: the claim is that residence within a jurisdiction gives rise to a right that the government act on one’s behalf, which in turn gives rise to a set of other political rights.20 Such a claim is not based on a liberal notion of inequality or discrimination. That is, it does not gain its force from the idea that one’s treatment is less than that received by a comparator group. Nor is it a claim based solely on one’s moral status as a human being. Instead, it is a normative claim based on the existence of governments with territorial jurisdiction: that they have a duty to act on behalf of residents. Where a litigant raises questions about entitlement to membership, courts have drawn on the concept of nonjusticiability to deny the claim. A telling example is the Canadian case of Solis.21 The Canadian Charter of Rights and Freedoms reserves certain rights for citizens and others for permanent residents. However, it does not define the criteria for identifying who holds either of these statuses. The criteria for obtaining citizenship are found in the Citizenship Act, and the criteria for obtaining permanent resident status are found in the Immigration and Refugee Protection Act. References to citizenship in the Constitution have encouraged lawyers to make arguments first, that the conception of citizenship found there is first more fundamental than that found in federal statutes (it is in the Constitution after all), and second, that it has a broader ambit founded on moral principle to which the federal

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lawmakers have failed to acknowledge. In Solis, it was argued that a long-term permanent resident who had not acquired citizenship according to the processes identified in the statute was nevertheless immune from removal since he met Constitutional standards of citizenship by virtue of the length of time he had spend living within the community. This argument was given short shrift in the Federal Court of Appeal. Rothstein, JA (as he then was)22 states, We agree with Professor Hogg that the concept of citizenship has no meaning apart from statute. Citizenship is a creature of federal statute law. The Citizenship Act is subject to the overriding provisions of the Charter such that if some provision of the Citizenship Act is found by a court to violate the Charter, a Charter remedy is available. However, the appellant here does not challenge the Citizenship Act as such. He only says there is an additional Charter-based notion of citizenship. For the reasons we have given, we cannot agree with the submission.23

The last sentence in this quotation is very mysterious since it does not appear that the court has offered any reasons for concluding that there is no constitutional concept of citizenship. A charitable reading might conclude that the court is citing Professor Hogg as a legal authority, and that his word is sufficient reason. It is noteworthy, however, that in the treatise cited, Professor Hogg does not himself supply grounds for this conclusion. He merely offers the following prediction and pragmatic suggestion: “Now that the concept [of citizenship] has constitutional implications, how will the courts define it? It seems unlikely that the courts would develop their own definition of “citizen,” since the concept has no meaning apart from statute. . . . The best course is for the courts to accept that citizenship is a creature of federal statute law and that it can be changed from time to time by the Federal Parliament even though the consequence of any such change is to change the scope of . . . the Charter.”24 The idea that the term “citizenship” has no meaning apart from statute will come as a bit of a shock to those political and social theorists referred to earlier, whose debates resonate in the halls of academia. In fact, the problem would seem to be an abundance of meanings rather than an absence. Hogg’s declaration is rendered even more disconcerting by a later claim that he makes in the same treatise that in this regard, the term “citizen” is unlike the term “Indian.” He writes, in a footnote, “Contrast the word “Indian” in s. 91(24) [of the Constitution Act] which is obviously not a purely statutory concept, and which has been held to include persons outside the definition of the federal Indian Act.”25 It is distressing that leading jurists can see that

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obviousness of the issue in regard to some groups but cannot muster a single reason for not acknowledging it in case of noncitizens. While Hogg is clearly receptive to the idea that it is folly to allow the legislature to control the ambit of the powers that the Constitution grants to it in relation to Aboriginal peoples who are not adequately represented, he is unable to see similar folly in relation to noncitizens. There is no question that the analysis offered by Rothstein, JA and Hogg offers a simple solution that allows complex problems to be bypassed. In particular, they are able to avoid addressing what the framers of the Constitution meant by the term “citizenship,” (perhaps they did intend that later legislatures be able to import their own conception) or whether it is apt for judges to apply what they identify as the intent of the framers rather than their own “best” interpretation of the term. But such a pragmatic defense ignores two important factors. First, we expect the courts to interpret the Constitution. That is unquestionably a primary part of their function. To evade the task is to fail to fulfill the institutional role. I raise this issue again and in more detail later, when considering current approaches to the Rule of Law. Second, by evading the task, the court is ensuring that the question of citizenship reverts to the body whose very legitimacy depends on its accountability to the demos. The paradox of democracy endures. The noncitizen seeks judicial relief because of the absence of adequate representation in the legislature, yet the court defers to the legislative analysis of the issue. However and herein lies the heart of the problem, the court’s hesitancy to embrace the issue is quite understandable. The question of who is a citizen is not reducible to issues of the type with which courts are accustomed to deal—issues of individual rights. Any alleged individual right to citizenship would have to be traced to more fundamental factors about the nature of the community. An inquiry into these factors would require an assessment of the qualities that allow a community to cohere. That a court may doubt its own capacity to be able to make a determinative decision on what unifies a society is easy to appreciate. Where the legislature is ill placed to determine the membership of the population that it represents, and where the judiciary is unqualified to entertain questions about the nature of political community, an institutional gap is revealed. In the next two sections, I argue that this judicial reticence to protect the interests of noncitizens applies well beyond issues of membership. Complexity, Authority, and Rule of Law In this section, I shall attempt to outline how current judicial conceptions of the Rule of Law bolster the opinion that the distinction between citizens and

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others is nonjusticiable. While one might expect the judiciary, as the stewards of the Rule of Law, to act with alacrity when a moral claim is made, courts around the globe are declining to do so even in relation to the claims of citizens. One can find some shards of an explanation in the idea of moral complexity. The Canadian case of Suresh26 provides fertile ground for analysis. In Suresh, the Supreme Court of Canada determined that, in most circumstances, the decision to return a noncitizen to his country of origin in circumstances where there was a risk that he might face torture would “shock the conscience” of the Canadian public. The court nevertheless refused to declare unconstitutional the provision in the Immigration Act that permitted such return, since the court could conceive of the possibility of valid governmental reasons in exceptional circumstances that could justify it. The decision recognizes that the question whether a person is a danger to the public and the question whether a person does face torture in their country of origin are questions that the minister is singularly equipped to make primarily because of her expertise in the field. Consequently, the court decides that these decisions will be overturned only when the findings of the minister are patently unreasonable. A determination that a decision is patently unreasonable is a decision that is made not by comparing that decision with the decision that one thinks should have been made but rather by looking at the reasons for the decision that have been offered to account for the decision and assess whether they adequately address the issue. This approach reformulates the very concept of the rule of law as a principle that merely requires transparency (which itself can be qualified in situations where national security is at stake) rather than judicial oversight of the merits of a case. By characterizing the decision on the status of noncitizens as requiring technical rationality, the court disempowers itself. By juxtaposing the two parts of the Suresh decision—that the provision is constitutional and that its application will only be quashed where a patently unreasonable decision has been made—one sees that to all intents and purposes the issue has been rendered “extra-legal.” In Suresh, the complexity of the choices to be made regarding the conflicting values is seen as a reason for deferring to the judgment of the government minister. Appreciation of complexity and expertise has led to a willingness to surrender the authority to oversee the exercise of power. The consequence is that the state’s claim to moral authority is unquestioned in its treatment of individuals such as Suresh: the rule of law is subordinated to the determination of a government that holds itself as representing the interests of the citizenry. It is this same idea of moral complexity that led the judiciary to dodge the question of determining the “constitutional” meaning of citizenship,

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and perhaps abdicate its authority in immigration cases. These decisions are conceived as matters of politics rather than matters of basic law, involving interest balancing and policy analysis rather than matters of deep concern to the individuals involved. While the modern “pragmatic and functional” approach to the Rule of Law is perhaps defensible in relation to the claims of citizens—government ministers are answerable to parliament and thereby indirectly to the electorate—the defense is not available when it is a noncitizen’s claim that is being determined. As noted earlier, the noncitizen has no standing to seek legislative supervision of a negative decision. Unlike the citizen, the noncitizen has no political recourse when the courts refuse to review executive decisions concerning her status, rights, or interests. The Immigration Context The most famous and extreme example of the judicial strategy of using a doctrine of justiciability in the immigration context is the plenary power doctrine. Developed in the United States, this doctrine renders immigration laws to a significant extent immune from judicial review by holding that it is beyond the competence of the courts to assess the constitutionality of legislation that controls the arrival and departure of noncitizens into the territory controlled by the state. As was famously noted by Justice Frankfurter in Harisiades v. Shaughnessy,27 a case dealing with the constitutionality of a law allowing deportation of noncitizens who were affiliated with the communist party, “The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.” While a due process or procedural exception to the plenary power doctrine has developed,28 so also has its expansion beyond the immigration context. As documented by Boyd,29courts have extended the doctrine beyond the narrow confines of immigration and deportation to apply to cases involving the domestic rights of resident noncitizens. The use of the plenary power doctrine has received harsh and widespread criticism, perhaps none as incisive as Linda Bosniak’s as follows: Many commentators have observed that the plenary power doctrine is an extraordinary doctrine of judicial abdication that has few if any analogues in other fields of public law. The reasons for this uncommon deference have been variously articulated over the years. Ordinarily courts have invoked the foreign

Noncitizens and Discrimination 49 affairs power and the government’s interest in national sovereignty and selfdefence as rationales for the doctrine. In recent years, however, courts have often declined to justify the doctrine perhaps because it seems increasingly difficult to do so, and have tended simply to invoke the early cases as unquestioned authority.30

While Bosniak may be right that the plenary power doctrine is to a large extent a historical hangover, the doctrine may also be reconceived as an instantiation of a traditional test of nonjusticiability—there is a perceived “lack of judicially and manageable standards”31 to resolve immigration claims, and therefore a hesitancy to enter the field. This view of the plenary power has been defended carefully and persuasively by Alexander Aleinikoff,32 and there is no need to reiterate his arguments and authority here. The judicial strategy of using the doctrine of justiciability to defeat noncitizens’ claims has failed to take root outside the United States. While early common law decisions stressed the breadth of the state’s powers over immigration and while discretionary immigration decisions were regarded as an exercise of prerogative power not subject to judicial review, in general courts now enter the field.33 Even in Australia, where the Constitution contains no bill of rights, the judiciary has resisted legislative attempts to totally immunize immigration legislation from judicial review.34 Nevertheless, although they enter the field, courts have frequently shown reluctance to apply constitutional norms to noncitizens in the immigration context. Courts are encouraged by inadequate international human rights compromises to limit the scope of their involvement. A particularly disheartening recent example relates to people smuggling and human trafficking. In a concerted effort to suppress migrant smuggling and human trafficking by criminal organizations, governments have adopted the Palermo Protocols.35 The Protocol on Migrant Smuggling explicitly identifies the root causes of illegal migration to be poverty and underdevelopment. Yet it also stipulates that the immediate return of a migrant or victim to his or her country of origin is the most fitting response to any particular incident. As a result, the protocols seem to endorse conduct—returning a victim to conditions of vulnerability—that stokes the flames that are recognized to drive the process, creating a cycle of escape and return. The Protocol on Human Trafficking, while aiming to suppress the recruitment and transportation of individuals (primarily women and children) for the purposes of exploitation, also aims for the immediate return of victims to the conditions that made them vulnerable to exploitation in the first place. The inherent ironies are either ignored

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or suppressed. The interest of the individual involved in not being returned to these conditions is not elevated to the status of right. A second aspect of the Trafficking Protocol is worth noting. The protocol acknowledges that demand in the country of destination has no little role to play in explaining the phenomenon of trafficking. Women and children are trafficked in the sex trade because in the countries to which they are sent, there is profit to be made. However, the protocol defines the interests of victims only in terms of “soft law” rather than rights. For example, Article 9 states, “States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, . . . to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.” The provisions inviting signatories to provide for the needs of the victims are formulated in even softer terms. Article 6, for example, provides, “Each state shall consider implementing measures to provide for the physical, psychological and social recovery of victims.” There is not even the pretence that victims of trafficking are rights bearers who may have rights claims against the government of a country whose economy stimulates the process. The primary demand of the protocol is that state parties criminalize human trafficking. Such an obligation allows signatories to pay only lip service to the rights of the victim, since the Criminal Law is not founded on a rights-duty correlation. Ultimately, the victim’s status as foreigner overshadows her status as a legal rights bearer. In the following section, I focus on the ways in which courts tailor constitutional provisions to diminish the rights of noncitizens. The Human Rights Claims of Noncitizens In the absence of a fulcrum to obtain purchase for claims to political recognition, noncitizens have been compelled to frame their arguments for recognition as members of the polity in terms of basic human rights. However, even when they have surmounted the nonjusticiability challenge, these arguments have had limited success and have failed to bear much fruit for the claimants. Indeed, cases where noncitizens have sought vindication of alleged rights have offered an opportunity for courts to circumscribe narrowly the rights of citizens. One can discern in recent judicial opinions a concerted effort to “tame” human rights by defining them with reference to deeply rooted social practices and important government objectives thereby tempering their critical edge. The heady days of the 1980s, where political rights were conceived to issue from principles of political morality rather than social policies, are far behind us.

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Equality Rights Borders (of any kind) indicate divisions between insiders and outsiders; divisions suggest discrimination, particularly when global wealth is distributed unevenly. Discrimination against disadvantaged groups suggests inequality and a violation of dignity. Such violation usually serves as the foundation of findings that a person’s right to equality under the law has been violated. Nevertheless the distinction between a citizen with rights to enter and remain in a country and a noncitizen with no such rights has scarcely raised a glimmer of concern from legal authorities. In Canada, the federal legislature has enacted a provision in the Immigration and Refugee Protection Act that requires decisions taken under the act to be consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. The idea that immigration statuses may themselves be discriminatory and inconsistent with principles of equality is nowhere on the horizon. The fact that the charter itself alludes to both citizens and permanent residents and guarantees different rights to each confirms the absence of any perceived inconsistency.36 Likewise, one can find no hint of hesitation or qualification in the Irish citizenship measures that came into force in January 2005.37 The new provisions, which were preceded by a national referendum and a constitutional amendment, recognize that those born in Ireland to parents with a substantial connection to the country (calculated by reference to time spent in the country) should be entitled to citizenship, while also recognizing that time spent in Ireland by a parent seeking asylum does not qualify as relevant to the issue of “substantial connection.” The earlier law that granted automatic citizenship to those born in the country provided a clear (although contentious) indicator of the geographic nature of the bond that gives rise to the rights and responsibilities of citizenship. There is no such clear indicator underlying the new provisions. The exceptional status of asylum seekers is not explained on any principled ground. Other illustrations are readily available. Under the European Convention on Nationality38 that came into force in March 2000, each state is explicitly authorized to determine under its own laws who are its nationals. However, under Article 5, the “rules of a State Party on nationality shall not contain distinctions or include any practice which amounts to discrimination on the grounds of sex, religion, race, color or national or ethnic origin.” Again, there is no hint of a doubt that creating rules of nationality may itself discriminate on the basis of national origin. One can also go further back to the 1985 United Nations Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in

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which They Live.39 While the preamble latches on to the Universal Declaration of Human Rights and proclaims that all citizens are born free and equal in dignity and rights and everyone is entitled to all the rights and freedoms set forward, Article 2 notes, “Nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any Alien nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens.” Equality jurisprudence in Canada and elsewhere recognizes a complex interplay between universal norms and institutional standards. Equality rights guaranteed in instruments such as the Charter of Rights and Freedoms are now commonly analyzed as being founded on a right not to suffer discrimination. In Canadian jurisprudence, the concept of discrimination is analyzed as differentiation that “perpetuates or promotes the view that the individual is less capable or worthy of recognition or value as a human being or as member of Canadian society, equally deserving of concern, respect, and consideration.”40 This definition, by contrasting a person’s value as a human being and his or her value as a member of society, allows for an application to foreign nationals. However, the determination that differentiation is discriminatory will depend on a comparison between the treatment accorded to the individual in question and the treatment accorded to another comparator group. Where this differentiation is made for relevant and important social reasons, it will likely not be found to be discriminatory. Where a government can defend a differentiation on the basis that it is required for or relevant to the attainment of an important social end, there is thought to be little ground for a judicial conclusion that it shows disdain for those who receive worse treatment. The inquiry can be derailed without looking at the impact of a legal provision on the life of a claimant. This analysis helps explains why it is held to be discriminatory to differentiate between citizens and permanent residents in relation to access to the workplace or to professional organizations but not in relation to rights of entry into the country. It also explains why racist immigration laws are regarded as clearly discriminatory while the exclusion of foreign nationals as such is not. In the leading equality case, the Supreme Court of Canada has identified the purpose of equality rights themselves to be “to promote a society in which all persons enjoy equal recognition.”41 It further explains the seminal House of Lords decision in A. v. Secretary of State42 invalidating as discriminatory an order of the UK government that permitted the indefinite confinement of foreign nationals, who are identified as security risks, but not the indefinite confinement of citizens, who are

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likewise identified. The legal response to terrorism does not demand a distinction between citizen and noncitizen. The judgment of whether human dignity has been violated is shaped by the perceived importance of governmental objectives within a community or by the instrumental necessity of the act of differentiation. However, the instability of this analysis is revealed in another recent Canadian case, Charkaoui v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness.43 In this case, the Supreme Court held that a law that allowed for automatic, indefinite detention of noncitizens while the government attempted to deport them for security reasons did not violate equality rights as long as the detention did not “become unhinged from the state’s purpose of deportation.” The characterization of the detention as being “a deportation matter” rather than a “security matter” appears arbitrary. The security reasons behind the deportation interplay with the deportation reasons to render the characterization suspect. Moreover, even where human dignity has been recognized to have been violated, courts have been willing to rely on weak reasons to justify the decision. To use another Canadian example, in Lavoie,44 the Supreme Court of Canada determined that the dignity of permanent residents is violated when they are disallowed from competing on an equal footing with citizens for public service jobs, but that such an attack on dignity is reasonably justifiable in a free and democratic society where the government is intent on fostering “a sense of unity and shared civic purpose among the diverse population.”45 The balancing in this case is effected after it is determined that the right in question (in this case, the right to equality) has been infringed, and the determination is regarded as an exceptional justification. The idea that human dignity can be trumped by a need to foster social unity in a diverse and multicultural society is an illiberal and disturbing idea. I do not want to be understood to be arguing that the act of differentiating between citizens, permanent residents, and foreign nationals is necessarily discriminatory. On the contrary, I do not believe that it is. What is discriminatory is the treatment that this differentiation is thought to warrant: having identified important objectives, governments are permitted by courts to show a total lack of concern to those who lack citizenship status. Limiting Fundamental Justice It is not only in the field of equality rights that one sees government objectives being used to circumscribe narrowly the rights of noncitizens. Other examples are equally prominent. For instance, section 7 of the Charter of Rights and Freedoms guarantees the right to life, liberty, and security of the

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person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In a leading Canadian case46 that considered whether this right is violated by deportation, the court postulated that the fundamental principle of immigration law was that noncitizens do not have an unqualified right to enter or remain in the country. From this premise, the court made a gargantuan leap—holding that this principle could also be regarded as a fundamental principle of justice within the terms of the charter. Through this process of reasoning, the government’s claim to have the sovereign authority to exclude non-nationals gains constitutional stature and can act as a counterweight against an individual’s interest in remaining in the country. By arguing in this way, the court calls into question the dichotomy between positive law and critical morality and instead promotes the idea that wellestablished legal doctrine, founded on government policy, can define the scope of our basic rights. It is as if the court has decided to enter the universalism-relativism debate, to recognize the idea that universal ideals gain their meaning from their local context and then to define the ideal solely as a reflection of the practice. Another useful illustration is again provided by the decision of the Supreme Court of Canada in Suresh47 in which the court determined that the reach of the section 7 rights could be determined only by balancing the individual interests at stake against important governmental objectives, in this case combating terrorism and protecting public security. This balancing is not conceived as an exercise in justifying infringements of the rights. On the contrary, it is proposed as part of the process of determining the very nature and scope of the rights themselves. Thus, a legal provision that allowed an individual to be deported to a country to face torture was not declared unconstitutional because the court could conceive of a hypothetical situation where this could be justifiable in the extreme circumstances. It is interesting to contrast the reasoning in Suresh with that in Charkaoui. As noted in the previous section, the court in Charkaoui held that detention measures, because they related to the government objective of deportation, did not infringe equality rights. But it also held that the provisions in question were contrary to the principles of fundamental justice. In this case however, the focus is on procedural aspects of fundamental justice. The Immigration and Refugee Protection Act permitted two Cabinet ministers to sign a security certificate declaring an individual to be inadmissible to Canada on national security grounds. The signed certificate would come into force only after a federal court judge determined that it was reasonable. The act allowed the judge to make such a determination without disclosing to the named individual the information on which the certificate was

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based, if there were security reasons for maintaining confidentiality. Noting that the prospect of long-term detention was at stake in the case, this mode of proceeding was held to be contrary to the principles of fundamental justice. The overarching principle of fundamental justice is characterized as being the principle that “before the state can detain people for significant periods of time it must accord them a fair judicial process.”48 As in Suresh, the court in Charkaoui holds that political concerns about national security can shape our notion of what is fair. However, the court goes out of its way to repeat that this shaping process does not involve balancing individual interests against security concerns. Clearly, the court is uncomfortable with the idea that when we determine the ambit of an individual’s procedural rights, we take into account government objectives. However, unfortunately, it does not offer a clear analysis of how security concerns can be relevant without being a counterbalance to considerations of individual entitlement. Moreover, whereas in Suresh the court does not strike down the legislation on the grounds that it can imagine situations where the social interest in national security can outweigh the individual’s interest in not being tortured, the court does strike down the legislative provisions in Charkaoui without considering hypothetical situations where the severity of the security considerations could lead to a holding that the mode of proceeding was fair. The juxtaposition of Suresh and Charkaoui reveals an odd moral outlook: while the court is willing to hold that condemning a person to an horrific fate can be justifiable in extreme circumstances and not a breach of a right, it is unwilling to hold that security considerations can defeat the need to substantially comply with the principle that a person must be given the opportunity to know the case against him. It would appear that the court is unwilling to impose a moral compass on substantive decisions that it characterizes as relating to entry or removal whereas it is willing to do so when procedural protections relating to detention are at stake. This is the bizarre moral universe in which noncitizens find themselves. Limiting Other Rights: Political Activity, Privacy, and Family Life While my illustrations have so far focused on Canada and on cases where rights to equality and fundamental justice are at issue, my general point has a broader application. One can find equally puzzling examples from other jurisdictions relating to other rights. For example, the European Convention on Human Rights, while espousing equality rights and rights to free speech, provides in Article 16 that “nothing in [Articles protecting free speech] shall be regarded as preventing the High Contracting Parties from imposing

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restrictions on the political activities of aliens.” On its face, the article goes well beyond limiting the right to vote to citizens, allowing explicitly for the status of alienage to reduce the ambit of a basic human right. Another powerful illustration is the case law surrounding Article 8 of the European Convention, which provides, 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.49

The case law considering the applicability of this article in cases of deportation reveals a similar tension to that experienced in the Canadian cases cited earlier, with the deportee’s length of residence and network of family ties being weighed against the seriousness of the reasons for deportation. Jacqueline Bhabha50 has documented the extraordinary tensions found in the decisions of the European Court of Human Rights when the rights of noncitizens are being adjudicated. While the majority of judges in the cases examined determined that the government’s interests in deportation outweighed the right of the individual to remain with family members, a minority of judges favored “equality of treatment between nationals and ‘integrated aliens’ or third country nationals in all but ‘absolutely exceptional cases.’”51 One judicial dissent—noted by Bhabha—is particularly telling: In Boughanemi, Judge Martens argued that the European Court’s ad hoc policy of . . . weighing the gravity of the crime against the length of residence and extent of family ties was unacceptable. The distinction between those who arrive at age one or two and those who arrive at age eight is not significant in terms of judging their belonging to a country; the markers of gravity for criminal offences are similarly susceptible to ambiguity and arbitrariness. Judge Martens suggested an alternative approach: “There is only one way to remove all uncertainty and that is to accept the thesis that integrated aliens—that is aliens who have lived all or practically all their lives within a state—should no more be expelled than nationals. [A]s a rule expelling integrated aliens should constitute a violation of their rights to respect for their private life.”52

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The insight at the heart of this quote is that the “us-them” dichotomy that has been so fundamental to legal analysis for so long breaks down where the noncitizen has been allowed to live like a citizen. Conclusion The noncitizen poses three challenges: explain her lack of status by justifying the normative divide between citizens and noncitizens, explain her differential treatment in a way that gives priority to the concept of human dignity over other less important political values, and explain her treatment in the courtroom in a way that accords with a defensible account of the rule of law. The limited goal of this chapter has been to offer illustrations that show that courts in a variety of jurisdictions are failing to meet these challenges. Not only do courts openly reveal their willingness to avoid dealing with the important issues, but they also show themselves to be all too willing to defer to the views of government officials when determining the ambit of the law and to the official policies of government when determining the ambit of the human rights of those who lack political representation. Notes 1. The phrase is that of John Rawls who posited that “a democratic society, like any political society” should be viewed in such a way. See Rawls, John. 1993. Political Liberalism (New York: Columbia University Press), 19. See also Benhabib, S. 2002. Citizens, Residents, and Aliens in a Changing World: Political Membership in the Global Era. In The Postnational Self: Belonging and Identity, ed. Ulf Hedetoft and Mette Hjort. Minneapolis: University of Minnesota Press, 101. 2. Bader. V. 2005. “Ethics of Immigration.” Constellations 12 (2005): 331–35 (footnotes excluded). In six footnotes, Bader offers an impressively lengthy set of sources for the various positions he identifies, including works by Henry Sidgwick, Stephen Nathanson, Donald Galloway, Sissela Bok, Simon Caney, Peter Singer, Robert Goodin, David Hendrickson, Hans Morgenthau, Hillel Steiner, Cecile Fabre, Ann Dummett, Charles Beitz, Joseph Carens, Thomas Pogge, Rainer Baubock, M. Freeman, and Onora O’Neill. 3. Ibid., 335. 4. Mouffe, Chantal. 1999. Carl Schmitt and the Paradox of Liberal Democracy. In Law As Politics: Carl Schmitt’s Critique of Liberalism, ed. D. Dyzenhaus, 161–63. Durham, NC: Duke University Press. 5. Jordan, B., and F. Duvell. 2003. Migration: The Boundaries of Equality and Justice. Cambridge: Polity. 6. See, Schuck, P. H., and R. M. Smith. 1985. Citizenship without Consent: Illegal Aliens in the American Polity. New Haven, CT: Yale University Press; and Jacobson, David. 1996. Rights without Borders. Baltimore: Johns Hopkins Press.

58 Donald Galloway 7. Bader, 2005, “Ethics of Immigration,” 335. 8. Kondo, A., ed. 2001. Citizenship in a Global World: Comparing Citizenship Rights for Aliens. Basingstoke, Hampshire and New York: Palgrave. 9. Jules L. Coleman and Sarah K. Harding have offered a detailed (though somewhat dated) comparative account of the rights of noncitizens that identifies the exceptional cases where countries have provided the right to vote to noncitizens. See Coleman, J. L., and S. K. Harding. 1995. Citizenship, the demands of justice, and the moral relevance of political borders. In Justice in Immigration, ed. Warren F. Schwartz. Cambridge: Cambridge University Press (18–62), 27–28. 10. Walzer, M. 1983. Spheres of Justice. New York: Basic Books, 31. 11. Ibid., 42. 12. So for example, recent attempts to revise the Citizenship Act in Canada have focused on such questions as whether individuals who are born outside Canada to parents who themselves were born outside Canada should be granted the status. 13. See Dauvergne, C. 1999. “Amorality and Humanitarianism in Immigration Law.” Osgoode Hall Law Journal 37:597. 14. See the final report of the Global Commission on International Migration (GCIM) available at http://www.gcim.org/en/finalreport.html. 15. Cole, David. 2001–2002. “Enemy Aliens.” Stanford Law Review 54:953–1004, quotation on p. 981. 16. 189 U.N.T.S. 150 (entered into force April 22, 1954). 17. Protocol Relating to the Status of Refugees. 1967, 606U.N.T.S. 267 (entered into force October 4, 1967). 18. It was surmounted in the United Kingdom case, Regina (European Human Rights Centre and others) v. Immigration Officer at Prague Airport and another (2004) QB 811 (henceforth Immigration Officer at Prague Airport). 19. In Immigration Officer at Prague Airport, the claimants were successful only because they were able to turn the case into one of racial discrimination. 20. See Rubio-Marin, Ruth. 2000. Immigration as a Democratic Challenge. Cambridge: Cambridge University Press. 21. Solis v. Canada (Minister of Citizenship and Immigration) (2000) FCJ No. 407 (henceforth Solis). 22. Now elevated to the Supreme Court of Canada. 23. Solis, para. 4. 24. Hogg, Peter. 2002. Constitutional Law of Canada. 2nd student ed. Chapter 34 (1) (d), p. 736, (Toronto: Carswell). 25. Ibid., 736n26 (emphasis added). 26. Suresh v. Canada (Minister of Citizenship and Immigration) (2002) 1 S.C.R. 3 (henceforth Suresh). 27. 342 U.S.580 (1952) at 596–97. 28. See, for example, Zadvydas v. Davis 533 U.S.678 (2001) and INS v Chadha 462 U.S. 2764 (1983).

Noncitizens and Discrimination 59 29. See Boyd, T. M. 2001–2002. “Keeping the Constitution’s Promise: An Argument for Greater Judicial Scrutiny of Federal Alienage Classifications.” Stanford Law Review 54:319. 30. Bosniak, L. 2006. The Citizen and the Alien. Princeton, NJ: Princeton University Press, 51. Footnotes excluded. 31. This is identified as a criterion of justiciability in the leading U.S. case, Baker v. Carr 369 U.S. 186 (1962). 32. Aleinikoff, T. A. 2002. Semblances of Sovereignty. Cambridge, MA: Harvard University Press. 33. See Neuman, G. 1990. Immigration and Judicial Review in the Federal Republic of Germany. N.Y.U. Journal of International Law and Politics 23:35. 34. Plaintiff S157/2002 v. The Commonwealth of Australia (2003), 211 CLR 476. See generally Crock, Mary. 2004. “Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law.” Sydney Law Review 26:51. 35. Protocol Against the Smuggling of Migrants by Land, Sea and Air. UN Doc A/55/383 (Appendix II), entered into force January 28, 2004; Protocol to prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, UN Doc A/55/383, Appendix III, entered into force September 9, 2003. 36. The Supreme Court of Canada has acknowledged this in Lavoie v. Canada (2002) 1 S.C.R. 769. 37. See The Irish Nationality and Citizenship Act, 2004 available at http://www .oireachta.ie/viewdoc.asp?fn=/documents/bills28/acts/2004/a3804.pdf. A press release from the Department of Justice, Equality, and Law Reform explains the provisions of the legislation See http://www.justice.ie/80256E01003A02CF/ vWeb/pcJUSQ67XDXL-en. 38. European Convention on Nationality 1997, ETS No. 160. 39. UN Doc. A/40/53 (1985). 40. Law v. Canada (Minister of Employment and Immigration) (1999) 1 S.C.R. 497. 41. Ibid. (emphasis added). 42. A. v. Secretary of State for the Home Dept. (2004) UKHL 56. 43. (2007) SCC 9. 44. Lavoie v. Canada (2002) 1 S.C.R. 769. 45. Ibid., para. 57. 46. Chiarelli v. Canada (Minister of Employment and Immigration) (1992) 1 S.C.R. 711. 47. (2002) 1 S.C.R. 3. 48. Charkaoui, para. 58. 49. European Convention for the Protection of Human Rights and Fundamental Freedoms. 1950. ETS No. 5. 50. Bhabha, J. 1998 “‘Get Back to Where you Once Belonged’: Identity, Citizenship and Exclusion in Europe.” Human Rights Quarterly 20 (3): 592–627. 51. Ibid., 624. 52. Ibid., 622 (footnotes excluded).

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CHAPTER 3

National Sovereignty, Migration, and the Tenuous Hold of International Legality The Resurfacing (and Resubmersion?) of Carl Schmitt Jeremy Webber*

Introduction

O

nly once has Carl Schmitt been more in vogue than he is today: during the 1930s when he was the leading legal theorist of the right in Weimar Germany and then, for a time, constitutional theorist to the Nazis.1 Recent international events have thrust him back into scholarly discourse as commentators reflect upon exceptional threats, executive response, and the supposed need to set aside ordinary legality to meet those threats.2 Schmitt’s reflections on states of exception and decisive sovereign action have rarely seemed more apt. This paper explores Schmitt’s claims, not directly in relation to terrorist threats (though its argument is highly relevant to those issues), but rather in relation to the response of the Australian government under Prime Minister John Howard to the arrival of asylum seekers off the northern coast of Australia in the early years of this decade. I draw upon Schmitt not because I find his arguments convincing. His work is illuminating but, I will argue, deeply flawed. And I certainly do not invoke Schmitt for reasons related to the romantic intoxication some feel upon reading him: the sense of revolutionary clarity; the ability to decide, to act, to refuse compromise; the Nietzschean affirmation of the will outside all law.3 For me, reading Schmitt is like looking the devil in the face. The implications of his arguments are obfjectionable but they are also undeniably and powerfully

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seductive. He uncovers—indeed celebrates—claims and motives that have more bite than we would like to admit. We have an obligation to look at him, understand his attraction, and be very clear where and why he goes off the rails. I examine Schmitt’s arguments in the context of the stance taken on national sovereignty, executive authority, and legality by the Howard government in its responses to the arrival of asylum seekers.4 As I will show, those responses bear an uncanny resemblance to a number of Schmitt’s claims about the nature of sovereignty and the role of the executive. Schmitt’s claims are quite particular and not at all commonplace, at least to one schooled in the British constitutional tradition. The resemblance, then, is all the more striking. Of course, I do not think that John Howard, then immigration minister Philip Ruddock, defense minister Peter Reith, or Solicitor-General David Bennett were reading The Concept of the Political and using it as a manual for Australian migration policy. Nor am I invoking Schmitt to damn the Howard government by association with one who became a Nazi theorist— although I do believe that Schmitt’s trajectory should trouble those who find themselves in his company. Schmitt initially considered himself a defender of the German republic, and it is the appeal of his Weimar writings to a specific conception of democratic agency that concerns me here. Impulsions very like those at the foundation of Schmitt’s theory were operative in the Australian government’s actions, and those impulsions produced similar assertions, including a self-conscious commitment to decisive government, a belief that the ability to make forceful decisions is necessary to maintain the nation’s identity, an emphasis on the executive as privileged custodian of that decision-making power, and an impatience with legal constraints. The impulsions had considerable resonance in Australian society. Much as one wishes it were otherwise, there was substantial public support for the Howard government’s actions against asylum seekers.5 My portrait is not a simple one, then, of executive betrayal of a democratic trust. Or at least, if there was such a betrayal it was complex, in which the majority of Australians connived—although perhaps without fully considering the implications and with signs that when those implications became apparent, public opinion drew back. An important aim of this paper is therefore to explore why Schmittian claims have proven so attractive to a politically engaged and fiercely democratic populace. Those impulsions, those drivers of Australian policy, are my subject. I will identify their presence, explain their appeal, and say why they are mistaken. I will then provide an account of the normative force of customary international law and other participatory forms of law making, suggesting why the self-limitation of democratic agency by that law is something to be valued

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even if one is deeply committed to democracy, indeed especially so. The Resurfacing of Schmittian Constitutionalism in Australian Migration Policy The parallels between Carl Schmitt’s arguments and Australian migration policy were evident in the Tampa incident in 2001. The Tampa affair was one of a series of events in which boats, often grossly overloaded and unseaworthy, brought asylum seekers across the Timor Sea from Indonesia with the intention of landing either on the Australian mainland or, more frequently, on an offshore territory of Australia (often Christmas Island or Ashmore Reef ).6 There, the boats would be abandoned and the passengers would claim refugee status. Most of the asylum seekers came from Iraq (still under Saddam Hussein) or Afghanistan (still under the Taliban). Their voyage was organized by middlemen, who charged their passengers extortionate amounts and then crammed them onto rusted hulks for the dangerous crossing. The Australian government tried a wide range of measures to discourage this traffic, including (a) internment of those who landed on Australian territory in camps in the Australian outback, (b) attempts to persuade the Indonesians to prevent embarkation, (c) use of the Australian Navy to repel boats before they reached landfall, and (d) ultimately the excision, by legislation,7 of parts of Australian territory from the reach of the Australian migration law. The Tampa incident itself occurred in August and September of 2001. A small Indonesian vessel, the Palapa, approached Australian waters carrying 433 would-be refugees. Its engine failed. It was caught in heavy swells and then a storm. On August 26, a Norwegian container ship, the Tampa, responded to a call from Australian rescue authorities and picked up the passengers. The ship approached and then entered Australian territorial waters, seeking to land the passengers at Christmas Island. Australian authorities, in close communication with the government in Canberra, closed the port at Christmas Island, refused to allow the Tampa to offload the asylum seekers, and insisted that the asylum seekers be removed from their jurisdiction. When it was feared that the Tampa might land them anyway, Australia sent special-forces troops, the Special Armed Services (SAS), to board the ship. The stand-off lasted until September 3, with Australian authorities seeking to isolate the asylum seekers to prevent any contact between them and authorities who might then have a statutory obligation to process their claims, or between them and lawyers who might act on their behalf. On August 31, the Victorian Council for Civil Liberties and a Melbourne solicitor applied to the Federal Court of Australia to force consideration of the asylum seekers’ claims under the terms of the Migration Act 1958 (Cth)8 or to have the court issue a

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writ of habeas corpus. Within the space of seventeen days, the matter was heard and decided both by a judge of the Federal Court and then by a threejudge panel sitting in appeal. The plaintiffs were successful at first instance, Justice Tony North ordering that the passengers be landed on Australian soil, but unsuccessful on appeal, where the orders were overturned (2:1, Chief Justice Michael Black dissenting).9 By the time of the Federal Court’s decisions, the asylum seekers had been transferred to the Australian naval vessel HMAS Manoora under an agreement concluded between the governments of Australia, Nauru, and New Zealand for the processing of the asylum seekers, and with the lawyers acting for the asylum seekers in order to permit interim measures prior to the court’s final decision on the application. This was the start of the “Pacific Solution.” Most of the Tampa asylum seekers were taken to the island nation of Nauru (302 in all); the rest were accepted directly by New Zealand. In Nauru, the asylum seekers were held in camps while their refugee applications were processed (an operation that took something like two years). Ultimately, out of the 433 passengers from the Tampa, 244 had their refugee claims upheld. Of these, 208 were settled in New Zealand, 29 in Australia, 5 in Sweden, and 4 in Norway.10 Between 2001 and 2007, a total of 1,547 asylum seekers were dealt with under the Pacific Solution. Of these, 1,062 were held to be genuine refugees. A majority of the latter were eventually settled in Australia.11 How did the Howard government’s response, half a world and two-thirds of a century away from Weimar Germany, resemble the arguments of Carl Schmitt? First, there was an extraordinary emphasis upon the role of the executive in defending Australian sovereignty—perhaps (this is the key point) an indefeasible role. Executive authority in the protection of sovereignty was the foundation for the decision of the Federal Court.12 The applicants had argued that the Migration Act exhaustively defined the manner in which claims for asylum could be addressed. They asserted that the executive could only deal with the asylum seekers in the manner provided by that legislation, and that meant that the government had to consider the claims, not simply expel the claimants. The government responded by arguing that it retained inherent executive powers to defend Australia against encroachment and that this allowed it to repel asylum seekers without triggering the protections of the Migration Act. In the end, the majority of the Federal Court sided with the government, finding that the authority to repel noncitizens lay within executive power and that the Migration Act had not displaced this authority. The court was influenced by the close connection that existed (in its view) between that authority and national sovereignty. In the words of Justice Robert French, “The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of

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the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.”13 Now, to this point, the vision of executive authority is not distinctively Schmittian (except perhaps in Justice French’s close identification of national sovereignty with the executive). Although one might quarrel with the court’s interpretation of the scope of the power and the effect of the Migration Act,14 its decision remained within the framework of British constitutional principle: the court held that executive authority persisted but made clear that the power could be constrained by legislative act.15 Nevertheless, there were signs that the government wished to push the argument into novel territory by claiming that the executive’s power to repel asylum seekers could not be limited by legislation. One such indication occurred at the annual conference of the Australian Association of Constitutional Law (AACL), which took place in Perth within the week following the Federal Court’s decision on appeal. There, two principal government lawyers—the Commonwealth solicitorgeneral, David Bennett, QC (the second law officer of the Crown and the Australian government’s principal legal adviser, who appears as counsel for the government in significant cases and had represented the Commonwealth in the Tampa litigation), and Robert Orr QC (deputy general counsel in the Australian Government Solicitor’s office)—wondered aloud whether section 61 of the Australian Constitution might place the power to exclude aliens beyond legislative control.16 That section simply vests executive power in the Queen, stipulating that that power is exercisable in practice by the GovernorGeneral.17 Bennett and Orr suggested that the power to repel those wanting to enter Australia might belong inherently to the executive, constitutionally entrenched by section 61 and therefore exempt from legislation. At the AACL, that argument was floated, not pressed. But it was striking that it should even be contemplated. Within the British constitutional tradition the executive undoubtedly has powers that derive from sources other than statute. Since the turn of the eighteenth century, however, constitutional lawyers have assumed that those powers are subject to legislative restriction and, if the intention is sufficiently clear, abrogation.18 Bennett’s and Orr’s suggestion, if accepted, would have established an executive power exempt from all legislative control, exercisable entirely at the discretion of the government of the day. Such an argument is strongly reminiscent of Schmitt. Schmitt was concerned, above all, with retaining the freedom of the state to act decisively, especially against those who would threaten its existence and character. He took this freedom to be the essence of sovereignty, and although he associated sovereignty with the state as a whole, he considered the executive to be the

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necessary bearer of that decisive power, the privileged protector and wielder of sovereignty especially in times of existential challenge—in Ulrich Preuss’s words, “the representative of political unity and the genuinely political guardian of the constitution.”19 In Schmitt’s theory, this capacity to act could not be limited by law. Law depended, for Schmitt, on the maintenance of conditions of normality. When those conditions were threatened, or at the margins of normality, the state had to preserve a capacity to act in a manner that no law could adequately anticipate and control. The model for this power was the Roman “dictator,” who acted outside the constitution in order to reestablish its foundations.20 This appears at first sight to be a theory of the state’s emergency powers, and so it is. But it is important to realize that for Schmitt the emergency tends to swallow up normality. He sees the ability to act outside of law as the very essence of sovereignty, the foundation of the state’s capacity to determine substantively what is right and to act accordingly, without being trapped into an empty proceduralism. He also argued that moments of decisional power appear throughout any legal system, when one must decide the very application of the law in a manner that the law itself cannot predetermine.21 Even the conditions for triggering exceptional action cannot be determined by law: a sovereign actor must also have the power to decide when extralegal action is necessary. In his famous dictum, “Sovereign is he who decides on the exception.”22 The most the law can do is stipulate who can exercise the sovereign role. Indeed, in Schmitt’s theory the exception tends to become primary, normality secondary. The lawless space is the true space of politics, the space in which the fundamental character of the state is determined and the essential preconditions to legal order maintained. The dictatorial tendencies in Schmitt’s theory are obvious. I do not claim that they were shared by the Howard government. The assertions of the Howard government that most resemble Schmitt’s were concentrated in the international arena and leveled at noncitizens (as indeed Schmitt’s initially were), not at Australian citizens in the domestic realm. But within that restricted sphere the similarities are striking. The Australian government’s response to asylum seekers resembled Schmitt’s theories in its implicit treatment of the executive as the essential actor, in its impatience with legal constraints on executive action, and in the close identification between this freedom of action and national sovereignty. These elements were all present in the government’s argument before the Federal Court that executive authority had not been limited by the Migration Act, and especially the argument floated at the AACL that this executive power might be constitutionally exempt from limitation. They were evident in Prime Minister John Howard’s response to the initial decision of the

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Federal Court (in which the asylum seekers had been successful): “This is a matter that relates to the integrity of Australia’s borders and the integrity of our borders is surely a matter for the democratically elected government”23— not the courts. Although he did not spell it out, “democratically elected government” had to mean the executive, not the legislature, for it was precisely the executive’s attempt to avoid the stipulations of the Migration Act that was in issue in the case, and only days before the government had attempted to secure legislation that would have expressly conferred the powers it was now asserting, legislation that was rejected by the Australian Senate.24 The Howard government did not expressly challenge the idea of legality. On the contrary, it asserted that Australian law (when properly interpreted) allowed it to act as it was doing. But the entire direction of its submissions sought to free the government from legal constraints in the interests of effective sovereign action. This was a continuing theme in the Howard government’s refugee policy well beyond the Tampa crisis, reflected (for example) in its attempts to eliminate judicial review of the decisions of refugee tribunals and its hostility to any criticism based on international legal standards.25 And in the immediate aftermath of the Tampa incident, the government promoted the passage of seven amending acts that limited the grounds for judicial review in migration matters, prohibited class actions in migration litigation, excised a number of Australian territories (including Christmas Island) from the areas in which asylum seekers could apply for a protection visa, and provided expressly for the detention and removal of unauthorized arrivals from those territories. According to the immigration ministry’s press release, these measures “reinforced the sovereign right of Australia to alone determine who could enter the country and in what manner.”26 Finally, there is reason to question the government’s ostensible commitment to legality and democratic accountability. In the midst of the Tampa crisis, government representatives went to great lengths to deny the asylum seekers legal representation, to prevent them from encountering government representatives empowered to receive refugee claims, and to disclaim knowledge of the passengers’ desire to seek asylum in Australia even after the government had unequivocal evidence of that fact.27 At the very least, the government’s commitment to legality placed form above all substance. The government worked very hard to maintain the asylum seekers in a legal limbo where it could act unencumbered. Thus, the events surrounding the Tampa crisis evince on the part of the Howard government a commitment to freedom of executive action that is reminiscent of that of Schmitt, at least at the borders of the Australian state. But there was still another troubling similarity to Schmitt’s theory: the

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tendency to wrap this commitment to decisive action around a definition of the nation that appeared to be exclusive in ethnic and religious terms. In much of Schmitt, this element is hidden, masked by his emphasis on decisive political action as the manner in which a nation defines itself. There is, then, debate in the literature over the extent to which Schmitt’s theory has necessarily ethnonationalist overtones.28 But the defining feature of Schmitt’s theory is the creation of a sharp distinction between friends and enemies. He says, “The political is the most intense and extreme antagonism and every concrete antagonism becomes that much more political the closer it approaches the most extreme point, that of the friend-enemy grouping.”29 The relationship with one’s enemies is not one of dialogue; Schmitt says that the enemy “is in an especially intensive sense existentially something other and alien, so that in case of conflict he signifies the negation of one’s own kind of existence and therefore is fended off or fought in battle in order to preserve one’s own, proper kind of life.”30 Such conflicts “can neither be decided by a previously determined general norm nor by the judgment of a disinterested and therefore neutral third party.”31 This is not a relationship marked by philosophical difference alone, but by something more visceral. At the very least it is a difference that has become acutely personalized, the enmity focused upon a particular class of people. Schmitt insists that friends and enemies are always “concrete human groupings which fight other concrete human groupings in the name of justice, humanity, order, or peace.”32 His prescription for a strong state requires, in David Dyzenhaus’s words, “some set of values which can found the substantive homogeneity of the people, and only once such a basis is in place can space be opened up for either pluralism or values like freedom or autonomy.”33 This set of values is grounded in the concrete characteristics of a people. In Verfassungslehre (1927), Schmitt argues that political equality must be based on a people’s homogeneity, the substance of which may be religious, racial, or common tradition and destiny. Schmitt cites immigration and citizenship policies (including denaturalization, exclusion of nonmajority ethnic groups from constitutional deliberations, and the British prohibition on immigration from the colonies) as ways of achieving this homogeneity.34 Preuss argues that Schmitt’s conception of the political is based on an “assertive common feeling of ‘sameness’ based on race, ethnicity, common history, culture, or language, which for Schmitt forges the members of the group into the ‘oneness’ of a ‘people’—that constitutes the political quality of a group.”35 This, then, captures the conceptual matrix underlying Schmitt’s notion of the nation-state: He frames his concept of the “political” in terms of a decisive affirmation of what one stands for and what one stands against. In

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insisting on this opposition, grounding it in a people’s concrete characteristics, and seeking to accentuate it and transform it into an enmity between “concrete human groupings,” the emphasis on values recedes and an emphasis on us and them—a personalized, physical sense of us and them—takes over. The others are radically unlike us, enemies with whom we want nothing to do. We do not care what they think, for discussion would only muddy the waters. We simply care that they be opposed. The Howard government’s actions showed a similar desire to drive a deep wedge between the Australian identity and the asylum seekers, to treat the asylum seekers as a dehumanized, threatening other, regardless of their actual threat.36 The passengers on the Palapa had the execrable luck to have their voyage coincide with the September 11, 2001, attack on the World Trade Center. The representatives of the government did not flinch from drawing parallels. The solicitor-general told the Federal Court (this is in part Marr and Wilkinson’s paraphrase of the transcript), “‘Today, invasions don’t have to be military. . . . They can be of diseases, they can be of unwanted migrants.’ The government must have the power to protect Australia from the sort of people ‘who did what happened in New York yesterday.’”37 It made no difference that virtually all the passengers on the Palapa were Afghans fleeing the Taliban. Further, in handling the crisis, the minister of defense’s press secretary, Ross Hampton, instructed the defense department that there were to be no “personalizing or humanizing images” of the asylum seekers.38 And to take one final example, at the time of the confrontation, I was living in the prosperous Sydney suburb electorate of long-time Liberal Member of Parliament Alan Cadman. One of his communications to his constituents had a picture of the Tampa on its cover with the concentric circles of a radar grid superimposed upon it, the Tampa at its bull’s-eye. The pamphlet discussed asylum seekers alongside antiterrorism measures. It is hard not to see in these and other statements a coded ethnic component. Indeed, Australian political commentators have coined an apt term for just such appeals: “dog whistle politics,” in which the comments are pitched so that those susceptible to racist appeals get the message but the comments are not, on their face, racist.39 In recent years, a body of scholarship has developed, inspired by Schmitt and associated particularly with the work of Giorgio Agamben, that speaks of refugees as the consummate exceptions who are held outside spheres of legal protection and whose very exclusion is used to define, by opposition, the sphere of the state and the citizen.40 The Australian story might appear to confirm that approach, the state reinforcing its own authority by casting the asylum seekers into a zone of exclusion and nonprotection. Agamben’s is not

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my argument. His theory carries with it a structural determinism that I do not accept, treating the reciprocal relation of exception and insider as universal, engrained within the logic of the state. In doing so it lets our governments off the hook. States do define themselves in significant measure through their policies on membership, including their immigration and refugee policies.41 But Agamben’s presumption that the definition necessarily involves stark differentiation between those within the sphere of the state’s concern and those without is excessively Manichean. Nor is it borne out in practice, where even those states that seek to establish hermetic boundaries find themselves drawn into broader spheres of interaction, many states interact more positively with their would-be entrants, and within the Australian context in particular many individuals advocated a very different role for law. States sometimes do pursue policies that seek to establish their identity against a demonized and rigorously excluded other. If that is the aim, asylum seekers are easy targets, unable to fight back. States sometimes embrace executive action and dismantle legal constraints in their rush to confront that other. They embrace, in other words, both a Schmittian tendency to create clear enemies and a Schmittian constitutional ethos. But neither is necessary. Neither should be able to rely on our acquiescence. Of course many of these features are familiar from well beyond Australian migration policy. They have been characteristic of the Bush administration’s actions post-9/11. There, too, the administration has asserted that executive authority is the one true bulwark of national sovereignty. It has argued aggressively that executive action must be free from legal restrictions and indeed has asserted that freedom directly, sometimes seeking legislative sanction for its actions but often declaring plainly its immunity from legislative control or acting in simple disregard of domestic and international law.42 When challenged, it has defended its initiatives on the basis that decisive action is crucial to defend the United States, and has insisted that opposition to the measures is tantamount to opposition to U.S. sovereign interests. All of these claims are distinctively Schmittian in their assertion of a far-reaching executive authority that must operate beyond the law in the very interests of the law’s preservation (although again, that resemblance is the result of similar underlying impulsions, not the direct influence of Schmitt).43 They also have, all too frequently, the coded ethnoreligious element evident both in Schmitt and in the Howard government’s actions.44 Very quickly the clash becomes not just one of ideas, but rather one between people like us and people who are manifestly not like us. Kim Scheppele has charted the dissemination of such approaches worldwide as a result of U.S. initiatives and has noted the strong attraction of these

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developments to the executive governments of states. She has called this the “second wave of public law globalization,” in which the mechanisms of the international legal order have been used to insert tighter security measures into domestic political regimes worldwide (the first being the dissemination of human rights law in the period following the Second World War). One distinctive element of the second wave has been the enhancement of executive authority relative to local parliaments and courts often in a manner that substantially loosens the constraints of domestic procedural and humanrights protections. And one specific aim of those developments has been to reduce the movement of refugees and asylum seekers on the basis that terrorists might take advantage of this mobility to further their ends.45 The Australian developments are consonant with these developments, although it is important to note that they anticipated them. The Australian actions responded to deep-seated domestic attitudes and political strategies, not merely to U.S. initiatives after 9/11. Australian governments’ concern with the arrival of asylum seekers by boat, their attempt to free refugee decisions from judicial oversight, and their resistance to criticism based on international law all antedate 9/11, although they have benefited from after-the-fact legitimation under the second wave of public law globalization. In one sense, the assertions of executive authority in Australia are more surprising than those in the United States, for within Australia’s parliamentary tradition it has generally been assumed that there is nothing like the U.S. doctrine of the separation of powers between the executive and legislature (although some Australian constitutional lawyers have toyed with the idea,46 and it must be emphasized that even in the United States a great many legal scholars contest, on constitutional grounds, the extent of executive authority claimed by the Bush administration47). But despite these qualifications, the Australian developments responded to impulsions very like those operating in the U.S. case. It is those impulsions that led to the government’s committed resistance to legal restrictions on executive action and that must be examined in order to understand their appeal and assess their force. The Democratic Appeal of Schmittian Constitutionalism Schmitt’s constitutional doctrines hold troubling implications for government by law and for democratic representation. Those implications were manifest in Schmitt’s support for presidential rule in Weimar Germany and his eventual turn toward the Nazis. I am not concerned, however, with the extent to which Schmitt’s theories are attractive to plainly authoritarian regimes but rather with the affinity of his views to an emphatically democratic politics.

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That affinity is, in established democracies like Australia or the United States, much more dangerous. Once again, I am not suggesting Schmitt’s writings have had a direct influence. Today’s politicians are not to my knowledge consumers of Weimar and Nazi constitutional theory. Rather, the constitutional assertions of the Howard government and the Bush administration were driven by considerations very like those that underlay Schmitt’s positions. This section is about those drivers. The first is an overwhelming emphasis on decision.48 Much of Schmitt’s writing, especially his emphasis on the friend/enemy distinction, insists above all on the necessity of deciding between right and wrong, upon deciding what one stands for and what one stands against. This is, in his view, the essence of sovereign action, the ultimate purpose of politics. He rails against what he calls a “romantic” politics that emphasizes unity at the expense of decision: “In the romantic, the ‘organic’ conception of the state rests on [the] inability to make a normative evaluation. This conception repudiates the ‘juridical’ as narrow and mechanical, and it searches for the state that is above right and wrong: that is, a point of reference for feelings, which at the same time is a projection of the romantic subject into the domain of the political.”49 For Schmitt this was dangerous obfuscation: a state affirms its identity through its decisions; it must keep itself free to decide. Three elements typify this decisionism, all of which have strong appeal to those with a commitment to robust democratic decision making. The first is its emphasis that decisions must come out of political action. Right and wrong are not prestipulated by the expert in political or legal theory. The political process—in a democratic system, engagement among citizens themselves—makes the decisions. This leads to the second element: the overwhelming focus on political agency. Schmitt’s theory emphasizes the need for real men and women, living in historical time, to take positions, changing the world in accordance with politically determined priorities. Action is legitimate, necessary, indeed noble, even if it takes place against fierce opposition. Thus the third element: Schmitt’s insistence that these decisions will necessarily be hard-edged, dividing one’s friends from one’s enemies. He strongly resists arguments for consensus and compromise or (worse) for dialogue without decision.50 Each of these three elements is consistent with democratic decision making, where real issues are fought over, decisions are made by majority vote, and victors have the right to implement those decisions even if they have a material impact on people’s lives—indeed especially so, for that is the purpose of the exercise. The elements are characteristic of activist democratic politics of both the right and left. In the specific context of the Tampa crisis, these elements were all evident in the Howard government’s position: its

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insistence on having to make firm decisions, its use of an uncompromising language of legals and illegals, and its tendency to forge a link between these features and sovereign action in the nation’s interest. Schmitt’s decisionism also underpins his assertion that the executive must be the predominant actor. The executive is able to act directly in a way the legislature cannot. It does not have to work through a protracted and frustrating process of debate in a multimember chamber, followed by an elaborate system of voting—a process that Schmitt considered mechanistic, creating an outcome that represented no one’s actual will.51 When relying on its own powers, the executive gets to act in the absence of an opposition, without the need for continual challenge and justification before one’s opponents, and certainly without the need for compromise. These advantages (to the government) of autonomous executive action were acutely evident in the Tampa crisis, where the government’s attempt to secure a statutory power to repel asylum seekers was blocked by a majority in the Senate, forcing the government to argue the existence of an inherent executive power.52 One might even say that the very makeup of the executive exemplifies the commitment to decisionism, for it includes only the party that won the last election. Note that the focus on executive action is not, in a simple sense, antidemocratic. On the contrary, it fosters immediate and effective action by the people’s chosen leaders. But it does tend to treat the public’s will as unitary, the decision of the majority (or often a plurality) as the decision of all, and an election held at one moment as the only authoritative expression of the public’s will from then until the next election, without any requirement that the executive consult the multitude of members of the legislature who more accurately represent society’s full range of interests. It is, in short, a plebiscitary conception of democracy in which all the people are taken as speaking with one voice at one time, electing either a single leader or a cohesive group that then has a mandate to make the decisions in the public’s name. It draws on the kind of democratic legitimacy that underpins the argument that the U.S. president is the only true representative of the American people, because unlike individual congressmen or senators he is the only politician for whom all the people have voted (an argument, it must be said, that would be particularly incongruous in a parliamentary system such as Australia’s, in which the prime minister’s tenure depends upon the support of a majority in the House).53 It fosters clarity of definition and vigorous action, but does so at the expense of the complexity of interests in society, the need for continual deliberation among people representing those interests, and the possibility that deliberation will lead to a change of position. Schmitt’s impatience with legal constraints can also be seen as responding to a democratic ideal. The more that democratic decision making is subjected

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to legal control, the more the locus of effective decision making shifts from the people’s representatives to the courts. At the limit, democratic decision making is so structured and confined that elected representatives cease, in effect, to be able to decide much of anything. Their actions are entirely framed and guided by what the interpreters of the law permit them to do. This, of course, forms the basis for the standard criticism of the constitutional review of legislation by courts. But governments can and the Howard government did see it as applying to other forms of legal constraint. Criticism on the basis of international law can be seen as shifting the power to decide from domestic, democratically elected governments, responsible to the Australian people, to institutions dominated by foreigners. Judicial oversight of refugee tribunals can be seen as shifting the power to decide issues of credibility and threat from the government’s agents to unrepresentative, unresponsive, and inexpert courts (even though the standards the courts apply in this form of judicial review are generally those established by the democratically elected legislature).54 Democratic decision making and legal control are portrayed in stark opposition. The reaction against legal control is all the stronger when it comes to issues of identity. How can “who we are” be subject to the determination of lawyers (or, worse still, to the judgment of some other country’s lawyers)? Isn’t that for the people themselves to determine? Doesn’t it form the very essence of self-determination? Aren’t such determinations highly particular, necessarily arbitrary, not a matter of universal principle? And isn’t who one lets into a country indissolubly tied to one’s aspirations for the nation’s character? Schmitt would answer yes to all these questions. He treats the definition of the country’s identity as necessarily beyond law, indeed as providing the precondition of collective action through law. One Australian commentator was puzzled at Justice French’s invocation of “popular sovereignty” in the following passage from the Tampa decision: Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not. That power may also be linked to the foundation of the Constitution in popular sovereignty implied in the agreement of the “people” of the pre-federation colonies “to unite in one indissoluble federal Commonwealth.” It may be said that the people, through the structures of representative democracy for which the Constitution provides, including an Executive responsible to the Parliament, may determine who will or will not enter Australia.55

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But the invocation makes perfect sense if the people’s identity is seen as extralegal, the product of self-assertion at the foundation of the constitutional order. In the next section I argue that the blunt opposition between democracy and law is misconceived. But I should make clear that I am not adopting one common response to the Schmittian challenge. I am not saying that the subjection of democratic decision making to law is justified by an appeal to principles of natural law, applicable to all, that must trump majority decision making. On the contrary, I have a strong commitment to maintaining democratic agency, even in matters of fundamental right. Even if principles of natural law exist, we disagree over their meaning and import. We therefore need a mechanism for resolving that real-world disagreement; if we try to base our actions directly on the truths of natural law, we immediately confront the question, “Whose natural law?” And in resolving that question, democratic deliberation and determination, on a basis that is participatory and that recognizes citizens’ equality, retains real advantages.56 There may be circumstances in which judicial determination makes good sense, but those situations need special justification. Subjecting a democratic decision to judicial second-guessing does shift the ability to decide from an arena in which citizens participate to one in which participation is severely attenuated. The democratic critique does have a foothold. Where the critique goes awry is in its treatment of democratic agency as being maximized—indeed as being exercisable—in the absence of law, its assumption that the people speak with one voice, and its presumption that the executive is the privileged possessor of that voice. Democratic agency works through law and is most effective when that law is faithfully observed. Indeed, democratic decision making benefits greatly from having rule-governed institutions even for its stable and coherent expression. Otherwise it is liable to fall into a cacophony or to be usurped by whoever controls the coercive arms of the state.57 Those rules, that law, can be inherent in the democratic institutions’ operation. They need not rely upon a system of sanctions externally enforced by courts. We often forget that the “rule of law” was first elaborated in societies that embraced sovereign representative assemblies.58 The False Promise of Schmittian Constitutionalism But if one is committed to democratic agency, what gives law its traction? Schmitt’s constitutionalism purports to exalt political agency by rigorously defending it against legal constraint. He seeks to achieve maximum freedom to act and effectiveness by freeing it from all encumbrances. The Howard government and Bush administration have similarly sought to emancipate

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government from law, at least in the international realm. But has that increased their margin for maneuver and their effectiveness? There is a strong argument that it has reduced, not increased, their ability to act. This is most obvious in the case of the Bush administration with respect to the Iraq War. In the lead-up to that war the administration manifested contempt for international institutions, sought to minimize their role in determining U.S. actions, and played fast and loose with the strictures on the use of force and the treatment of prisoners under international law.59 It was not going to subject U.S. interests to the judgement of foreigners. But what is most striking is the speed with which the administration was forced to retreat, albeit grudgingly, from these positions. This was apparent in the very first days of the war, when Secretary of Defence Donald Rumsfeld was driven to claim the protections of the Geneva Conventions for captured U.S. soldiers, even though the United States had adopted highly questionable interpretations of those same conventions to deny their application to prisoners it had taken in Afghanistan (a denial rejected by the U.S. Supreme Court in Hamdan v. Rumsfeld).60 And as the war worsened and other international crises loomed, the administration rediscovered the value of multilateral action, coalition-building, and even the United Nations—although by that time, of course, it had squandered the substantial international support it had held in the aftermath of 9/11.61 Far from enhancing political agency, the administration’s unilateral action had weakened the United States and reduced, not expanded, its room for maneuver. Developments in the wake of the Tampa incident were similar although less dramatic. The Howard government began the incident by asserting a right simply to repel asylum seekers from Australia’s territorial waters. But as the incident progressed, it found itself enlisting the assistance of Nauru, New Zealand, and the UN High Commissioner on Refugees to resolve the standoff. It has since pursued bilateral negotiations with Indonesia in order to stem the flow of asylum seekers and has continued to be involved in processing refugee claims. In the end it has admitted a substantial proportion of the asylum seekers affected by the “Pacific Solution.”62 The point is that our ability to act in the world is not merely a function of our ability to pursue our aims with the least imaginable constraint. No actor, not even the United States, so monopolizes power that it can maximize its effectiveness by shunning all concessions to other actors, relying purely and simply on its own might. On the contrary, one’s reach is extended if one can enlist the willing cooperation or at least the acquiescence of others. This is where law comes into its own. One is best able to secure the assistance of others if one (a) recognizes the existence of standards of conduct, and (b) ensures that one’s actions are reasonably consonant with these standards.

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At a minimum, these provide the predictability and trust on which all social cooperation, including obedience, is based. Hence Stephen Holmes’s argument (following Jean Bodin) that even an absolute monarch has an interest in binding himself to law.63 And while principles of action that are unilaterally decreed may secure these minimal advantages, one gains considerably more if the normative force of the standards is generally acknowledged. Then, others too recognize one’s actions as legitimate, they too can be held to those standards, they know the norms without being specifically informed of them (thus improving compliance), and they can be exhorted with some hope of success to help in the enforcement of the norms.64 For this to happen, the norms cannot simply be the projection of one party’s will. They must involve concessions to the diverse views of all participants, aggregated through some collective process such as formal agreement; majority rule; action, adjustment, and acquiescence; decision following consultation—each of which, of course, has its own strengths and weaknesses. The aggregation allows the norms to secure others’ acquiescence. The norms that result will not conform to any one party’s view of the right. Nor will they conform to some sense of natural law. They will be shaped by the specific context, including the relative power of the parties. Participants may well consider them to be imperfect, even deeply compromised. But they are of value not because they are right but because they are shared.65 This value is substantial. It is the shared character of the norms that provides a claim on the conduct of all participants so that one can insist that others observe the norms. It permits constructive and peaceable interaction despite the persistence of disagreement. It allows one to maintain a normative community made up of diverse parties, who continue to argue over ultimate questions of truth and justice. This, I suggest, describes the normative force of all law in all contexts, including customary law at the international level. It is this shared quality, relatively autonomous from the particular conceptions of each party, that permits countries as diverse as the United States, Iran, Indonesia, China, and Australia all to acknowledge, sometimes grudgingly, the existence of international norms. They do so not because they agree on all aspects of those norms. Rather, they see the need to maintain some minimal standards of international conduct so that they can continue to enjoy the benefits of peaceable international interaction that come with membership in an international community.66 In fact, the Bush administration found itself drawn to legal norms at the very same time that it was attempting to insulate itself from them. It did not simply spurn international law. Instead, it sought to redefine it, albeit in a manner that departed significantly from international jurisprudence and that

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was of distinctly limited success. In the aftermath of 9/11, it used the UN to secure antiterrorist measures internationally.67 In the lead-up to Iraq, it retained the veneer of legality precisely in order to seek the assistance of allies, especially the blessing of the UN Security Council.68 Nor did it eschew constitutional argument at the domestic level. Rather, it argued that the constitution itself allowed the administration to disregard legislation.69 Similarly during the Tampa crisis in Australia, the Howard government always claimed to act under a mantle of democratically enacted law. For of course, the benefits of recognizing, maintaining, and complying with a system of legality (or pretending to do so) also apply within countries. There too, law is indispensable to any collective project. There is no unitary, Schmittian “will of the people” that can express itself all the more clearly if only law would get out of the way. That will has to be consciously constructed in the presence of significant disagreement. That can only be achieved in a manner consistent with citizens’ participation and equality through social institutions that allow for deliberation among those who disagree and some process for bringing deliberation to a provisional close. The outcomes rarely express a perfect vision of justice—but of course that is unobtainable as long as citizens argue over what perfection entails. But they do provide an approximate, mediated, and aggregated reflection of citizens’ conceptions of justice, based on the equality of citizens, which allows them to act collectively. This suggests why Schmitt’s embrace of plebiscitary democracy and executive domination is misconceived. The people’s will is not unitary. It is necessarily composite, in which opinions change as experience accumulates. The legislature provides the best representation of that composite and changing nature. In contrast, the executive narrows down representation, limiting the scope for challenge and debate. It does not have a privileged capacity to tap into the common will (what will?). Indeed, it too is a collective that internalizes differing opinions and requires mechanisms for hammering out a common position. It just does so from a much narrower base. Its decisions represent the majority view of a subset of the community, a view fashioned largely behind closed doors. And the more it strives to achieve a genuinely unitary character, the more it has to narrow itself. Thus far, my argument has been driven by what is necessary to secure cooperation, maintain peaceable community, and engage in effective action in the face of disagreement. It has been relatively open to whatever principles the social processes may establish. It may seem, then, insufficiently grounded in normative principle and excessively dependent upon the balance of power in a given field. But is that so? The ability to sustain societies in the face of disagreement is essential to maintaining viable, tolerant, and internally

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diverse communities. That alone is of great normative value. Moreover, if the governments of those communities are responsive to the interplay of experience and opinion within them, one begins to approximate virtues of self-government and equality of participation, one fosters debate over fundamental issues, and one encourages governments to respond to citizens’ conceptions of right and wrong. The representation of a diversity of experience fosters humility in human affairs. It permits public policy to be based on the widest possible range of consideration. Those qualities may not be valued by governments that believe they have an infallible grasp of truth, but they will be valued by the rest of us. Of course, democratic procedures do not guarantee virtue. One can imagine situations in which a society may get caught in a vicious spiral where rootand-branch opposition becomes the best alternative. Schmitt faced one such situation in the rise of Nazism; to his lasting discredit, he threw in his lot with the Nazis. But guarantees are unattainable in any human institution. Broadly representative institutions, working through rather than against law, are most likely to forestall than create such situations. In his writings, Schmitt holds out the promise of sovereign action freed from all external constraint, entirely self-determined, providing maximum scope for political agency. Some governments, not least the Bush administration in Iraq and the Howard government in its treatment of the asylum seekers, have been seduced by a similar vision. But Schmitt’s promise is false. It is premised on a view of freedom that sees freedom as consisting simply in a lack of external entanglements. We inevitably live and act within social fields where our actions are dependent on others. Freedom and effectiveness depend upon the quality of our relations with those others, not upon our disregard for them.70 Conclusion Many commentators have noted the resistance of both the Howard government and the Bush administration to the constraints of international law. It might be thought, then, that these governments were concerned primarily with the defense of national sovereignty. This is indeed partly true, but the parallels to Schmitt suggest that the concerns run deeper. They extend to impatience with all legal restraints on executive action, at least when those restraints are created by pluralistic institutions responsive to a diversity of views. They reveal a strong commitment to decisive action, taken by the executive, in the interest of unitary democratic will conceived in plebiscitary terms. They seek to insulate the executive from judicial review, even forms of judicial review that confine executive action within the legal framework

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adopted by the legislature. And this is not simply a matter of parties chafing against the detail of a legal regime; they have resisted the application of the regimes in principle. The arguments invoked by the governments are therefore reminiscent of those leveled against judicially enforced bills of rights, criticizing the displacement of democratic institutions by the courts. But there is one crucial difference: in the situations described here, the executive arm of government is attempting to evade the effect of laws enacted by the domestic legislature or that emerged from the institutions of international law. It is an assertion of executive immunity from the broadly representative and participatory mechanisms of law-making both at the domestic and the international levels, not simply from the decisions of judges.71 It affirms a conception of democracy that is intolerant of divergent opinions and of compromise and that treats democratic legitimacy as attaching exclusively to those who have had the good fortune to have achieved a plurality of votes in the last election—to the winners, not the also-rans of the House and Senate. In the Australian case, it is true that this assertion of executive power has been focused at the borders of the Australian state. Even there, the Howard government has not directly rejected legality. Instead it has vigorously reinterpreted the law, sought to push through amendments, or sought to hide the events that would trigger application of the law in order to emancipate the executive. It has not embraced the frank tendency to dictatorship evident in so many of Schmitt’s writings. It has acted always in the name of a fiercely defended sense of democratic agency. That assertion of democratic justification, those concessions to the principle of legality, have been essential to retain the government’s popular support in what is a deeply democratic society. Moreover, the government has also bumped up against the costs of unilateral action in the international sphere and has been pushed back toward cooperation with its neighbors and with international agencies. The government might experiment with Schmittian constitutionalism, but it has not been able to make that conception prevail, at least not in public discourse. Schmittian constitutionalism may have surfaced in surprising ways, then, but it has also been forced back beneath the surface. Should we therefore be concerned? The answer is yes, for at least three reasons. First and most importantly, the actions of the Howard government have had a devastating impact on those with the bad luck to be consigned to the ranks of the enemy: the asylum seekers. The visiting of such misery on a small, vulnerable, defenseless and desperate group of people, twothirds of whom have been held to be genuine refugees,72 does Australia no credit. A politics founded on identifying and punishing enemies has a painful human cost.

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Second, the Howard government’s emphasis on executive independence from legislative control, clothed as it is in the garb of sovereign and democratic legitimacy, has potential application well beyond the sphere of immigration. Traditionally, executive authority has been subjected to parliamentary control precisely because the possibilities for its abuse are so great. Certainly in the United States, the emancipated executive has been active in matters other than immigration so that citizens, too, have fallen into the legal black holes created by the post-9/11 security measures (although with the decision in Hamdi v. Rumsfeld,73 the U.S. Supreme Court has begun to limit this executive authority). It may be that citizens of particular ethnic origins are especially exposed to such jeopardy, but the effective exclusion of citizens from the protection of the law on ethnic grounds should itself concern all Australians. Third and finally, it is no accident that Schmitt’s constitutional theories are conjoined with an exclusive conception of who counts as a member of the nation. The assertion of a unitary popular will, dismissive of the breadth of representation in parliament and seeking to divide friend from enemy, will tend to fall back upon a visceral, ethnically charged conception of what it means to be an Australian. As many have observed, the Howard government has played with just such a definition in its dog-whistle politics. It has reaped the effects in the deterioration of the country’s ethnic relations, exemplified most clearly by the Cronulla riots of 2005. In the end, dog whistles don’t merely affect the racists. Those baited by the dogs also get the message. And public life generally is degraded, embittered, and fractured along ethnic lines. Notes * My thanks to Marcia Barry, Hadley Friedland, Christina Godlewska, and Kate Gower for their able research assistance and to Jutta Brunnée, Hilary Charlesworth, Catherine Dauvergne, David Dyzenhaus, Simon Evans, Hadley Friedland, Christina Godlewska, Kate Gower, Claire Inder, Rebecca Johnson, Andrew Petter, Donald Rothwell, Ben Saul, Rayner Thwaites, James Tully, George Winterton, and Anna Yeatman for their trenchant comments on previous versions of this chapter. All remaining errors are my own. 1. Kennedy, E. 2004. Constitutional Failure: Carl Schmitt in Weimar. Durham, NC: Duke University Press, 11–37. 2. See, for example, Scheppele, K. L. 2004. Law in a Time of Emergency: States of Exception and the Temptations of 9/11. University of Pennsylvania Journal of Constitutional Law 6:1001–83; Stirk, P. 2004. Carl Schmitt, the Law of Occupation, and the Iraq War. Constellations 11:527–36; or the set of articles by Sanford Levinson, Oren Gross, and William Scheuerman. 2006. Constellations 13:59–124.

82 Jeremy Webber 3. For discussions of Schmitt’s reception, see: Strong, T. B. 1995. Foreword: Dimensions of the New Debate Around Carl Schmitt. In The Concept of the Political, by Carl Schmitt. Chicago: University of Chicago Press, ix–xxvii; Müller, J. 2003. A Dangerous Mind: Carl Schmitt in Post-War European Thought. New Haven, CT: Yale University Press. Schmitt himself was not Nietzschean: Meier, H. 1995. Carl Schmitt & Leo Strauss: The Hidden Dialogue. Trans. J. Harvey Lomax. Chicago: University of Chicago Press, 65. 4. For good accounts see: Marr, D., and M. Wilkinson. 2004. Dark Victory, 2nd ed. Crows Nest: Allen and Unwin; Crock, M., B. Saul, and A. Dastyari. 2006. Future Seekers II: Refugees and Irregular Migration in Australia. Sydney: Federation. 5. See, for example, Roy Morgan International, “‘Refugees Not Welcome’ Australians Say,” Finding No. 3446, September 25, 2001, http://www.roymorgan .com/news/polls/2001/3446/; “Tough Stand Key to Howard’s Recovery,” Finding No. 3449, September 25, 2001, http://www.roymorgan.com/news/ polls/2001/3449/; and “What happened on November 10? Did the ‘race card’ (border protection) swing the electorate?” Finding No. 3476, November 27, 2001, http://www.roymorgan.com/news/polls/2001/3476/. 6. See Marr and Wilkinson, Dark Victory, note 4. 7. Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). 8. Cth is the designation used in Australian legal citation style to indicate that this is a Commonwealth (i.e., federal) act, rather than an act of one of the Australian states. 9. Victorian Council for Civil Liberties v. Minister for Immigration & Multicultural Affairs (2001) FCA 1297 (North, J); Ruddock v Vadarlis (2001) FCA 1329 (Full Court). 10. UNHCR Media Backgrounder, January 28, 2005, http://www.unhcr.org.au/ pdfs/tampaupdatemediabackgrounderfinal.pdf. The number of successful refugee claims was reduced by a policy of financially aided repatriation to Afghanistan created by the Australian government following the fall of the Taliban: “U.S. Committee for Refugees World Refugee Survey 2003— Australia,” http://www.unhcr.org/home/RSDCOI/3eddc4902.html. 11. Rummery, A. 2007. Australia grants visa to Iraqi man held on Pacific island for five years. UNHCR News Stories, February 1, 2007, http://www.unhcr.org/ news/NEWS/45c1f1064.html. 12. Ruddock v Vadarlis, (2001) FCA 1329. 13. Ibid., para. 193. 14. For criticisms of this aspect of the judgment, see Evans, S. 2002. The Rule of Law, Constitutionalism and the MV Tampa. Public Law Review 13:94–101; Winterton, G. 2003. The Limits and Use of Executive Power by Government. Federal Law Review 31:421–44; Winterton, G. 2004. The Relationship Between Commonwealth Legislative and Executive Power. Adelaide Law Review 25:21–50; Evans, S. 2006. Continuity and Flexibility: Executive Power in Australia. In The Executive and Public Law: Power and Accountability in

National Sovereignty, Migration, and the Tenuous Hold of Legality 83

15.

16. 17.

18.

19.

20.

21.

Comparative Perspective, ed. P. Craig and A. Tomkins. Oxford: Oxford University Press, 89–123. Ruddock v. Vadarlis. (2001). FCA 1329, para. 181–85 and 193 (J. French). The majority suggested that when a particular executive power was of great significance to the sovereignty of the Australian nation, however, the court should require particularly clear language before concluding that the power had been limited by statute (para. 185). The suggestion was made orally during a conference sessions at which the author was present and has not, to my knowledge, been expressed in writing. Section 61 reads, “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.” See generally Goldsworthy, J. 1999. The Sovereignty of Parliament: History and Philosophy. Oxford: Clarendon; and for a canonical statement of the British position: Attorney-General v. De Keyser’s Royal Hotel Ltd (1920) AC 508. For arguments to the same effect under the Australian constitution (with respect to the general attribution of executive power to the Queen; grants of specific powers raise particular considerations) see Winterton, G. 1983. Parliament, the Executive and the Governor-General. Melbourne: Melbourne University Press, 33–34, 69–71, and 94–101 (where Winterton cites and answers contrary opinions); Winterton, G. 2003, The Limits and Use of Executive Power by Government; and Winterton, G. 2004, The Relationship Between Commonwealth Legislative and Executive Power, (where Winterton also notes comments by Sir Maurice Byers, former Commonwealth solicitor-general, suggesting that certain executive powers may be exempt from legislative restriction, a view that Winterton rejects). Preuss, U. K. 1999. Political Order and Democracy: Carl Schmitt and His Influence. In The Challenge of Carl Schmitt, ed. Chantal Mouffe. London: Verso, 155–79. See also Bendersky, J. W. 1983. Carl Schmitt: Theorist for the Reich. Princeton, NJ: Princeton University Press, 113, 129–30, 150 (who argues that Schmitt advocated decisive presidential action only temporarily to resolve the crises of late Weimar Germany, not permanent dictatorship); Dyzenhaus, D. 1997. Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. Oxford: Clarendon, 70ff. (who argues persuasively that Schmitt’s views did indeed tend toward unlimited dictatorship); McCormick, J. P. 1997. Carl Schmitt’s Critique of Liberalism: Against Politics as Technology. Cambridge: Cambridge University Press, 237–44; Kennedy, Constitutional failure, 13. McCormick, Carl Schmitt’s Critique of Liberalism, 121–56; McCormick, J. P. 1997. The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers. Canadian Journal of Law and Jurisprudence 10: 163–87. Norris, A. 1998. Carl Schmitt on Friends, Enemies and the Political. Telos 112:68–89; Scheuerman, W. E. 1999. Carl Schmitt: The End of Law. Lanham, MD: Rowman and Littlefield, 15ff. See also Meier, Carl Schmitt and Leo Strauss, 24–25.

84 Jeremy Webber 22. Schmitt, C. 1985/1934. Political Theology: Four Chapters on the Concept of Sovereignty. 2nd ed. Trans. G. Schwab. Cambridge, MA: MIT Press, 5. 23. Quoted in Marr and Wilkinson, Dark Victory, 193. 24. Ibid., 127–31. 25. For judicial review, see Crock, M. 2004. Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law. Sydney Law Review 26:51–74; Crock, Saul & Dastyari, Future seekers II: Refugees and irregular migration in Australia. For international law and Australian refugee policy, see Mathew, P. 2002. Australian Refugee Protection in the Wake of the Tampa. American Journal of International Law 96:661–76; Kneebone, S. 2006. The Pacific Plan: The Provision of ‘Effective Protection’? International Journal of Refugee Law 18:696–721; Charlesworth, H., Chiam, M., Hovell, D. and G. Williams. 2006. No Country is an Island: Australia and International Law. Sydney: UNSW Press, 83ff. 26. Minister for Immigration and Multicultural Affairs, Media Centre. 2001. Australia’s Border Integrity Strengthened by New Legislation. MPS 164/2001, September 26, http://www.minister.immi.gov.au/media_releases/ruddock_ media01/r01164.htm. 27. Marr and Wilkinson, Dark Victory, 148–49, 166. A particularly egregious lapse in democratic ethics occurred during the “children overboard” affair less than one month later, when the Australian immigration minister, defence minister, and prime minister all suggested that a group of asylum seekers on another unseaworthy vessel had thrown their children overboard to provoke rescue, then neglected to retract their allegations long after the government received unequivocal information that the initial reports had been wrong (neglect being the most generous characterization of their actions)—and this all in the midst of an election campaign in which asylum seekers were the central issue. Marr and Wilkinson, Dark Victory, 240–78. 28. See especially Bendersky, Carl Schmitt: Theorist for the Reich, 90 and 195–273. 29. Schmitt, C. 1976/1932. The Concept of the Political. 2nd ed. Trans. G. Schwab. New Brunswick, NJ: Rutgers University Press, 29. 30. Schmitt, C. 1927. Der Begriff des Politischen. Archiv für Sozialwissenschaft und Sozialpolitik 58:1–33, quoted in Meier, Carl Schmitt and Leo Strauss, 18. 31. Schmitt, The Concept of the Political, 27. See also Hirst, P. 1999. Carl Schmitt’s Decisionism. In The Challenge of Carl Schmitt, ed. Chantal Mouffe. London: Verso, 7–17; and Norris, Carl Schmitt on friends, enemies and the political, 83: “The homogeneity that defines the group may well have it origins in a shared religion or a shared set of moral values. But politically this content is irrelevant. This would seem to squash most public debate and deliberation. Moral, economic and even religious matters are things about which one can argue. But shared identity, if there is one, appears to be nothing more than a fact.” 32. Schmitt, The Concept of the Political, 67. Kennedy notes that on this view, the political tends to collapse “back into the political distinctions of race and nation:” Kennedy, Constitutional Failure, 23.

National Sovereignty, Migration, and the Tenuous Hold of Legality 85 33. Dyzenhaus, D. 1999. Putting the State Back in Credit. In Mouffe, The Challenge of Carl Schmitt, 75–91. See also McCormick, Carl Schmitt’s Critique of Liberalism, 255–56. 34. Kennedy, Constitutional Failure, 129–30, 225n46. 35. Preuss, Political Order and Democracy, 156. Hence too Schmitt’s voluminous writings of the Nazi era, which are plainly anti-Semitic and seek ethnic homogeneity as a solution to the indeterminacy of liberal legality: Meier, Carl Schmitt and Leo Strauss, 7n5; Scheuerman, Carl Schmitt: The End of Law, 113ff. 36. See Dauvergne, C. 2004. Making People Illegal. In Critical Beings: Law, Nation, and the Global Subject, ed. P. Fitzpatrick and P. Tuitt. Aldershot, UK: Ashgate, 83–99; Kneebone, S. 2004. The Rights of Strangers: Refugees, Citizenship and Nationality. Australian Journal of Human Rights 10:33–59. 37. Marr and Wilkinson, Dark Victory, 194–370 passim. Howard’s own comments in November 2001 tying the asylum seekers to terrorists. 38. Ibid., 180. 39. Ibid., 369; Watson, D. 2002. Recollections of a Bleeding Heart: A Portrait of Paul Keating PM. Milsons Point New South Wales: Vintage, 712–13. See Australian Labor Party MP Duncan Kerr’s earlier invocation of dog-whistle politics: Commonwealth of Australia, Parliamentary Debates, House of Representatives, Official Hansard, December 3, 1996, p. 7571. The latest iteration of this debate has been the government’s support for a test of new citizens’ adherence to Australian values: Metherell, M., and T. Dick. 2006. New Citizens Face Test on 200 Questions. Sydney Morning Herald, December 12, http://www .smh.com .au/news/national/new-citizens-face-test-on-200-questions/2006/12/11/ 1165685615942.html; Ramsey, A. 2006. Whistling Down the Wind on Values. Sydney Morning Herald, November 4, http://www.smh.com .au/news/alan-ramsey/ whistling-down-the-wind-on-values/2006/11/03/1162340055938.html? page=3. Other events reinforce the impression that the whistles were finding a responsive audience. To take one example that became prominent in the Tampa aftermath, in December 2002 Baulkham Hills Shire Council rejected an application to construct a mosque in Annangrove, also within Alan Cadman’s electorate. It did so against the recommendation of its own officer, with the residents’ principal objection being that the mosque “had no connection to their community as it would be used by people from outside the area and would provide no service to their community.” New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) NSWLEC 154 revised—5/09/2003 (NSW Land and Environment Court), para. 24. The NSW Land and Environment Court overturned the council’s decision on the basis that residents’ fears, though real, had no rational basis. See Mosque Plan Rejection Sparks Racism Claim. 2002. Sydney Morning Herald, December 18, http://www.smh.com.au/articles/ 2002/12/18/1040174287441.html. See also the vitriolic language in which liberal MP Bronwyn Bishop has called for a ban on the hijab in public schools: Yaxley, L. 2005. Bronwyn Bishop Calls for Hijab Ban in Schools. ABC Local

86 Jeremy Webber

40.

41.

42.

43.

Radio, The World Today, August 29, http://www.abc.net.au/worldtoday/content/ 2005/s1448343.htm. See, for example, Agamben, G. 1998. Homo Sacer: Sovereign Power and Bare Life. Trans. D. Heller-Roazen. Stanford, CA: Stanford University Press; Jenkins, F. 2004. Bare Life: Asylum-Seekers, Australian Politics and Agamben’s Critique of Violence. Australian Journal of Human Rights 10:72–95; Rajaram, P. K., and C. Grundy-Warr. 2004. The Irregular Migrant as Homo Sacer: Migration and Detention in Australia, Malaysia, and Thailand. International Migration 42:33–64. Dauvergne, C. 2004. Sovereignty, Migration and the Rule of Law in Global Times. Modern Law Review 67:588–615; Dauvergne, C. 2005. Humanitarianism, Identity, and Nation: Migration Laws of Canada and Australia. Vancouver: University of Britosh Columbia Press. For representative arguments of the Bush administration, see Greenberg, K. J., and Dratel, J. L., eds. 2005. The Torture Papers: The Road to Abu Ghraib. New York: Cambridge University Press; U.S. Department of Justice. 2006. Legal Authorities Supporting the Activities of the National Security Agency Described by the President. January 19, http://www.fas.org/irp/nsa/doj011906.pdf; Mayer, J. 2006. The Hidden Power. The New Yorker, July 3, http://www.newyorker .com/printables/fact/060703fa_fact1. See also the works of the chief legal apologist for the administration’s policies: Yoo, J. 2005. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. Chicago: University of Chicago Press; Yoo, J. 2006. War by Other Means: An Insider’s Account of the War on Terror. New York: Atlantic Monthly Press. The U.S. Supreme Court has rejected the most far-reaching of the administration’s claims: Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 165 L.Ed. (2d) 723 (2006). Scheppele, Law in a Time of Emergency; Levinson, S. 2006. Preserving Constitutional Norms in Times of Permanent Emergencies. Constellations 13:59–73. At least two defenders of the Administration’s approach have been willing to invoke Schmitt with approval: Posner, E. A. and A. Vermeule 2007. Terror in the Balance: Security, Liberty, and the Courts. New York: Oxford University Press: 3839. In the United States there is an argument for a line of influence from Schmitt through the political philosopher Leo Strauss to the neo-conservatives who have had such an influence on the Bush Administration’s policies. See, for example: Drury, S. 1997. Leo Strauss and the American Right. New York: St. Martin’s; Norton, A. 2004. Leo Strauss and the Politics of American Empire. New Haven & London: Yale University Press. But I have not seen any evidence for the direct effect of the distinctively constitutional theories of Schmitt on Strauss. Strauss certainly shared Schmitt’s view that conflict was endemic to political life and that one had to determine one’s adversaries and oppose them. As I will show, that provides an important driver underlying Schmitt’s constitutional doctrines, but it is insufficient to establish an intellectual genealogy. See Zuckert, C. and Zuckert M. 2006. The Truth about Leo Strauss: Political Philosophy and American Democracy. Chicago and London: University of Chicago Press; Smith, S.B. 2006.

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44. 45.

46.

47. 48. 49. 50.

51.

52.

Reading Leo Strauss: Politics, Philosophy, Judaism. Chicago: University of Chicago Press: 61–62 and 196. See Lieven, A. 2004. America Right or Wrong: An Anatomy of American Nationalism. New York: Oxford University Press, especially chapter 3. Scheppele, K. 2007. The International State of Emergency: Challenges to Constitutionalism after September 11. Paper presented at the Victoria Colloquium on Political, Social, and Legal Theory, University of Victoria, January 26. This forms part of a book-length study currently under preparation by Scheppele. Scheppele argues that international law itself is being used for these ends, and it is true that recent developments in international law have furnished resources (Scheppele’s word) to executives that seek greater capacity for independent action. It seems inaccurate to treat this simply as a change to the content of international law, however, for a central outcome of this process is precisely to minimize legal control when security concerns are invoked. The developments do not just change the law; they seek to emancipate the executive from legal constraint. For examples, see the discussions in Winterton, Parliament, the Executive and the Governor-General, 95–101; Selway, B. 2003. All at Sea—Constitutional Assumptions and ‘The Executive Power of the Commonwealth. Federal Law Review 31:495–506. Scheppele, Law in a Time of Emergency, especially 1006ff. See Schmitt, C. 1986/1923. Political Romanticism. 2nd ed. Trans. G. Oakes. Cambridge MA: MIT Press, 116; Dyzenhaus, Legality and Legitimacy, 42ff. Ibid., 117. See, for example, Schmitt, The Concept of the Political, 101. Agreement at any price is possible only as agreement at the price of the meaning of human life, for such agreement is possible only when man abandons the task of raising the question regarding what is right, and when man abandons this question, he abandons his humanity. But when he asks the question of what is right in earnest, there arises (given ‘the inextricably problematic character’ of what this question is about) conflict, life-and-death conflict: by the seriousness of the question of what is right, the political—the division of the human race into foes and friends—is justified. McCormick, Carl Schmitt’s critique of liberalism, 241; Kennedy, Constitutional Failure, 131. Compare Yoo, Powers of War and Peace, 20: “The demands of the international system promote vesting the management of foreign affairs in a unitary, rational actor. The rational actor can identify threats, develop responses and evaluate costs and benefits, and seek to achieve the national strategic goals through value maximizing policies and actions. . . . While bureaucratic or political imperatives may distort policy, or domestic interest groups may at times overcome the national interest, a unitary rational actor remains an ideal to guide foreign policy.” See Marr and Wilkinson, Dark Victory, 115–31. Note that the concern with compromises imposed by the Senate is not confined to the right of Australian politics. Australian Labor Party Prime Minister

88 Jeremy Webber

53.

54.

55. 56.

57.

58.

59.

Paul Keating famously referred to the Senate as “unrepresentative swill”: Watson, Recollections of a bleeding heart, 271–72. The argument has a long pedigree in the United States, having been invoked by the supporters of Andrew Jackson: Wilentz, S. 2005. The Rise of American Democracy: Jefferson to Lincoln. New York: W. W. Norton, 399. Schmitt relied on this argument in his support for presidential power in Weimar Germany: Dyzenhaus, Legality and Legitimacy, 77; Kennedy, Constitutional Failure, 161. John McMillan, for example, has argued that the courts should not have intervened in the Tampa crisis because “the nature of the action, its setting and timing, the difficulty of fashioning a remedy and the plaintiffs’ position” conspired to make the matter nonjusticiable “in the sense that it was impractical and inappropriate at that stage for a court to exercise jurisdiction.” McMillan, J. 2002. The Justiciability of the Government’s Tampa Actions. Public Law Review 13 (2): 89–93. In discussing whether judicial review is valuable in order to ensure executive compliance with the rule of law (93), McMillan treats the issue as one exclusively of courts against the executive, does not mention the courts’ role in ensuring that the executive complies with legislation, and suggests that in the Tampa incident, executive accountability “par excellence” was achieved through international negotiations and public media (especially talkback radio)—with no mention of parliament. The focus of democratic legitimacy on the executive and the plebiscitary nature of that legitimacy are clear. Ruddock v Vadarlis (2001) FCA 1329, para. 192. The commentator is Winterton. 2003. The Limits and Use of Executive Power by Government, 431. See Waldron, J. 1999. Law and Disagreement. New York: Oxford University Press, especially ch. 8; Webber, J. 2006a. Democratic Decision Making as the First Principle of Contemporary Constitutionalism. In The Least Examined Branch: The Role of Legislatures in the Constitutional State, ed. R. W. Bauman and T. Kahana. New York: Cambridge University Press, 411–30. There are ways of blending the benefits of democratic participation and adjudicative scrutiny: Webber, J. 2006b. A Modest (but Robust) Defence of Statutory Bills of Rights. In Human Rights Without a Bill of Rights: Institutional Performance and Reform in Australia, ed. T. Campbell, J. Goldsworthy, and A. Stone. Aldershot, UK: Ashgate, 263–87. Webber. 2006a. Democratic Decision Making. On this matter Schmitt takes a very different approach. His constitutional theory seeks above all to preserve the notion of a people standing outside the constitution, unorganized, persisting in parallel to the formal institutions and acting directly: Dyzenhaus, Legality and Legitimacy, 53; Kennedy, Constitutional Failure, especially 131–37. This raises directly the prospect of usurpation, about which Schmitt appears untroubled. See, for example, the locus classicus for the rule of law in the common-law tradition: Dicey, A. V. 1959. Introduction to the Study of the Law of the Constitution. 10th ed. Ed. E. C. S. Wade. London: Macmillan. Sands, P. 2006. Lawless World: Making and Breaking Global Rules. London: Penguin.

National Sovereignty, Migration, and the Tenuous Hold of Legality 89 60. Face the Nation. 2003. Interview with Donald Rumsfeld. March 23, http://www.cbsnews.com/stories/2003/03/23/ftn/main545616.shtml; Ibid., 173; Hamdan v. Rumsfeld, 165 L.Ed. (2d) 723 (2006). 61. Scheppele, Law in a Time of Emergency, 1060ff. 62. Rummery, Australia grants visa to Iraqi man held on Pacific island for five years. 63. Holmes, S. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press, 113ff. 64. Schmitt did acknowledge the value of the jus publicum europaeum produced by the rough balance of power among European states in the decades prior to World War I, as a means of permitting autonomous national communities to coexist without ruinous war or the imposition of a single worldview. In Schmitt’s account, however, international order was and should be entirely subordinated to the unequal power of the various states-parties, the jus publicum europaeum served principally to permit the coexistence of absolutely sovereign states, and that order enabled the continued strife that was (as Koskenniemi has persuasively argued) essential to Schmitt’s eschatological Christian worldview. See Koskenniemi, M. 2004. International Law as Political Theology: How to Read Nomos der Erde? Constellations 11:492–511; Meier, Carl Schmitt & Leo Strauss, 39ff. 65. By “shared,” I do not mean that parties accept the norms as right but rather that they acknowledge those norms to be the community’s law. I accept, then, a distinction between what we would like to be law and what the law is in a particular community. This sounds like a positivist theory of law, and indeed it does incorporate the most compelling feature of legal positivism. But my understanding of law does not have the ironclad dependence on pedigree and linguistic selfsufficiency common in positivist theories. The conception of law expressed here is much closer to that of Lon Fuller. See Webber, J. 2006. Naturalism and Agency in the Living Law. Presented at “Living Law: Rediscovering Eugen Ehrlich,” International Institute for the Sociology of Law, Onati, Spain, May 4–5, to appear in the volume resulting from that workshop. 66. For the analogous development of norms between colonists and Aboriginal peoples in North America, see Webber, J. 1995. Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples. Osgoode Hall Law Journal 33:623–60. 67. Scheppele, Law in a Time of Emergency. 68. Ben Saul notes “the extraordinary prominence of legal justifications for the use of force in the public debates preceding its use” in Saul, B. 2003. The Legality of the Use of Force Against Iraq in 2003: Did the Coalition Defend or Defy the United Nations? UCLA Journal of International Law & Foreign Affairs 8:267–70. See also Sands, Lawless world, 154ff and 211ff; and, for the argument in Australia over the legality of the Iraq invasion, Charlesworth, et. al. No Country is an Island, 9–17. 69. For the legal positions adopted by the Bush administration, see note 41. 70. This argument is very close, then, to the notion of relational autonomy developed by Jennifer Nedelsky over a series of articles: Nedelsky, J. 1989.

90 Jeremy Webber Reconceiving Autonomy: Sources, Thoughts and Possibilities. Yale Journal of Law and Feminism 1:7–36. 71. Judicial review of administrative action is sometimes criticized on the grounds that the standards it enforces are the result of judicial creativity rather than a fair interpretation of the legislature’s intent. This can happen, and when it does, the argument presented here no longer applies (or at least it would have to be significantly recast). But we should not confuse judicial restraint with complete abstention. One still needs mechanisms for ensuring that executive action remains within the framework established by the legislature; and in that regard, judicial review, exercised with due restraint, serves a crucial role. 72. Rummery, Australia grants visa to Iraqi man held on Pacific island for five years. 73. 542 U.S. 507 (2004).

CHAPTER 4

Borders in Public Perception Renationalizing Modes of Inclusion and Exclusion Oliver Schmidtke

Introduction

O

nce taken for granted as the spatial-territorial reference for modern politics and citizenship regimes, national borders have become contested. In the 1990s, scholarship in various disciplinary fields widely suggested that the permeability of borders has intensified to a degree that their role in politics and society has been substantially transformed. International relations scholars consistently pointed to the declining power of the nation-state and its capacity to act as the undisputed sovereign within its territory.1 In particular with respect to the economy and financial markets, the sovereign authority of national governments and their policies seemed to face severe restrictions in light of new forms of transnational powers. Similarly, migration and the control over national borders have become important issues in the popularized debate on the effects of globalization on national regimes.2 Yet in spite of the initial excitement about the process of denationalization and the alleged “end of the nation-state,”3 scholarly debates have become far more cautious about the structural implications of crossnational mobility. In a nutshell, the nation-state shows a surprising resilience in shaping politics and forms of governance, be it in the shockwaves that the terrorist attacks sent through the Western world4 or more generally, in what seems to be a pertinent lack of functional alternatives for borders as a mode of sociopolitical inclusion and exclusion. The internationalization of the political and economic sphere has also been accompanied by a cultural transformation of the popular-symbolic meaning assigned to national borders: the

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challenge to the hitherto taken-for-granted quality of national borders lies, essentially, in deconstructing the myth of the congruence of a certain territory and an ethnically or culturally identifiable nation. The upsurge in crossborder mobility alludes to an important general point, namely, the growing incongruence of societal life on the one hand and a nationally defined political domain on the other. The degree of cross-border migration, the extent of communication, and cultural consumption and interaction beyond the confines of national territories question the rationale of a world neatly divided into exclusive political communities.5 Along the same vein, research on immigration has forcefully pointed to the transnational character that shapes the social practice and self-perception of increasingly important groups of migrants. Their practices have fundamentally challenged our established sense of borders and loyalties to nationally distinct communities. The growing ethnic-cultural plurality of modern societies questions the very myth of national homogeneity and exclusiveness.6 But here again the effects of this transformation are far from evident: to which degree do we have reliable empirical data to understand the scope and meaning of the challenges to national identity? Standard survey data on forms of identification with the nation-state and competing territorial-political entities have severe limitations in terms of what they actually measure.7 One recurrent theme that we find in such studies, however, is the huge divide between the attitudes of well-educated elites on the one hand and popular sentiments on the other. While the former show distinct loyalties toward forms of cultural and political belonging at the sub- and supranational level, the latter are still widely attached to a primary allegiance to the nation(-state). Beyond the sheer magnitude of the phenomenon, it is worth investigating in greater detail the declining relevance of national borders and identities as the symbolic demarcation of the political community. Are we heading toward an age of multiple, hyphenated identities among which national ones no longer play a supreme role? Do patterns of nationhood and identity as symbolic boundary markers develop into folkloristic features, paving the way toward collective identities without substantial weight in politics? Do they still matter in terms of defining primary allegiances to the collective, or do they become a matter of lifestyle choices?8 Europe can be seen as an exemplary case in the dissolution, or at the very least, the radical redefinition of national borders.9 Reflecting the reality of increasingly transnationalized processes and challenges in all major policy areas, politics and policy making in the European Union (EU) transcend national borders to an ever-expanding degree. With its transformation into a political union, the EU has gradually taken over legislative competence in areas formerly reserved to the sovereign nation-states. The sense of who can

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be considered a member, and who an alien, within one’s own community gradually shifts from the national domain to the external borders of the EU. Also, in the daily practice of citizens, national frontiers have lost much of their prominence in social life: traveling from one Schengen member state10 to the other rarely involves using one’s passport; while taking up employment for EU citizenship in the member states is widely independent from citizenship status. Growing numbers of people in Europe work and live in different national contexts; transnational practices in the fields of economy, culture, and politics have by far moved beyond a small elitist jet-set community.11 Furthermore, and since very recently, even currency is no longer a clear marker of national borders. In the following, Germany will be discussed as an exemplary case of a national community whose borders can no longer claim, as a matter of principle, a quasinatural authority for demarcating a community of citizens, stipulating their rights and duties, and excluding those who are deemed to be alien. After a conceptual reflection on patterns of social inclusion in modern citizenship regimes, the chapter focuses in its empirical part on the representation of borders in public discourse and an analysis of the meaning attributed to them. In order to reconstruct the most important elements of public discourse in this respect, I consider the framing of the issue of immigrants and national identity in the print media and in political elite discourse. In the concluding section, additional general reflections about the structural reasons for the prominence of national borders in today’s world are developed. The Crisis of the Paradigm of (National) Inclusion in Modern Societies Historically, intellectual and political elites have sought to legitimate the nation by reference to a peculiar ethnic or cultural tradition that allegedly makes the members of a community fundamentally different from others. National borders demarcate the territorial realm and thus the identity of the political community in which a legal bond between citizens and the state could be established. In this perspective, the nation-state is the functional prerequisite for politics in modern liberal democracies. Internally, national citizenship regimes have historically been based on a fragile equilibrium of duties and rights in regulating the relationship between individuals and the political community whose members they comprise. The nation-state guarantees a certain degree of personal liberty and social well-being for a clearly assigned constituency. The citizens in return accept nationally defined and democratically controlled politics as the agency that has the power to generate collectively binding decisions. Individual rights and entitlements on

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the one hand and political loyalty with respect to the political community on the other are the key elements in generating mutual trust, loyalty, and political stability. Beyond this “rational” base for the nation-state, there is an additional pivotal element that is crucial in attributing stability and legitimacy to national citizenship regimes, particularly in the European version of the nation-state. This is a “pre-political” sense of belonging that is ethnically or culturally defined, and provides a supposedly unquestionable reference point in stipulating who can legitimately claim to be part of the community and who cannot.12 Both dimensions, however, can be described as being strongly linked. The “common denominator” can be interpreted as the prepolitical base on which notions of equality and solidarity were built, a common consensus that the state needed for performing its function with sufficiently strong support by the ruled. The underlying rationale of the European nation-state has been rooted in both a functional arrangement for (in the Weberian sense) rational administrative practices of the state on the one hand and a cultural sense of belonging and collective identity on the other. The functional and identity aspects are closely intertwined in the historic role of the nation-state: stipulating and ensuring duties and rights of citizens was dependent on a particular mode of social and political integration into a community, by a binding collective identity strong enough to generate political loyalty, and by conformity with the rules stipulated by the community.13 With respect to the latter, citizenship regimes are dependent on a continuous process of boundary construction as a means of including members and excluding others. The underlying sense of nationhood provides the psychological “glue” that secures the attachment of individuals to the community and allows the discrimination of “others.”14 Moreover, it embodies the “metanarrative” of the nation-state that—at least at an ideological level—allows for communal integration on the basis of universal principles. By drawing the line between inside and outside, the nation-state could develop the notion of egalitarian membership. The more unique and culturally (and ethnically) distinct the community was depicted, the more its members could be convinced to remain part of a sacred community—in the spirit of which every member would concur equally.15 The citizenship regimes in the European tradition are thus characterized by deep ambivalence regarding their basic normative claims: a strict form of social closure with respect to its outer boundaries mirrors the universalistic and egalitarian inclusion into the national community. From an early stage, migrants have been portrayed as a genuine threat to the integrity of citizenship regimes.16 They were seen as questioning the boundaries of community and the very logic according to which membership is defined and inclusion-exclusion is regulated. Given the historic background

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of the nation-state building process in Europe, these identity markers establish, compared to more modern immigration societies, severe barriers to the naturalization of newcomers and a political ground to exclude foreigners.17 Historically this has led to the peculiar mix of universalistic inclusions and parochial community building that has shaped the nation-building process from the onset. Fabricating a national imaginary of a bond between citizens helped to eradicate local difference and privileges. The loyalty to a community transcending the borders of the local society, based on face-to-face association and kinship bonds, was the functional prerequisite for institutionalizing new citizenship rules. Setting the boundaries between national units seemed to be the social requirement for allowing a sense of solidarity and equality to become the organizing principle of the national community. Modern societies are based largely on the notion of a comprehensive (political, social, and cultural) inclusion of its citizens into a system of expanding rights. The gradual expansion of suffrage, the provision of welfare state services, and the broadening of education to classes formerly excluded from them are the most prominent examples of how inclusion into a rights-based citizenship regime provided a fundamental base for social and political integration throughout the twentieth century. In this respect, modern European societies have been built on the Marshallian notion of citizenship as a universalistic device for the extension of social and political rights.18 This can be characterized as the “paradigm of inclusion” and the guiding principle for generating a lasting class compromise and including those marginalized in society through an ever-expanding set of rights. It is exactly this paradigm of inclusion that becomes questionable when national borders, and the communities they delineate, lose their uncontested status. This crisis manifests itself as a questioning of the fundamentally universalistic character of these citizenship regimes, while these regimes increasingly exclude people on a basis that, in its reliance on national borders, has come to be seen as morally arbitrary.19 Germany and the Remodeling of its Citizenship Regime The recent change of the citizenship law and the attempt to introduce a modern immigration law in Germany are pertinent examples of how established modes of social inclusion and exclusion have been renegotiated. One of the crucial motivations to substantially revise the old law was to bring it into harmony with a social reality that is decisively different from the one that existed when the Citizenship Law was drafted in 1913. This law was based on a strong primordial definition of membership (ius sanguinis), a “thick” ethnonational foundation designed to provide a common denominator for

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German communities located beyond the territorial boundaries of the nation-state at the time. A critical consequence of this principle of descent was that until recently, Germany had one of the lowest relative rates of naturalization in Europe, in spite of the fact that it attracts one of the highest numbers of immigrants. Many of those who arrived as “guest workers” in the 1960s and early 1970s, as well as their children, still do not have German citizenship, although they are solidly integrated into the labor market and generally in German society as a whole. Many of the 1960s guest workers have enjoyed a protected membership status, yet without becoming full citizens.20 As a result of their status as members, but not citizens, they enjoy social inclusion as permanent residents, but not in terms of full state protection and rights to political participation. Until the late 1990s, Germany’s political leaders were determined to stick to the principle that Germany “is no immigrant country” and thus does not need a new legal basis for the integration of “foreigners.”21 Yet with sustained high numbers of people seeking to migrate to Germany, and with the grisly experience of right-wing, xenophobic attacks that upset the German public in the 1990s, a new citizenship law quickly became one of the critical issues of the government under Chancellor Gerhard Schröder (1998–2005). The key goal of this new law is to provide an environment in which institutionalized forms of social exclusion of immigrants can be overcome and a more promising path toward their integration into German society laid out. One of the crucial goals in this respect is to facilitate and accelerate the naturalization process of immigrants. This serves to put an end to a situation in which immigrants can live in Germany for generations without obtaining full citizenship status, relegated to the status of denizens.22 Next to bringing German citizenship law into line with the dominant standards in Western Europe, the guiding idea was to improve processes of social integration by redefining the standards of membership and by replacing an entirely blood-related principle with a principle based more on territory (ius soli).23 To an important extent, the political elite in Germany came to view the German Reichs- und Staatsangehörigkeitsgesetz (Citizenship Law) from 1913 as outdated and out of touch with the new realities in Europe.24 Regardless of the actual achievements in terms of modernizing Germany’s Citizenship Law and providing a more promising base for integrating its immigrants, this change in legal provisions challenges the fundamental rationale on which the symbolic border line between a member and alien has been drawn. Political and public debates provide evidence of how this challenge to the myth of national homogeneity and exclusiveness has not gone unnoticed. Investigating these discourses should give us some answers as to how the role of borders and their main purpose to regulate inclusion and exclusion are

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reevaluated in light of the challenges of the internationalized environment in which they are expected to operate. The following investigation into how related issues of immigration and national identity have been framed in public discourse will give us a better sense of how Germany reacted to questioning the unquestioned legitimacy of its national borders. Representational Practice: Framing the Issue in Public Discourse Beyond the debate within a small intellectual elite, how is the issue of borders and migrants addressed in broader public discourse? As stated in the introduction, I assume that, in symbolically demarcating collective identity and difference to the outsider, borders need to be reproduced within discursive practices and rituals to remain credible. In the following, I give a synoptic account of the dominant ways in which these issues are discussed and framed in public discourse—both in the print media and in the discourse of the political elite. Media Discourse The following figure gives a rough overview of the media discourse on immigrants in Germany. It identifies dominant types of discourse and the competing framing strategies employed in them. One of the core goals of this research was to distinguish narratives that shape public discourse with respect to different immigrant groups in German society. A frame-analytical approach has been taken in the study of media coverage in the late 1990s and early 2000s in Germany.25 This method relates back to a concept introduced by Goffman (1980) and has been set forth and successfully applied in media discourse analysis by William Gamson and Andre Modigliani (1989) and Gamson and Kathryn Lash (1990). Frame analysis focuses not only on the number and variety of rational arguments in a news article. The method also goes beyond the obvious implications of the rational argument by identifying the symbolic and narrative elements used for constructing news in media discourse. The following table categorizes news articles according to the type of discourse (their main subject matter) and competing framing strategies. With the help of a qualitative text analysis, a group of researchers identified these framing devices and their underlying narrative structures. If one first looks at the type of discourse, it is striking to see that those articles that talk about issues related to “cultural identity” clearly do not take center stage in the media discourse at this time. Also, after September 11, 2001, the reflection on the role of cultural, ethnic, and religious identities is still not

98 Oliver Schmidtke Table 4.1 Overview of the discourse on immigrants in German print media26 Competing frames

Normative priority

Borders are not an Universalistic 119 articles, National belonging should effective or desirable values 695 text tool to exclude not play the units Human individuals from decisive role in rights rights defining individuals’ rights

Social order

Number of occurrences

Role of borders Main framing (rules of inclusion device/narrations and exclusion)

Type of discourse

Particularistic 86 articles, values 349 text units

German citizens need to be given priority in terms of basic rights

Borders indispensable to make rights-based citizenship regime work

Need for active integration

70 articles, 413 text units

Attempts to integrate immigrants into mainstream German society need to be strengthened

Nationality and borders are not the problem

Law and order

239 articles, Immigrants are the source of 1286 text crime and social units disorder

Borders indispensable to protect Germany from crime and social disintegration

122 articles, Germany needs immigration for 541 text its labor market units and social systems

Rigidity of borders need to be reconsidered to attract immigrant workers

Immigrants threaten to undermine the social consensus by accepting low paid labor and poor working conditions

Borders need to be strengthened to protect social achievements

Distribution Positive of resources impact on German society Negative impact on German society

69 articles, 344 text units

Borders in Public Perception 99 Table 4.1 (continued) Competing frames

Cultural identitys

Multiculturalism 122 articles, Germany needs immigration for 541 text its labor market units and social systems National homogeneity

Number of occurrences

Role of borders Main framing (rules of inclusion device/narrations and exclusion)

Type of discourse

58 articles, 215 text units

German national identity is in jeopardy with serious effects for social integration

Borders need to be reconsidered to allow for more cultural and ethnic plurality Strictly enforced borders required to protect sense of a strong national identity

of great prominence (this might be surprising for those who see an emerging “clash of civilizations” unfold in contemporary Western societies). Rather, issues related to social order, the distribution of resources, and the normative dimension of immigrants’ legal-social status play a much more distinct role. Not being able to go into the details of the competing frames and their meaning in the political debate on issues of immigration and integration, I will spell out some of the most important aspects relevant for the context of this article. First of all, we see an ambivalence similar to that in the abovedescribed scholarly debate: on the one hand, there is an acknowledgement of the basic normative problem pertinent in national citizenship regimes, namely, that national borders have in many respects outlived their role of providing a feasible and normatively desirable manner of inclusion and exclusion; the liberal paradox has become an important feature of public debate. The sheer distribution of articles and the emphasis on universalistic-humanitarian rights regardless of membership in a national community reflect this basic normative consideration. There seems to be a strong tendency in the print media to downplay national allegiance when stipulating the rules for individual entitlements. Yet while many articles are based on the narrative that national borders are an anachronism in the effort to regulate the distribution of rights to individuals, borders are also often seen as unavoidable in order to defend entitlements, privileges, and in a more dramatic fashion, the existence of the social and political system itself.

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One of the more general observations that can be made in this respect is that the different types of discourse follow quite distinct and sometimes seemingly incompatible narrative scripts. What is remarkable here is the degree to which the persistence in protecting national identity and borders is radically disconnected from pragmatic concerns (for instance, the perceived effects of immigrants). For example, media discourse, particularly in the more liberal press, puts considerable emphasis on the desirability of immigrants in light of Germany’s aging society. As far as interest-based arguments are concerned, the main thrust of the framing encourages questioning rigid forms of exclusion based on nationality. Pragmatic concerns regarding the perceived social and economic impact provide the dominant narrative script in this type of practical, interest-oriented discourse. This discourse has informed the recent debate on a new immigration law and the need to open the labor market in Germany, at least for highly qualified migrants.27 On the other hand, there is a competing discourse emphasizing the cultural-identity distinctiveness of the national community and the alleged legitimacy of exclusion on the basis of national membership. Belonging to the national community is here interpreted as the prior and superior determinant of political and social rights. Accordingly, borders are portrayed as the exclusive social condition in stipulating rules of membership. This refers to two dimensions: first, under the rubric of interest-driven discourse, borders are portrayed as being critical for protecting the social-economic well-being of citizens (welfare state, income levels, etc.). Second, under more culturalist auspices, borders are depicted as guardians of the identity and traditional life of the community. In particular, this latter aspect underlines the considerable prominence of framing devices that place emphasis on the idea of national homogeneity and the form of social closure that it establishes. Some aspects are of particular importance for the context of our discussion. First, one very forceful and recurring way of framing the issue of migrant groups and borders is to suggest a strong causal link between the presence of immigrants and endemic problems of modern Western societies. Most prominently, the issues of social order and criminality form an important narrative context in which immigrants or “foreigners” become the subject of public discourse. Here it is instructive to see that this issue is not often framed in terms of controlling crime or finding a desirable approach to conflicts of interest over rare resources. Rather, the repetitive framing practice in print media suggests that social problems are attributed to specific migrant communities or ethnic groups. In this context, borders take on the role of a symbolic divide between the rational, ordered, and peaceful on the inside, and chaos, crime, and disintegration on the outside. Borders are more than

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simply boundary markers for social and political processes; they take on an ontological status, designating the political beyond in which chaos and disintegration lurk. In the same vein, borders become part of a stigmatizing narrative that portrays the “other” in highly negative if not outright threatening terms.28 In this latter respect, discourses on social order or interest-driven conflicts can easily become “ethicized” and thus shaped by a difference determined by culture or ethnicity. Second, under the last rubric of types of discourse, there is the entry “cultural identity.” Coded with the heading “national homogeneity” is a series of articles addressing strong concerns regarding the alleged collapse of a robust sense of national identity and related patterns of social integration. Here, borders are seen as ideational resources that identify and define the community and establish patterns of belonging to a collectivity. Analyzing the articles under this category in more detail would reveal that the discourse on identity and belonging is radically detached from the interest-based discourse on the perceived risks and benefits of immigration. The idea that borders safeguard the collective identity rather than concern over the social and political ramifications of redefining those borders guide the narrative here. What is at stake, according to this type of framing, is the perceived threat to the national imaginary. In this perspective, protecting the borders of the national community (and thus establishing a clear sense of one’s own identity) is interpreted as the essence of defending the integrity of the nation. The Discourse of the Political Elite Although German society has been critically shaped by the influx of immigrants since the 1960s, the issues of citizenship, immigration, and nationhood did not play a prominent role in political discourse in Germany until very recently. This can be widely attributed to the fact that there used to be a consensus among all major parties that immigration was not an issue that was critical to German society; this issue was dealt with in terms of accommodating “foreigners” and “guest workers.” In particular, the liberal-conservative government under Helmut Kohl insisted on the idea that Germany was simply “not a country of immigration.” Throughout the 1990s, however, with a massive influx of asylum seekers and war refugees from former Yugoslavia, this changed dramatically. Now the problem was perceived in terms that are at the heart of how Germany, in light of its cultural-ethnic plurality, defines itself as a national community. The initiatives taken by the Schröder government still continue to set the agenda for the present governing grant coalition.

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The discourse of the political elite is characterized by two main themes that seem almost detached in the way they are employed in public debate. The first one is rooted in a rational reflection on the projected benefits and costs involved in attracting immigrants to Germany. The aging German society, the crisis of the social security system, and the need for qualified labor provide the thematic context in which this issue is discussed. Interestingly, there seems to be a convergence in the positions of the mainstream parties, regardless of the traditional partisan divide. Even the conservative Christian Democrats have acknowledged the need for controlled immigration and have contributed to drafting legislation in this field. Given the prevalence of rather pragmatic concerns, the political elite has agreed to make some major concessions on how national borders define patterns of inclusion in and exclusion from German society. The rules for foreigners enshrined in the old Citizenship Law have been made considerably more flexible with respect to the processes of naturalization of foreigners, work permits for non-nationals, and dual-citizenship status. In essence, borders are widely perceived to be outmoded, overly rigid tools to stipulate rules of inclusion and exclusion. Yet at the same time, the issues of immigration and national identity have been employed in competitive party politics in recent years. One exemplary campaign in this respect was the discussion on the possibility of dual citizenship and the following debate on the Deutsche Leitkultur (German guiding or hegemonic culture). In its attempt to deal with its devastating loss in the 1998 general election and in addressing its internal leadership crisis, the Christian Democratic Party (CDU) decided to use the issue of immigration and national identity to mobilize political support. Its first initiative was to call (and partly organize) a referendum on the question of dual citizenship. In stark contrast to this party’s willingness to be involved in modernizing Germany’s Citizenship Law, the conservative party engaged in a campaign designed to discredit any attempt to call into question features of loyalty to, and identification with, the national community. National borders were portrayed as demarcating the fundamental allegiance of individuals to their collectivity. By depicting (excessive numbers of ) immigrants as a genuine threat to German society and employing strong nationalist sentiments, the CDU was able to achieve an unexpected victory in regional elections. This shifted the focus of public debate decisively from pragmatic concerns over the desirable form of immigration to a controversial discussion of the alleged vulnerability and integrity of the national community. As became manifest in the deliberation on the new Immigration Law, images of a national identity under scrutiny and fears of societal disintegration as the likely effects of immigration were deliberately used for strategic purposes.29 This issue has

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remained a critical resource in competitive party politics and is mobilized periodically in highly controversial debates. It is not surprising that, after some polemic remarks from local politicians, the controversial debate over dual citizenship turned into a discussion about what it actually means to be German. What until recently seemed to be indisputable suddenly became the subject of a heated public debate—namely, the legitimate borders of the political community, modes of inclusion and exclusion, and the status of non-nationals. This is an indication of the degree to which borders have become reflexive and no longer taken for granted. The public debate centered on the question of whether there was any cultural denominator or national culture that could define German national identity and thus provide a legitimating rationale for reproducing national borders. Here again the issue of borders focused on, far from a rights-based approach, patterns of national identity and a prepolitical sense of belonging to the community. A similar narrative structure can be detected with respect to the European challenge to national borders and the parliamentary debates on immigration and asylum in recent years. This is not the place, however, to present a detailed analysis of a study of public and elite discourse on this topic. In a nutshell, one can say that both the parliamentary debates and the programmatic approaches of the main parties are characterized by a deep ambivalence regarding the issue of immigration and asylum and Germany’s role in Europe in this respect. On the one hand, print media and politicians from the center right show a distinct preference in line with the rationale of the primordial base of Germany’s citizenship provisions. On this basis, there is a deep-rooted perception that loyalty to one’s national community is indivisible (here the highly controversial debate about dual citizenship is a vivid illustration) and that any legislation is a matter of utmost concern for the sake of national sovereignty. In the same vein, immigrants and asylum seekers are depicted as a genuine threat to the integrity of indigenous political community and an issue of primary concern for the nation-state. On the other hand, however, there is the forceful acknowledgment (primarily, albeit by no means exclusively, by representatives of the center left) that Germany has to accept more fully dominant rules and norms prevalent at the European level. The twentieth-century historic legacy shaping the collective memory of this nation, along with that of Europe, provides a realistic opportunity to challenge the historically difficult principle of nationalism in Germany and put considerable pressure on German politics to reconsider basic provisions of the Citizenship Law. The commitment to the ideal of European integration operates as a powerful normative script measured against “national interests” that are perceived as secondary in importance.

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Recurrently in parliamentary debate, those in favor of modernizing the Citizenship Law use Europe as a discursive device to accuse their opponents of sticking to an obsolete and politically dangerous national principle. In summary, elite and media discourse are critically shaped by accepting the need to change basic provisions of national citizenship and basic provisions to downplay the categorically divisive character of national boundaries. Yet at the same time, and in stark contrast to the rational debate on the desirability of giving up sovereignty and changing patterns of immigration or naturalization, there remains a strong discourse on ethnic-cultural difference. While the first way of framing the issue has the tendency to generate a pragmatic and rather inclusive approach to national borders and citizenship rights, the second type of discourse emphasizes the categorical (that is, cultural or ethnic) difference between members and aliens. Conclusions: The Perplexing Salience of National Borders Borders are not on the verge of becoming irrelevant in terms of how political communities are organized and citizenship regimes governed. They still provide the basic rationale for inclusion and exclusion, determining the eligibility of rights. Still, national borders can no longer claim the uncontested status they once enjoyed. Borders have become a discursively contested field, with meaning attributed to them in various and often competing ways. This fight over borders and legitimate modes of inclusion and exclusion leaves us with a somewhat puzzling finding. Given the surprising insistence of the nationstate as the regulative idea of politics, one is geared to formulate a set of questions emerging from the following statement by Shapiro: “It remains unclear if the age of nationalism is near an end, not one of its primary legacies remains well entrenched. The story of a unified national culture, designated to legitimate the ethnic and spatial boundary policing of the modern state, retains its force. As a result, contemporary “strangers in the land” are constructed as threats to legendary and anachronistic national imaginaries.”30 What are the underlying reasons for perpetuating the belief in a national “collectivity of fate” if the social, economic, and political base for the nation’s claim to act as a sovereign within its borders is increasingly undermined by social reality? Is it simply the genuinely European idea of the nation-state as the manifestation and guarantor of an intrinsic national culture or ethnicity that hinders any move toward a reevaluation of national borders? A first interpretation of this puzzle can be formulated at a rather high level of abstraction referring to modernization theory: borders can lose their selfevident and uncontested character and thus give way to a need for the political community to assure itself of its identity. As a result, the hitherto

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taken-for-granted prepolitical community becomes subject to deliberation and a symbolic reaffirmation of how borders are defined and how modes of inclusion and exclusion are regulated. Here, the structural process of denationalization might have a surprising effect. As the meaning of the nation as a symbolic device used to differentiate between members and aliens becomes questionable, and as the notion of a national community characterized by distinct cultural or ethnic patterns of identification loses what Pierre Bourdieu calls doxa31 (the exclusive way to see the world), the more societies engage in reifying the identity and boundaries of this community. In this respect, the affirmation of borders can be read as one of the paradoxes of modernity. In the wake of reflexive modernization, basic principles of modernity are being either dissolved or transformed—most prominently, the nation-state becomes a “container model” of society. This generates an endemic uncertainty and a new plea for unambiguous and unmistakable patterns of orientation. Borders lose their traditional authority as establishing a legitimate dividing line between members and aliens, but at the same time, their permeability creates the societal need for certainty (in terms of differentiating between members and aliens, the identity of the national community, etc.). Another line of interpretation that emerges from the discussion of public discourse alludes to the perceived institutional void when it comes to imagining political communities above and beyond the national level. Here, the assumption of a lack of any credible institutional alternatives to national forms of political communities and guardians of citizens’ rights is widely shared both in scholarly and public debate. In this respect, European nationstates are thought to face a challenging situation: their regulative capacity to represent a clearly demarcated citizenry is externally and internally disputed; alternative forms of political communities are only very slowly emerging (at the sub- and supranational level). Presently, there does not seem to be a credible alternative institutional framework that could fulfill the traditional functions of nationally embedded citizenship regimes. It is significant, however, how the issue of borders is addressed in public discourse. There is a clear tendency to translate this alleged lack of a feasible alternative political community into an ethical and quasiontological status of the nation. A more thorough critical analysis of the scholarly and public debate would reveal to which extent our established concepts are based on a categorically presented idea of the nation-state as the exclusive container for society and politics.32 Distinct from pragmatic concerns over conflicts of interests or functional needs of citizenship regimes, national borders are repeatedly employed as the quintessential identity of the political community. This reasoning uses a variant of the Hobbesian idea of the anarchic

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world of lawlessness as a template for excluding any idea about similarly legitimate forms of political community above and beyond the nation-state. The focus of the debate repeatedly shifts from an in-depth discussion of the feasibility of such alternatives to reifying the national community in an ahistorical fashion as the only legitimate reference point. One indication of this is that the discourse on the economic and social desirability of immigrants is largely detached from concerns over the loss of national identity for the integration of the political community. In this respect, the empirical hypothesis regarding the irreplaceable character of the national community runs the risk of turning into a self-fulfilling prophecy. This perspective is echoed in public discourse articulated in German print media. While the media questions the normative rationale of national borders in the age of denationalization, there is a strong tendency to reify national political communities as the only feasible and desirable way of defining membership and entitlements. National borders provide a form of social closure that is presented as a superior reference point in determining common interests and protecting a shared collective identity. This discourse on the fundamental status of national borders is widely detached from the pragmatic and interest-driven discussion on the need for immigration and the alleged need of borders for nationally organized citizenship regimes. Consistently, borders are attributed an almost ontological quality in terms of providing the social conditions for security, certainty, and identity of the political community. Politically, the frustration with the complexity of modern, globalized life and politics can easily lead to a nationalist backlash. It is with respect to the seducing simplicity offered by the nationalist argument—the suggestive binary coding it establishes between members and aliens—that the symbolic power of borders is underestimated. The complexity of issues at stake in questioning the exclusiveness of national community can, for political purposes, easily be attacked by recourse to the allegedly superior and self-evident national community. National community still provides the most forceful narrative of defining identities, interests, and individual entitlements. The reference to the national community is so deeply engrained into our narrative of the political (rights, obligations) that borders acquire almost an ethical quality.33 In spite of the alleged weakening of national identities, borders remain strong, symbolic boundary markers and modes of establishing membership. These findings can also be interpreted with a view to the broader transformation of contemporary society: while they are functionally dependent on the influx of immigrants to address critical future challenges in many Western societies, this group is identified with fears about an allegedly uncertain

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future and an unstable order. If one seeks to understand the often highly emotionalized debate on immigration in Germany (and other European countries), it is important to realize that this issue mobilizes (existential) concerns about identity, security, and well-being. Attempts to renationalize borders and use them as uncontested legal and symbolic reference points in determining membership might in this respect reflect a reaction to what is perceived to be alien and threatening. The events of September 2001 have reinforced this tendency, nourishing the sense of omnipresent danger and the face of the alien “other” as the projection of these fears. The investigation into public discourse on these issues in Germany indicates how prominent the idea of borders guarding the only legitimate (and superior) form of social integration and political community still is. Although notions of national or even racial superiority are virtually nonexistent, dominant ways of framing the relationship between German society and its immigrants are significantly shaped by narratives of national exclusiveness. This is not an intrinsically German phenomenon, and it is safe to assume that similar patterns can be found in other contemporary European societies. The plea for an unambiguous symbolic boundary between members and aliens has proven to be both an integral part of the discursively reproduced self-understanding of these societies and a successful political tool in the mobilizing efforts of a variety of anti-immigrant, populist organizations throughout Europe. Their nationalistic rhetoric might still come from the margins of these societies. What is alarming, however, is that their emphasis on exclusionary nationalistic feelings and antiforeigner sentiments resonates with beliefs and representational practices that are not alien to mainstream society and politics. Notes 1. See, Albrow, M. 1996. The Global Age: State and Society beyond Modernity. Oxford: Polity. Ruggie, J. R. 1993. Territoriality and Beyond: Problematizing Modernity in International Relations. International Organization 47 (2): 139–74. See also, Zürn, M. 2000. Democratic Governance beyond the Nationstate: The EU and other International Organizations. European Journal of International Relations 6 (2): 183–221. 2. Hollifield, J. 2000. Migration and the “New” International Order: The Missing Regime. In Managing Migration: Time for a New International Regime, ed. B. Ghosh. Oxford: Oxford University Press. 3. Dittgen, H. 1999. World Without Borders? Reflections on the Future of the Nation-State. Government and Opposition 34 (2): 161–79. 4. See Andreas, P. 2003. Redrawing the Line: Borders and Security in the Twentyfirst Century. International Security 28 (2): 78–111. See also, Ceyhan, A., and A.

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5. 6.

7.

8. 9.

10. 11. 12.

13. 14. 15.

16. 17.

18. 19.

Tsoukala. 2002. The Securitization of Migration in Western Societies: Ambivalent Discourses and Policies. Alternatives: Global, Local, Political 27:21–39. Schmidtke, O. 2001. Trans-National Migration: A Challenge to European Citizenship Regimes. World Affairs 164 (1): 3–16. Kymlicka, W. 2004. Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship. Oxford: Oxford University Press. With respect to patterns of political claim making and mobilization across borders, Koopmans et al. and Ozcurumez in this volume suggest caution when determining the quality and degree of these processes in the transnational arena. For instance, the survey of the Eurobarometer; see also Laitin, D. D. 2002. Culture and National Identity: “The East” and European Integration. West European Politics 25 (2): 55–80. Castles, S. 2002. Migration and Community Formation under Conditions of Globalization. International Migration Review 36 (4): 1143–68. See Lahav, G. 2004. Immigration and Politics in the New Europe: Reinventing Borders. Cambridge: Cambridge University Press. See also, Schmidtke, O. 2005. “Re-mapping Europe: Collective memory and identity in an enlarged European Union. EUROSTUDIA. Transatlantic Journal for European Studies 1 (1), http://www.cceae.umontreal.ca/Re-mapping-Europe-Collective. This term refers to a group of EU member-states that in 1985 signed a treaty to end internal border checkpoints and controls. Eder, K., and B. Giesen, eds. 2000. European Citizenship: National Legacies and Transnational Projects. Oxford: Oxford University Press. Bader (1997) speaks in this context about the “cultural conditions” of citizenship, a form of “historic rootedness” of citizenship in viable cultures, values, and ethnic bonds. See also Kalberg 1993. Donati, P. 1995. Identity and solidarity in the complex of citizenship: The relational approach. International Sociology 10:299–314. Oommen, T. K., ed. 1997. Citizenship and National Identity. From Colonialism to Globalism. London: Sage. See Bendix, R. 1977. Nation-Building and Citizenship. Studies of Our Changing Social Order. Berkeley: University of California Press. See also Giesen, B. 1998. Intellectuals and the German Nation: Collective Identity in an Axial Age. Cambridge: Cambridge University Press. Torpey, J. 1998. Coming and Going: On the State’s Monopolization of the Legitimate “Means of Movement.” Sociological Theory 16 (3): 239–59. Koopmans, R., P. Statham, M. Giugni, and F. Passy. 2005. Contested Citizenship: Immigration and Cultural Diversity in Europe. Minneapolis: University of Minnesota Press. Blumer, M., and A. M. Rees. 1996. Citizenship Today. The Contemporary Relevance of T.H. Marshall. London: University College London Press. See Bader, V. M. 1995. Citizenship and exclusion. Radical democracy, community and justice. What is wrong with communitarianism? Political Theory 23: 211–46. See also, Benhabib, S. 2006. Another Cosmopolitanism: Hospitality,

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20.

21. 22.

23.

24. 25.

26.

27.

28.

Sovereignty, and Democratic Iterations. Oxford: Oxford University Press. Also, Habermas, J. 1992. Citizenship and national identity: some reflections on the future of Europe. Praxis International 12 (2): 1–19. See Green, S. 2004. The Politics of Exclusion: Institutions and Immigration Policy in Contemporary Germany. Manchester: Manchester University Press. Also see, Soysal, Y. N. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe. Chicago: University of Chicago Press. Thränhardt, D., ed. 1996. Europe—A New Immigration Continent: Policies and Politics in Comparative Perspective. Munster, Germany: Lit. Hammar, T. 1989. State, nation, and dual citizenship. In Immigration and the Politics of Citizenship in Europe and North America, ed. W. R. Brubaker. Lanham, MD: German Marshall Fund of the United States and University Press of America. One of the most controversial issues in the debate on the new Citizenship Law was the question concerning dual citizenship. The conservative parties wholeheartedly reject the idea because, as former German Chancellor Helmut Kohl, phrased it, “there can be loyalty only to one country.” Due to the strong opposition in both chambers of parliament, the governing red-green coalition had to abandon the idea of dual citizenship and instead pursue the strategy of significantly facilitating the naturalization process. For a concise account of the changes introduced under the new SPD-Green government, see Green 2004. The empirical base has been four mainstream newspapers of the years 1998 to 2002 and the weekly journal Focus. The political orientation of these newspapers ranges from more or less moderate right-conservative (Frankfurter Allgemeine Zeitung FAZ, Focus) to social-democratic (Süddeutsche Zeitung SZ, Berliner Zeitung) to a moderate left-green orientation (Tageszeitung taz). It is commonly acknowledged that FAZ and SZ are the dominant “agenda-setters” within the German media landscape. All selected articles dealt with immigrants from Turkey and Poland, or “Russian-Germans” (Russian emigrants of ethnic German origin). A total of 913 articles has been qualitatively evaluated and coded. For a full account of the result of the research project, see Eder, Rauer, and Schmidtke (2004). The newspaper articles were coded with a program for qualitative text analysis by a research team at Humboldt University. The team was repeatedly tested for intersubjective reliability when coding the articles. See Green, S. 2004. The Politics of Exclusion: Institutions and Immigration Policy in Contemporary Germany. Manchester: Manchester University Press. Also see, Schmidtke, O. 2004. From Taboo to Strategic Tool in Politics: Immigrants and Immigration Policies in German Party Politics. In Germany on the Road to Normalcy. Policies and Politics of the Red-Green Federal Government (1998–2002), ed. W. Reutter, 161–82. New York: Palgrave Macmillan. Rauer, V., and O. Schmidtke. 2001. Integration als Exklusion? Zum medialen und alltagspraktischen Umgang mit einem umstrittenen Konzept. Berliner Journal für Soziologie 3:277–96.

110 Oliver Schmidtke 29. Schmidtke, O. 2004. From Taboo to Strategic Tool in Politics: Immigrants and Immigration Policies in German Party Politics. In Germany on the Road to Normalcy. Policies and Politics of the Red-Green Federal Government (1998–2002), ed. W. Reutter, 161–82. New York: Palgrave Macmillan. 30. Shapiro, M., and H. Alker, eds. 1996. Challenging Boundaries: Global Flows, Territorial Identities. Minneapolis: University of Minnesota Press. 31. Bourdieu, P. 1991. Language and Symbolic Power. Cambridge: Polity. 32. See Harvey, D. 2000. Spaces of Hope. Berkeley and Los Angeles: University of California Press. Also see Offe, C. 1998. “Homogeneity” and Constitutional Democracy: Coping with Identity Conflicts through Group Rights. Journal of Political Philosophy 6:113–41.Also see Walker, R. B. J. 1993. Inside/Outside: International Relations as Political Theory. Cambridge: Cambridge University Press. 33. Kratochwil, F. 1994. Citizenship: On the Border of Order. Alternatives 19:485–506.

PART II

Limits of Governing Migration and Citizenship

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CHAPTER 5

We Are All “Republican” Now Changes in, Prospects for, and Limits of Citizenship in Germany Thomas Faist and Jürgen Gerdes

The German Citizenship Puzzle1

T

he reform of the German citizenship law in 1999 presents both a veritable puzzle and a significant challenge to those who have a civic or republican understanding of nationhood as the liberal-democratic solution to immigrant membership. On the one hand, the German law opens the way for the introduction of a strong ius soli element (acquired by place of birth) and more tolerant naturalization; on the other hand, it remains restrictive in terms of dual citizenship (cf. Figure 5.1). Indeed, the principle of descent-based ius sanguinis is now complemented by ius soli: children born in Germany of at least one parent who has resided in Germany for six years can now acquire German citizenship in addition to their parents’ nationality; further, as-of-right naturalization can be obtained after only eight years rather than fifteen, as was previously the case. Still, even though there are now more exceptions, dual citizenship is not accepted as a rule. Interestingly, a compromise on ius soli and dual citizenship between the contending political parties was possible by reverting to a principle applied mostly in the nineteenth century: the compulsory option principle. This principle dictates that the person who receives German citizenship under the new law by ius soli must at maturity choose one citizenship only. In sum, there is a very glaring disjunction: Germany (along with the UK, Ireland, and Portugal) now has the

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most liberal ius soli regulation in Europe, but (along with Austria, Denmark, and Iceland) remains among the most restrictive countries—at least legally— regarding dual citizenship. The supplementation of birthright citizenship by the ius soli component certainly fits squarely within the often-proclaimed thesis of convergence among European states. This development would also be predicted by a sociologically functionalist approach, which says that the fundamental human right to citizenship and democratic principles finally will take hold in liberal democracies. In the case of liberal democracies, the basic principle is the recognition of the congruence of the resident population and the populace, the so-called demos. The puzzle is thus: why has there been a liberalization of birthright acquisition of citizenship (ius soli), and eased rules of as-of-right naturalization, but not of dual citizenship? Such an outcome is not logically consistent; we would have expected liberalization in both realms. The ius soli element, liberalized as-of-right naturalization, and the increased toleration of dual citizenship would have been consistent with a further blurring of the Figure 5.1 Access to citizenship in Germany since 2000 Second generation and those socialized in Germany

ius sanguinis ius soli, provided that one parent has lived for eight years in Germany or has held a permanent residence permit for at least three years (since 2000) ius socialisationis: educated in Germany for eight years for second generation (since 1993)

As-of-right naturalization

after eight years of residence; conditions attached: no welfare dependency; language test: evidence of sufficient knowledge of German

Dual citizenship

accepted for ethnic Germans accepted in specific circumstances, such as when economic loss is involved or when country of origin does not allow expatriation “optional principle” if the child obtains the parents’ nationalities, he or she must give up one nationality before reaching the age of twenty-three

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boundaries of citizenship.2 Germany is a linchpin case because while it conforms to the observation of the convergence of citizenship rules in liberal democratic states,3 there is at the same time an important discrepancy, namely the lagging increase in the tolerance of dual citizenship. A first approach to solve the puzzle, if not to understand, the reach of the citizenship concept, can be found in the “tradition of nationhood,” presented most cogently by Rogers Brubaker. Taking ideas seriously in the sense that Max Weber did in his famous passage in the Sociology of Religion, in which he metaphorically spoke of “ideas” guiding interests along train tracks, Brubaker claims, “Citizenship in a nation-state is inevitably bound up with nationhood and national identity, membership of the state with membership of the nation. Proposals to redefine the legal criteria of citizenship raise large and ideologically charged questions of nationhood and national belonging. . . . The politics of citizenship today is first and foremost a politics of nationhood.”4 According to this approach, two types of nationhood can be distinguished—civic nations and ethnic nations—with the dominant exemplars being France and Germany. From the perspective of persons, civic or republican membership is a question of subjective will and of individual readiness to affiliate and express loyalty to state and nation. According to an ethnic understanding, objective belonging to the cultural and linguistic community (a belonging based predominantly on descent) is a precondition for political membership. From a republican vantage point, for inclusion in the overall political community, citizenship is seen as a crucial precondition for public mindedness. By contrast, according to an ethnic understanding, inclusion in the nation is seen as prepolitical, traced to common descent, cultural traditions, or lineage. Political participation and opportunities are seen and interpreted as an issue of intergenerational continuity. Within an ethnic understanding, access to citizenship is often differentiated according to ethnic origin and assumed cultural proximity; within a republican or civic understanding, citizenship is accessible equally, under the same conditions, to all immigrants, regardless of ethnic origin or cultural traditions.5 We would expect that in countries where the republican concept dominates, we would find states to be at the very least indifferent to toleration of dual nationality for immigrants and for citizens living abroad. In those states where an ethnocultural concept—or even more so, an ethnonational concept—reigns supreme, we would find intolerance of dual nationality for immigrants. The problem with this model is, first, that it would account only for the resistance against an increased tolerance of dual citizenship—not for the change in German citizenship law, that is, the introduction of ius soli. Second, even more puzzling, there is no empirical evidence that—at the time of the crucial debates on citizenship reform in 1998–99—the ethnocultural

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tradition was relevant. No arguments on that score can be found in the political debates in German parliament.6 From German parliamentary discourse in the late 1990s, we would conclude that, to paraphrase Nathan Glazer’s7 felicitous title, German policy makers have espoused a civic outlook: “We are all ‘republican’ now.” To gain an adequate interpretation of the German citizenship law reform, it is useful to break down the puzzle into three questions that are addressed and discussed consecutively here; the first two are about the change in German citizenship law, the third is about the law’s prospects and its limits. First: What accounts for the delay of German citizenship reform in the 1980s and 1990s? How did the change in this law come about, and why has there been a delay in bringing about reform? After all, the leaders of German political parties had been in agreement for years on the matter of reforming citizenship law. Even the Christian Union parties, at least the CDU, agreed as early as 1984 that the citizenship law needed reform. And since the mid1990s, the major parties have agreed on some sort of ius soli complement. Throughout the 1990s, spokespersons in civil society advocated for the necessity of reforming the old German citizenship law of 1913 in order to raise the comparatively extremely low naturalization rates, which—during the 1990s—were approximately five times lower than those of France and ten times lower than those of Sweden. Second: Why are there no ethnonationalists anymore? If it is true that “we are all ‘republican’ now,” and if the ethnic-versus-civic understanding of nationhood does not describe the situation, then what are the lines along which public debates on citizenship are drawn and that guide respective political interests? My argument here is that we can detect at least two versions of republicanism, or more precisely, overall societal integration, in German public discourse: a more communitarian version on the one hand, and a liberal equal-rights perspective on the other. Societal integration refers to both the integration of immigrants and the integration of society. This finding suggests that we should not focus simply on the tradition of nationhood characteristic of countries or political systems as a whole but rather on how the politics of membership and, above all, the underlying ideas and belief systems have shaped the political opportunity structure and the contending belief systems within countries. Third: what are the limits of citizenship as a concept of social integration? In order to see what the shift from an ethnocultural to a republican or civic concept of citizenship might mean for the integration of immigrants, we need to go beyond citizenship as a legal concept and look at citizenship as a political concept. The reform of German citizenship law occurred not only after German reunification—that is, the congruence

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of territory and nation—but also at a time when European Union (EU) citizenship was already in place. Given this, we could interpret the German reform as a reflection of the Europeanization of national citizenship. But do the European convergence of citizenship laws and an emerging EU citizenship since the 1992 Treaty of Maastricht signal a more open, inclusionary policy toward immigrants? Is the concept of republican citizenship as active citizenship useful for tackling not only the issue of the political exclusion but also that of the social exclusion of immigrants? Certainly, civic concepts of citizenship in their liberal and communitarian versions suggest the need to reconcile claims of universal justice with more particularistic and protectionist tendencies of nation-state citizenship. There is, however, an inherent tension between universal justice and social justice in bounded political communities known as welfare states. The principle of social justice tends toward a more open immigration policy, or even open borders and eased access to full membership for those residing in the territory of the state. The principle of bounded social justice leads toward territorial and social closure and immigration restrictions. We therefore could ask whether human rights can replace citizen rights as a form of protection for migrants. Question 1: What Accounts for the Delay of German Citizenship Reform in the 1980s and 1990s? To account for the delay of the ius soli element until 1999 and the categorical rejection of dual citizenship (de jure) in the same year, we need to consider in closer detail the political and legal opportunity structure. Throughout the 1980s, after the collapse of the political elite consensus on guest worker migration, political cleavages in Germany among party political party elites became dominant. Party coalition politics, characterized by metapolitics, pitted party blocs against each other and thus slowed for almost a decade the realization of (in the words of Chancellor Gerhard Schröder and his party, the Social Democratic Party of Germany [SPD], in 1998) a “modern” and “European” German citizenship law. All along, the Federal Constitutional Court and Basic Law provided specific legal opportunities, which first limited chances for reform, but after German reunification and the end of the cold war, provided space for change. The Metapolitics8 of Immigration Since the settlement of former guest workers became an obvious issue in the late 1970s, the overall debate on admission and membership has been whether or not Germany should perceive itself as a “country of immigration.” Even many of those who felt Germany should not consider itself as such did

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not dispute the necessity of reforming the Reichs- und Staatsangehörigkeitsgesetz of 1913. From the beginning of the 1980s until 1998, numerous initiatives, proposals, and drafts of legislation from all political parties and from some regional states (Länder) were made. In addition, civil society groups and organizations such as unions, churches, immigrant associations, intellectuals, and representatives of the mass media demanded the repeal of the citizenship law of 1913. However, none of the proposals could muster a majority. During the 1980s, sometimes termed the “lost decade,” membership politics as metapolitics resulted in no reform whatsoever. During the 1990s (after reunification), partial reform did occur, despite metapolitics. The metapolitics of the 1980s and the debate on both admission and membership linked immigration and its consequences for political membership to issues that, on closer examination, cannot be addressed significantly by immigration and immigrant policy—for instance, structural unemployment. This tendency was coupled with symbolic politics, which lacked substance. For example, upon taking office in 1982, Chancellor Helmut Kohl announced a reduction of the immigrant population in one year by one million. This, of course, was a ludicrous policy goal when one considers that permanent settlement had already occurred and was legally sanctioned by decisions of the Federal Constitutional Court in 1978. The political structure (namely, the absence of elite consensus) and a succession of coalition governments in a federal system (from 1982 to 1998, the CDU/CSU [Christian Democratic Union of Germany and the Christian Social Union] and the FDP [Free Democratic Party], and since 1998 the SPD and the Greens) enhanced metapolitics. Moreover, bloc politics was fuelled by the overwhelming need to achieve consensus in a federal system in both houses of parliament (Bundestag, and the representatives from the Länder, the Bundesrat) due to concurrent legislation, the varying majorities in both houses, and the premium placed on immigration for electoral purposes. The metaissue of immigration proved attractive because it provided an opportunity to achieve visible policy results—for example, reducing the flow of asylum seekers. In this highly competitive set-up, the Christian Union parties had an advantage over the SPD. As catch-all parties, the Christian Union parties not only cater to the economic-liberal wing and the union-worker wing (Christliche Arbeitnehmer) but also to the national-conservatives. This may actually go a long way to explaining the prevalence of metapolitics and why right-wing populist parties in Germany have not (yet) made substantial inroads, unlike in the Netherlands and France. The other large party, the Social Democrats, has been continually split between a liberal-minded party

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elite and the alleged restrictionist attitudes of the working-class electorate. Former Chancellor Helmut Schmidt declared in the 1980s that a liberalization of immigration and membership policies would go against the desires of the working-class public. Turning Points in the Citizenship Debate We can identify at least four turning points that led to the eventual reform in 1998, each a necessary but not sufficient condition in its own. First, in 1989, the Federal Constitutional Court made a decision on the issue of local voting rights for permanent resident noncitizens, akin to policies effective in the Netherlands since 1985 and in Sweden since 1975. The Federal Constitutional Court ruled that local voting rights for foreigners could not be granted. Instead, the court urged legislators to redefine the demos, that is, create congruence between the resident population and the demos. This ruling converged with the intentions of the political actors who brought the issue to the court—the Länder of Schleswig-Holstein and Bremen. They were not so much interested in introducing local voting rights for permanent residents. Instead, they were looking for a venue in which to clarify who belonged to the demos. Second, German unification in 1990 did away with the argument that a reform of the citizenship law could not be undertaken because it would not include the “other half ” of the divided nation. Third, in the wake of severe anti-immigrant violence (culminating in deadly arson attacks in the early 1990s in cities such as Mölln, Rostock, and Hoyerswerda), civil society organizations mobilized in response. They not only held candlelight vigils in which hundreds of thousands of citizens participated, but they also renewed calls to change membership laws. International condemnation was overwhelming. After all, the resemblance of the arson attacks to methods used in the Holocaust was not lost on even the most casual observer. From the early 1990s until the mid-1990s, agreement among politicians from the governing and opposition parties grew stronger: the rudiments of reforming birthright citizenship, as-of-right naturalization, and dual nationality were all put into place. Yet only minor reforms resulted, due primarily to the factional strife within the ruling Christian Union parties. The only reforms with regard to citizenship acquisition were made in 1990 and 1993, within the realm of foreigner law. The introduction of as-of-right naturalizations for young foreigners after eight years of legal residence, and for immigrants of the first generation after fifteen years of legal residence, was the outcome of a compromise between the Christian Democrats in government and the Social Democrats in opposition. These changes were introduced within a broader

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agreement in order to reach the two-thirds majority for a constitutional amendment, necessary for a 1992 reform of asylum law. Finally, when the Red-Green political coalition (SPD and Greens) took power in 1998, Chancellor Gerhard Schröder, pressured by the Greens, announced an ambitious “modern” and “European” citizenship law. In the election campaign leading up to the change of power, the Greens emphasized dual citizenship, not the ius soli complement, perhaps because they wanted to emphasize the European dimension and because the Christian Union parties had opposed ius soli earlier. Initially, the government coalition proposed to introduce the ius soli principle for foreign children born in Germany if one of the parents was German-born or had entered the territory before the age of fourteen and was in possession of a residence permit. Second, renunciation of one’s previous citizenship would no longer be required in all cases of as-ofright naturalizations. The CDU/CSU, which had to cope with its severe defeat in the federal elections of 1998, and which faced serious problems regarding irregularities with party financing at that time, quickly picked up this issue as its first main theme in opposition. It organized a petition campaign immediately prior to the first regional state elections in Hesse following the national elections, using a quasiplebiscitary instrument that the Greens had used a couple of years before. The heated campaign concentrated on the general introduction of dual citizenship “as a rule” and, in particular, the “double passport,” which was portrayed to be unfair to monocitizens (as the CDU/CSU framed the issue). Again, metapolitics had a field day. Membership issues were linked to the potential rise of Islamic parties represented in the German Bundestag, and the eased access of “terrorists” to German territory (this was before 9/11; with the Kurdish Workers Party (PKK). After losing the elections in Hesse and the majority in the Bundesrat, the SPD and the Greens had to collaborate with the Liberal Party to reach a compromise; it finally found one in the form of the so-called option model, which came into effect at the beginning of 2000. As a result, ius soli was more liberal than intended; although there was no general tolerance of dual citizenship (that is, the new law did not do away with the renunciation requirement), it did have an additional option clause. In sum, when seen from a functional differentiation perspective of political development, Germany was a laggard in ius soli until 1999, and is still so regarding dual citizenship, partly because of characteristics of the political system that favor membership politics as metapolitics. But German reunification and the end of the cold war provided a propitious legal opportunity for the proponents of citizenship law reform in the 1990s.

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Question 2: Why Are There No Ethnonationalists Anymore? In the metapolitics and politics of membership, belief systems and ideologies figured prominently. As the short sketch of the political history of membership politics in Germany from the 1980s onward suggests, a shift to more liberal access to citizenship has occurred. The introduction of ius soli can be interpreted as a congruence of ideas prevalent in the general political culture with more specific citizenship laws. Yet it is too facile to describe the change in underlying ideas as connected to distinct conceptions of nationhood that emphasize a dichotomy of state and nation. The recognition of dual citizenship “as a rule” was rejected by politicians using “republican” or “civic” arguments. In order to understand change, we should not focus on national political cultures as a whole—as the tradition of nationhood approach suggests—but rather inquire into the contested concepts of citizenship.9 In a nutshell, belief systems have mattered, but it has been integration in the sense of overall integration of society and the integration of individual immigrants, rather than nationhood, that has been of most importance. This can aptly be called the “integration” belief system. Diametrically opposed and diametrically conflicting interpretations about the meaning of integration and corresponding policies structured the persistent dissent of two political camps, clearly visible in the public discourse of party politics. Thus, it can be argued that the politics of citizenship in Germany in the 1990s can essentially be framed and explained by two conflicting views of integration: On the one hand, the proponents of ius soli and tolerance of dual citizenship naturalization see both these as necessary elements of immigrant integration and as matters of equal individual rights. On the other hand, the opponents of dual citizenship see renunciation of former citizenship as a precondition of naturalization, which is to be evaluated from a state-communitarian standpoint. In the end, the two dimensions of the reform of the citizenship law reflect a political compromise between the two conflicting political camps and their very different beliefs about integration. To validate this argument, one can turn to an empirical analysis of the debates on dual citizenship in German parliament. After all, it was the proposal of dual citizenship in general and the renunciation requirement in particular—and not simply the ius soli component of the reform—that were at the center of the public debate. The Reconfiguration of German Nationhood after 1945 To put it briefly, arguments made by politicians of the CDU/CSU in parliament in 1998–99 can hardly be construed as ethnocultural or even ethnonational. Yet proponents of reform always accused their opponents of making

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such arguments. The absence of ethnocultural arguments in the late 1990s becomes comprehensible when we examine three factors: (1) the changing political culture in Germany since 1945; (2) the justification for privileged immigration and access to full membership by ethnic Germans ([Spät]Aussiedler) from Eastern Europe; and (3) party ideologies and programmatic statements. In general, political culture in Germany has changed profoundly since Nobel Prize laureate Thomas Mann proudly proclaimed in his Betrachtungen eines Unpolitischen a specific German civilizational nationhood in the interwar period.10 Since World War II, the German concept of nation has undergone considerable change. First, many contributors to public debates have specifically identified German nationalism, and thus the German concept of nationhood, as one of several factors contributing to the catastrophe of Nazi rule and the Holocaust. Thus, the denationalization that occurred following World War II was more profound in Germany than in other European states. Second, the politics of integration and a strong pro-European orientation from the establishment of the West German state, as a consequence of occupation and in the context of the cold war, has significantly transformed national self-understanding in Germany.11 Since the late 1970s, calls for constitutional patriotism12 have been an integral part of public debates. Third, economic prosperity and the growth of the welfare state in the land of the economic miracle (Wirtschaftswunderland) created an alternative basis of identity for Germans from the 1950s until at least the 1970s.13 Fourth, in the aftermath of the student revolts in 1968, a fundamental change in German political culture took place, leading to a heightened sensitivity to all issues relating to the Holocaust, anti-Semitism, and totalitarianism. While these issues have by no means been dealt with in public debates in a normatively satisfactory way, there have been continued debates dealing with the particular history of the perpetrators (and not only the victims) of the Nazi regime.14 While this discussion presents more general features of German political culture, even public policies on citizenship in the early period after World War II do not readily lend themselves as proof of a developing ethnocultural concept of nationhood. In particular, though one provision of the German Basic Law has often been invoked as key evidence of Germany’s ethnic understanding of nation, it could also be interpreted in another way. Article 116 of the law states that those expatriated under Nazi rule, and refugees and displaced persons of German nationality (Volkszugehörigkeit) and their descendants who lived within the territorial borders of 1937, have a privileged access to immigration and citizenship. The original intent of the article was to respond to and correct historical injustices. The Volkszugehörigkeit were granted privileged access to entry and citizenship without further conditions,15 not simply

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because they were of German ethnic origin but also because of their constitutionally guaranteed status and because it was assumed that they were victims of persecution and expulsion during and after World War II. After the fall of the Iron Curtain and German reunification, the privileged status of resettlers of German ethnic origin quickly diminished. Increasingly, they were treated as other immigrants and expected to make efforts to integrate and to learn the German language. After the fall of the Iron Curtain, once the persecution of ethnic Germans could no longer be publicly invoked, the Christian Union government introduced a new law (Kriegsfolgenbereinigungsgesetz) in 1993, stipulating that those wishing to immigrate to Germany from countries other than the former Soviet Union had to provide proof of individual discrimination. The assumption of collective persecution and discrimination based on ethnicity was abandoned at the same time that authoritarian regimes began their slow transformation to democratic rule and to establishing minority rights. Party platforms and programs are the third indicator of the varying concepts of nationhood held by German political parties. Clearly, the Greens, the Social Democrats, and the Free Democrats display a straightforward republican understanding of nation, as evidenced by their contributions to the citizenship debates since the 1980s. If the restrictive aspects of the German citizenship law and the delay of reform are attributed to an ethnic concept of nation, then only the Christian Union parties could be to blame. However, Christian Democrats place emphasis on the subjective will of the immigrant as a potential applicant to citizenship—a central feature of a republican understanding of nationality. Their objection to dual citizenship in particular was not based on descent, but rather on the idea that renunciation of citizenship serves as a sort of loyalty oath, reflecting the internal willingness and readiness of the individual immigrant to be part of the political community. In sum, Christian Union parties espouse a republican ideology. The question remains, then, why ethnocultural arguments were used until the mid-1990s to shape immigration policy, and how they were adapted into metapolitics when they ran counter to party ideologies. New Trench Lines of Debate: Liberal Democrats versus Statist Communitarians The political party platforms were mirrored in parliamentary debates; the warm embrace of the republican idea of nation in the final debate about the citizenship law reform in May 1999 is particularly striking. Professor of law Rupert Scholz (CDU) confirmed a republican understanding of nation as a “daily plebiscite” (Ernest Renan), which was invoked by the Minister of Interior Otto Schily as justification for the new citizenship law. Agreeing with Schily’s reference to Renan’s idea that concrete nations require the active

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consent of their citizens, Scholz defined nations as communities of both shared experience and shared will. But he framed his agreement with the respective law reform as an essentially democratic issue. According to Scholz, shared will is the clearly articulated desire to continue the common life. According to Scholz, it would be doubtful whether dual loyalties make possible such a common life.16 If it is true that “we are all ‘republican’ now” has any purchase, the ideological dividing lines have to be sought in concepts other than the relationship between the nation and the state, that is, nationhood. An empirical analysis of all the speech acts and arguments in the parliamentary debates of 1998–99 indicates that the guiding belief system can be labeled one of “integration,” and more precisely, ideas on societal integration.17 To refine our understanding of the conflicting beliefs on integration, a threefold distinction between the individual, civil society, and the state is appropriate (see Figure 5.2). With respect to the function and role of the individual, the notion of the opponents of dual citizenship—mostly parliamentarians of the Christian Union parties—integration was guided by the Catholic social doctrine of subsidiarity, which says that the smallest social unit should fulfill social obligations that arise in national communities. In the case of integration, this doctrine would dictate that individuals should prove they have made efforts to integrate civically and socioeconomically before naturalization “crowns” the integration process. Moreover, renouncing one’s original citizenship becomes a declaration of loyalty. Those in favor of tolerating dual citizenship—parliamentarians of the Social Democratic Party (SPD) and the Greens (Bündnis 90/Die Grünen)—focused on the enabling function of the state, which is supposed to provide equal rights to all permanent residents. On the civil-society level, the opponents of dual citizenship emphasized that trust and reciprocity among citizens are resources that cannot be created by the state. They referred to a former judge of the Federal Constitutional Court, according to which the free and secular state builds upon preconditions that it can not guarantee on its own account.18 This reasoning was used to argue that dual citizenship would undermine principles such as “one person, one vote.” This would ultimately result in decreasing levels of trust among citizens, which could lead to an undermining of welfare state solidarity and reciprocity. The argument goes that dual citizens could exert voice and thus help to bring about laws from which they could exit at any time to another state. The citizens not having this option would then mistrust dual citizens. In essence, opponents of dual citizenship believed that political communities are at heart socially and culturally defined. By contrast, the proponents of dual citizenship emphasized a concept of political solidarity, which does not place such a high premium on the right of a

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political community to defend its boundaries if its citizens’ rights are violated. This belief relies on the formative role of political institutions and does not value prepolitical requirements of political integration. The beliefs of opponents and proponents of dual citizenship were also distinct when it came to the role of the state. Not only did opponents focus upon the core function of providing security, and thus privilege law and order; but they also focused on effective legitimation, expressed predominantly as the empirical consent of the established citizenry. The proponents, however, pointed to principles such as democratic congruence, constitutional patriotism, and equal political rights of participation as the very basis of legitimacy, and thus were more geared toward a procedural understanding. In sum, while the opponents of further boundary blurring referred to a more “communitarian” concept of the interrelationship between individual, civil society, and the state, the proponents took a liberal, equal-rights perspective in the parliamentary debates in 1998–99. It is certainly not clear which one of these “republican” understandings of integration will guide policy making on the boundaries of citizenship. We observe a general trend toward the proliferation of exceptions regarding dual citizenship. There are three signs of this trend. First, because of the importance of individual rights, liberal democracies such as Germany have been compelled to accept dual citizenship upon naturalization if the respective origin state makes renouncing nationality impossible, or imposes unreasonable demands on those who would otherwise renounce citizenship. Second, German authorities now accept dual citizenship in the name of gender equity in binational marriages when nationality is acquired by birth. Third, Germany is inclined to grant dual citizenship within regional governance systems such as the EU, based on the principle of reciprocity. On the basis of the growing number of exceptions, new interpretations of individual rights and new claims of other categories of persons tested through the courts could easily lead to a further increase in the number of exceptions. As of now, already 40 percent of all naturalizations in Germany are completed without the new citizen renouncing his or her other citizenship. This includes 30 percent of all naturalizations of citizens originally from Turkey, 90 percent of naturalizations of citizens from the former Yugoslavia, and 95 percent of naturalizations of citizens from Iran. The more exceptions and thus potential claimant groups there are, the greater the likelihood that questions of legitimation will arise: each exemption has to be justified on reasonable grounds. Problems of justification and the rising costs of administration may well lead, in the long run, to a general tolerance of dual citizenship. In the rather restrictive German case, for example, it is not unlikely that unequal treatment as a consequence of the so-called option model (cf. Figure 5.1) could result in

126 Thomas Faist and Jürgen Gerdes Figure 5.2 Belief systems of political parties in Germany: “Integration” Immigrants

Society

Loyalty Socioeconomiccultural integration (subsidiarity)

Concept of Focus on core state societal solidarity functions (“communitarian”) Concept of effective legitimacy

Social Democrats, Equal rights Greens (PDS) Political integration (Free Democrats)

Concept of Concept of effective political solidarity and procedural legitimacy

Christian Democrats (Free Democrats)

State

increased tolerance. After all, the Federal Constitutional Court will be hard pressed to justify why children of immigrant parents must choose one citizenship while those of binational marriages are not forced to take such an “option.” More than likely, the Federal Constitutional Court will have to decide whether or not this clause can be upheld.19 Question 3: What Are the Limits of Citizenship as a Concept of Social Integration? The heated political debates over the reform of citizenship law in Germany and in various other countries indicate that full membership in a national political community is a significant element of political integration and democracy at a time when the definition of nation-state borders and the boundaries of legal, social, and cultural belonging are ever more contested. Overall, there is no doubt that analyses of the reconfiguration and redefinition of citizenship are central to how nation-states and corresponding (multi)national political communities have adjusted to the transnational movements of persons.20 Indeed, the very understanding of the four essential elements of citizenship—the principle of equal political freedom, the rights and duties of citizens and states toward each other, the understanding of the political community, and citizen participation—seems to have been in flux over the past decades, as the analyses of the types of nationhood and their relevance for citizenship legislation suggest. Nonetheless, given the convergence of citizenship legislation and the trend toward a “republican” understanding of citizenship, the main question now is whether citizenship and citizen rights are a sufficient basis for the integration of immigrants in a world of ever-increasing mobility. In other words, do citizen rights cover the needs of transnationally mobile persons, including problems of admission and social inclusion? For migrants, a continuum of membership from few to full rights

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seems most appropriate. And indeed, it seems as if human rights play an everincreasing role not only in justifying the de facto right to citizenship but also in the basic protection of categories such as asylum seekers and undocumented migrants. We have not only seen a reconfiguration of citizenship but also a veritable explosion of international conventions, national public policies, public debates, and academic analyses about the rights of persons who are not citizens of a country of immigration. Historically, the fundamental human rights have been defined as “the rights to life, liberty, and property.”21 New ones have been added in recent decades, at least in public understanding and in international human rights law, such as the freedom from arbitrary arrest and detention.22 On one hand, there has been a de facto movement toward treating citizenship as a human right; that is, access to formal citizenship is considered a human right.23 In this regard, there is no tension between human rights and citizen rights. On the other hand, human rights, with a potentially global and equal application to all persons, irrespective of the citizenship they hold, have remained much weaker than citizen rights, which are limited to full members of national political communities. The Limits of Citizenship: Social Exclusion and the Admission-Membership Dilemma The concept of citizenship has two important limits—the first regarding social exclusion and the second concerning the application of human rights in admitting persons. First, citizenship in a world characterized by increasing levels of cross-border mobility is not a concept that can navigate between the principles of universal justice and human rights on the one hand, and justice within bounded political communities such as nation-states on the other. The latter requires some sort of social closure and exclusion of outsiders. There are serious problems of social justice within nation-states if republicaninspired “active” citizenship is to play a role in the fight against social exclusion. The problems that arise go beyond migration and immigrant integration. Active citizens are thought to contribute to associations in civil society. But what about those left out of such associations? They may not have the resources to form their own “clubs” to guard against risks, while the established citizens and their associations select their members according to “good” risks. The rapid spread of private health insurance in countries such as the UK and Germany is a case in point. Second, the burgeoning literature on social capital praises citizens who build generalized reciprocity, trust, and solidarity for the whole community as a by-product of a flourishing associational life.24 Those not engaged in what is considered worthwhile individual or associational activity have increasingly become the object of state-regulated, compulsory schemes, such

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as work-welfare programs.25 In many European societies of immigration, migrants and their children are among the groups most at risk of becoming the object of these schemes. Second, a system in place that protects human rights is particularly important for groups such as refugees and illegal migrants. Indeed, there are human rights principles entrenched in the legislation of many liberal-democratic immigration countries. These principles are strongest when it comes to questions of membership. For example, barriers to discrimination that permanently bar long-term residents from citizenship acquisition, or that deny full membership on the basis of ascriptive features (such as gender, ethnicity, or race), are hard to justify. Nevertheless, human rights norms are much weaker when it comes to admission, which is a precondition for residence and later citizenship. For example, there is no human right to first admission for asylum seekers.26 Quite to the contrary, most receiving states have tightened their rules over the past three decades and have made it much harder for asylum seekers to make any claims, be it through safe third-country rules or visa requirements, conditioning development aid upon successful cooperation in migration control (for example, carrier sanctions for transportation companies—to name only a few of the most obvious instruments).27 The Contradiction between Citizen Rights and Human Rights There may even be a clash of human rights and citizen rights, as evidenced in the case of illegal migrants. There is a fundamental tension between state control and efficiency in safeguarding citizen rights on the one hand, and in addressing the claims of individuals such as illegal migrants on the other. In principle, illegality undermines the effectiveness of immigration policies and the maintenance of established standards in labor markets and working conditions, threatens the legitimacy and financing of social insurance systems, and challenges the established system of collective bargaining between unions and employer associations. Nevertheless, democratic nation-states, which are essentially legitimized by respecting human rights, cannot completely ignore the individual claims of illegal immigrants to consideration according to rule of law, such as medical treatment in emergency cases and basic education for their children. Citizen rights and human rights converge in the issue of legitimation of democratic states. Not only is the protection of citizen rights in bounded welfare states clearly connected to efficient state policies but so also is the protection of illegal migrant rights—though only with respect to human rights, not citizen rights. Hence the argument that since the sovereign nation-state is the main enforcer of universal human rights, individuals enjoy these rights not by virtue of their humanity but by virtue of (full) membership in a

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nation-state.28 Ultimately, this means that stateless persons are without protection. Although the protection of stateless persons has improved over the past decades, the underlying problem has remained. The issue has recently been raised again, particularly with regard to migrants and asylum seekers, in the form of the “paradox of democratic legitimacy,” which grounds legitimacy in liberal democracies in both universal human rights and particular citizen rights: “There is not only a tension, but often an outright contradiction, between human rights declarations and states’ sovereign claims to control their borders as well as to monitor the quality and quantity of admittees.”29 And in light of the earlier discussion, we should clarify that this includes not only admittees such as asylum seekers but also those who reside in societies of immigration without a secure legal status. The tension between citizen and human rights is one of citizen rights built upon the idea of equal political rights, which are contingent upon (full) membership in a (nation)state, on the one hand, and human rights (which are universal and equal but not tied to the main enforcer of rights, the sovereign state) on the other. A human rights perspective, while potentially more inclusive than a citizen rights perspective when it comes to admission and social inclusion, depends on the sovereign state being the main enforcer. True, there has been a recent trend toward incorporating international human rights law into domestic law,30 and toward discussing in international arenas issues such as the right to development, collective rights (e.g., the rights of indigenous people), the right to environmental protection, rights to good health, and (female) workers’ rights. It is equally true, however, that most rights enumerated in prominent documents such as the UN Covenant on Economic, Social, and Cultural Rights have been ignored routinely by sovereign states, which remain the primary enforcers of human and citizen rights. Legal supervision and sanctions in the international realm have remained weak, in marked contrast to citizenship rights enforcement in democratic regimes, which has been characterized by relatively efficient implementation. Europeanization—No Solution In a world of ever wider mobility not only of capital and goods but also of people,31 one might look back in time to see how political communities have dealt with such challenges historically. But liberal-democratic states in Europe and elsewhere are not only democratic states—they are also welfare states. Historically, welfare states in the present Organisation for Economic Co-operation and Development (OECD) have their origins in elite responses to the “vagrant poor” in Europe and elsewhere.32 One might call for European solutions to border-crossing issues such as transnational migration, but the admission-membership dilemma of universal justice versus

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social justice in welfare systems is not solved by creating ever larger collectivities to deal with social risks. As suggested by the process of incipient Europeanization of national migration policies and the weak attempts at collectivization of social policy and immigration policy at the EU level, the tension has merely been replicated at a higher level of aggregation—or to put it more precisely, partly transferred to a multilevel governance system.33 All empirical evidence concerning external and internal border control in Europe suggests that Europeanization has led to higher levels of control and increased efforts at externalization of control by means of buffer zones at the European periphery.34 The Contradiction as Intellectual Inspiration All this leads to the preliminary conclusion that citizenship as a legal and normative-political concept, especially in its republican or civic meaning— whether leaning more toward “liberal” or “communitarian” versions—is not a suitable perspective for understanding the larger issues beyond naturalization and political inclusion, involving both the admission and the social exclusion of migrants. Instead, when viewed in a global perspective, citizenship in Western liberal democracies is more likely to stand for “the modern equivalent of feudal privilege—an inherited status that greatly enhances one’s life chances,”35 and thus constitutes one of the mechanisms reproducing social inequality on a global scale.36 While it might indeed make sense to speak of membership rights, obligations, identities, and practices as a sort of continuum from human rights to citizen rights, we cannot rest content in conceptualizing the usual path from alien to denizen to citizen as if this were a natural progression in a mobile world. Republican concepts of citizenship still represent this path as a series of gates through which immigrants ideally pass. And this evokes a powerful image of progression from admission to the territory and few rights to full inclusion into a national political community from the vantage point of nation-states. Although citizenship still remains one crucial means to achieve full inclusion at the nation-society or nation-state level, it implies, especially in its republican incarnation, a sharp distinction between insiders and outsiders rather than a sliding scale in tune with the needs of border-crossing migrants. Various categories of geographically mobile persons may be in need of very different legal opportunities to participate meaningfully in social life. Ultimately, we have to ask whether human rights could evolve even further to include social and political rights—akin to how citizen rights have evolved over the past three centuries. This could be one more step in the historical evolution of the relationship between human rights and citizen rights,

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which has gone through two stages. In the first stage, the human rights and citizen rights traditions can be traced to the eighteenth century, as they were voiced in the American and French revolutions. In both contexts, rights were seen as civil rights, and were not yet exclusive to citizens only (although other forms of exclusion prevailed, supported by such social conditions as slavery and gender bias, for example). In the nineteenth and twentieth centuries, citizen rights came to be synonymous with inclusion based on equal political rights, while human rights came to mean basic protection against arbitrariness. The difference between the two sorts of rights is visible in particular social-rights settings. Citizen rights have become tied to social citizenship. While the concept is heavily contested politically and academically, social citizenship means that market participation and principles of capitalism should be balanced by status rights to the minimum standard of living prevailing in one’s respective society. Yet human rights in such a context mean only a very basic safety net within liberal-democratic welfare states, and virtually no safety net outside such a state. Regarding a potential third stage of the relationship between human rights and citizen rights, we could ask whether human rights could evolve beyond civil rights to include social and political rights, as citizen rights and citizenship did. If such an evolution might be envisaged, what are the institutions necessary for the global governance of human rights? Notes 1. This chapter is partly based on empirical findings from the project “Dual Citizenship in a Globalizing World.” The research project, sponsored by the Volkswagen Foundation (2002–2005), analyzes the politics of citizenship in Germany, Sweden, the Netherlands, Turkey, and Poland. The comparative framework comes close to what can be called “disciplined” configurative inquiry (Verba 1967). The configurations are sets of factors belonging to the institutional context, such as the party system and the legal system, and to the discursive realm, such as the understanding of nationhood and immigrant integration, and including, above all, concepts of societal integration. The data bases in all cases were parliamentary debates, government documents, and statements by main political actors such as political parties and interest groups on dual citizenship during the 1980s and 1990s (for more details, see Faist, Gerdes, and Rieple 2004). 2. Of course, ius soli per se would not signal a more liberal or tolerant access to citizenship. Combined with restrictive immigration policies, ius soli could be an instrument of exclusion, in other words, territorial as resulting in social closure. Vice versa, the birthright principle of ius sanguinis without ius soli could be fairly

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3.

4. 5.

6.

7. 8.

9. 10. 11. 12. 13. 14.

15.

16.

17.

liberal in case of easy access to as-of-right naturalization; for example, Sweden with comparatively liberal naturalization rules and denizenship rights. Weil, P. 2001. Access to Citizenship: A Comparison of Twenty-Five Nationality Laws. In Citizenship Today: Global Perspectives and Practices, ed. T. A. Aleinikoff and Douglas Klusmeyer, 17–35. Washington, D.C.: Carnegie Endowment for International Peace. Brubaker, R. W. 1992. Citizenship and Nationhood in France and Germany. Cambridge, MA: Harvard University Press, 182. “Republican” in this context does not necessarily mean the conception of Aristoteles zoon politikon, namely citizens as creatures with an inherent proclivity to find ultimate fulfillment in public life and public service. Rather, the term is nowadays connected to some sort of “active” citizenship that seems to describe opportunities with high levels of potential participation for the common good (cf. Kymlicka and Norman 1994). Gerdes, J., T. Faist, and B. Rieple. 2007. The Politics of Dual Citizenship in Germany. In Dual Citizenship in Europe: From Nationhood to Societal Integration, T. Faist, 45–77. Aldershot, UK: Avebury. Glazer, N. 1997. We are all multiculturalists now. Cambridge, MA: Harvard University Press. Metapolitics refers to a coupling of symbolic and populist politics, especially in linking issues such as immigration to intractable “social problems” such as unemployment and crime (Faist 1994). Faist, T. 1994. How to Define a Foreigner? The Symbolic Politics of Immigration in German Partisan Discourse, 1978–1993. West European Politics 17 (2): 54. Mann, T. 1956/1919. Betrachtungen eines Unpolitischen. Frankfurt: Fischer. Cf. Winkler, H. A. 1991. Nationalismus, Nationalstaat und nationale Frage in Deutschland seit 1945. Aus Politik und Zeitgeschehen 41:12–24. Sternberger, D. 1982. Verfassungspatriotismus. Hannover: Niedersächsische Landeszentrale für politische Bildung. Cf. Greiffenhagen, M. 1986. Von Potsdam nach Bonn. Zehn Kapitel zur politischen Kultur Deutschlands. Munich: Piper. Wirsching, A. 2004. 8. Mai und 27. Januar 1945—Zwei Tage der Befreiung? In Tage deutscher Geschichte, ed. E. Conze and T. Nicklas, 239–55. Munich: Deutsche Verlags-Anstalt. To be sure, the increasing dominance of the cold war ideological arguments also played a role in the admission of ethnic Germans. The emigration of ethnic Germans from socialist countries could be used as evidence of the superiority of the West German system. Gerdes, Jürgen, T. Faist, and B. Rieple. 2007. The Politics of Dual Citizenship in Germany. In Dual Citizenship in Europe: From Nationhood to Societal Integration, ed. T. Faist, 45–77. Aldershot, UK: Avebury. For a fine-grained distinction of arguments based upon the Dworkian dichotomy of principled and pragmatic arguments, and an even more nuanced

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18. 19.

20.

21. 22.

23. 24. 25. 26.

27. 28. 29. 30.

31. 32.

33.

approach building upon a Habermasian-inspired typology of legal, expressive, instrumental, and moral arguments, see Gerdes, Faist, and Rieple, 2007. Böckenförde, E. 1991. Die Entstehung des Staates als Vorgang der Säkularisation. In Recht, Staat, Freiheit, 92–114. Frankfurt: Suhrkamp. Cf. Faist, Thomas, J. Gerdes, and B. Rieple. 2004. Dual Citizenship as a PathDependent Process: Evidence from Sweden, the Netherlands and Germany. International Migration Review 38 (3): 913–44. See, Faist ed. 2007. Dual Citizenship in Europe: From Nationhood to Societal Integration. Aldershot, UK: Avebury. See also, Faist, T., and P. Kivisto, eds. 2007. From Unitary to Multiple Citizenship: Dual Citizenship in Global Perspective. Houndmills, UK: Palgrave Macmillan. Locke, J. 1988. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press. Risse, T., and K. Sikkink. 1999. The Socialization of International Human Rights Norms into Domestic Practices: Introduction. In The Power of Human Rights: International Norms and Domestic Change, ed. T. Risse, S. C. Ropp, and K. Sikkink, 1–38. Cambridge: Cambridge University Press. Cf. Chan, J. M. M. 1991. The Right to a Citizenship as a Human Right: The Current Trend towards Recognition. Human Rights Law Journal 12 (1–2): 1–14. Putnam, R. D. 1995. Bowling Alone: America’s Declining Social Capital. Journal of Democracy 6 (1): 65–78. Breuer, M., T. Faist, and B. Jordan. 1995. Collective Action, Migration and Welfare States. International Sociology 10 (4): 369–86. Cornelius, W. P., T. Tsuda, P. L. Martin, and J. F. Hollifield, eds. 2004. Controlling Immigration: A Global Perspective. Stanford, CA: Stanford University Press. For more details, see Joly, D., ed. 2003: Global Changes in Asylum Regimes. Houndmills, UK: Palgrave Macmillan. Arendt, H. 1951. The Origins of Totalitarianism. New York: Harcourt, Brace, Jovanovich. Benhabib, S. 2004. The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press. Risse, T. and K. Sikkink. 1999. The Socialization of International Human Rights Norms into Domestic Practices: Introduction. In The Power of Human Rights: International Norms and Domestic Change, ed. T. Risse, S. C. Ropp, and K. Sikkink, 1–38. Cambridge: Cambridge University Press. Cf. Global Commission on International Migration 2005. De Swaan, Abram. 1988. In Care of the State: Health Care, Education and Welfare in Europe and the USA in the Modern Era. Cambridge: Polity; Cf. Jordan and Düvell 2001. Cf. Faist, T. 2001. Social Citizenship in the European Union: Nested Membership. Journal of Common Market Studies 39 (1): 39–60.

134 Thomas Faist and Jürgen Gerdes 34. Faist, T., and A. Ette, eds. 2007. The Europeanization of National Immigration Policies: Between Autonomy and the European Unions. London: Palgrave Macmillan. 35. Carens, J. H. 1995/1987. Aliens and Citizens: The Case for Open Borders. In Theorizing Citizenship, ed. Ronald Beiner, 229–55. Albany: SUNY Press. 36. Shachar, A. 2003. Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws. Jean Monnet Working Papers, No. 2/2003. New York: New York University Law School.

CHAPTER 6

The Institutional Setting of Naturalization and Multiple Citizenship

A Comparison of German and Dutch Policies1 Anita Böcker and Dietrich Thränhardt

Citizenship as a Civil Right The ideas dominant in former times and to some degree even today about granting citizenship as a delimitation of the nation under aspects of public order, and that the state could proceed at its own discretion, does not correspond to the constitutional understanding of the democratic and social state under the rule of law.2

W

ith this key sentence, the German Constitutional Court established the right of an individual to inherit citizenship not only from the father but also from the mother. Quite firmly, it argued that citizenship is a civil right. As a consequence, dual citizenship had to be accepted in all cases of children from binational couples. Explicitly, the court also set this civil rights approach against the practice of the communist “Eastern bloc” to coordinate citizenship rules and to limit binational couples to only one citizenship for the whole family. In other judgments, the Constitutional Court spoke out about “children’s basic rights” (das Kind als Grundrechtsträger) and their “membership ties with the national community of the Federal Republic of Germany” (mitgliedschaftliche Bindung an die staatliche Gemeinschaft der Bundesrepublik Deutschland).3 This paradigmatic change was not limited to Germany. In the 1970s, most liberal democracies

136 Anita Böcker and Dietrich Thränhardt

moved away from traditional patriarchal concepts of the inheritance of citizenship only from the father and the dependence of the wife’s citizenship on that of her husband. Instead, concepts of equal rights were developed. Following this rights approach, most countries accepted a growing number of cases of dual or multiple citizenship from marriage partners with different citizenships. Only a few countries—for example, Japan—retained the mandatory obligation for children of such couples to choose the mother’s or the father’s citizenship upon coming of age. The traditional concept of one common citizenship for the whole family and the transfer of citizenship only through the father was a logical system in itself and conceived to minimize problems. It was at the core of international agreements, and was based on the principle that everybody should have one and only one citizenship.4 One of the most important promoters of this concept, the U.S. ambassador in Prussia and northern Europe in the 1860s, George Bancroft, had again and again condemned dual citizenship from a deep conviction that it was as immoral as bigamy.With Otto von Bismarck, he negotiated for emigrants to the United States to have a release from their Prussian citizenship5—against the emigrants’ wishes to keep their native citizenship in addition to becoming citizens of the United States.6 All in all, the United States concluded twentysix such agreements with European states.7 During the interbellum period, the League of Nations founded an international treaty system around the concept of “one and only one citizenship,” based on the expertise of Harvard University. After 1945, these concepts were taken up by the United Nations and the Council of Europe.8 Most of these treaty systems are still in force, but states respect them less and less. For the category of labor recruitment, the Council of Europe created a special agreement about the options of multiple citizenship.9 Former colonial powers made it easier to carry multiple citizenships, (for example, Britain with respect to Canada, Australia and New Zealand, and Spain with respect to eleven Latin American countries.)10 Russia did the same for other states from the Commonwealth of Independent States (CIS), after the dissolution of the Soviet Union.11 Many out-migration states, such as Turkey, Mexico, the Dominican Republic, Ecuador, Italy, and Columbia, have begun actively promoting multiple citizenship in recent years, trying not to lose their emigrating citizens and the flow of remittances. Canada allows multiple citizenship for immigrants as well as for emigrants. Still, however, multiple citizenship is often considered morally to be somewhat dubious. For example, the archaic formula of the U.S. oath of allegiance is reminiscent of the oath that Christian converts took in the Middle Ages. New Americans swear “to renounce and abjure absolutely and entirely all allegiance and fidelity to

The Institutional Setting of Naturalization and Multiple Citizenship 137

any foreign prince, potentate, state, or sovereignty.”12 In practice, however, other citizenships are tolerated in the United States. The husband- and the father-bound concept was in contradiction to human and civil rights, in particular the equality of women, as these rights have been identified in most constitutions and in the international declarations and pacts of human rights written following World War II. In most countries there has been a trend toward more naturalization and acceptance of multiple citizenship. In this chapter, we analyze and compare this trend in two countries, Germany and the Netherlands. The comparison between the two neighbors is interesting because naturalization rates in both countries differ markedly. For over a decade, the Dutch naturalization rates were among the highest in Europe (see Table 6.1). They were considerably higher than those of countries such as France and the United States, which are the focus of many other authors.13 The rates for Germany, on the other hand, have been at the lower end of those for the European league for a long time. In the 1990s, the German naturalization rates were much lower than they were in the nineteenth century. Moreover, if we want to evaluate the effects of toleration of dual citizenship on naturalization, we find an almost ideal experimental situation in the Netherlands, as the Dutch changed their policy twice during the 1990s. After 1992, immigrants who applied for naturalization were no longer required to renounce their foreign citizenship. In 1997, however, the renunciation requirement was reinstated. We will examine the effects of these changes in policy on immigrants’ propensity for naturalization. The German/Dutch comparison is also intriguing because of the close relationship between the two countries. Frequently, the Dutch legislator referred to the German legislation in order to legitimize amendments. Dual Citizenship and Naturalization in Germany The German constitution offers German citizenship to several important groups, even if they hold other citizenships. Former German citizens who have been persecuted by the Nazi government and these citizens’ offspring have a right to regain their citizenship (116 II Basic Law). Ethnic Germans also receive German citizenship if they have found refuge in Germany (116 I Basic Law). Both these constitutional guarantees are valid without reference to other citizenships. In the case of emigrants persecuted by the Nazis, it was evident that this guarantee would result in dual or multiple citizenships. Possible hesitancy about accepting multiple citizenship for this group was quashed unanimously in the main committee of the Constitutional Council. This was a discussion “on the highest ethical level,” and several committee members who had themselves been persecuted took part in the debate,

138 Anita Böcker and Dietrich Thränhardt Table 6.1 Naturalization rates in selected European countries, 1990–2000 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Ø

Netherlands Sweden France Belgium UK 2.0% 3.7% 2.5% 1.0% 3.2% 4.2% 5.7% 2.7% 0.9 3.4% 4.9% 5.9% 2.7% 5.0% 2.4% 5.7% 8.5% 2,8% 1.8% 2.3% 6.3% 6.9% 3.7% 2.8% 2.2% 9.4% 6.0% 2.7% 2.8% 2.0% 11.4% 4.8% 3.3% 2.7% 2.2% 8.8% 5.5% 3.5% 3.5% 1.9% 8.7% 8.9% 3.8% 3.8% 2.6% 9.4% 7.6% 4.5% 2.7% 2.5% 7.6% 8.9% 4.7% 6.9% 3.7% 7.1% 6.6% 3.3% 3.1% 2.6%

Austria Switzerland Germany* 2.1% 0.8% 0.4% 2.3% 0.8% 0.5% 2.0% 0.9% 0.6% 2.1% 1.0% 0.7% 2.2% 1.1% 0.9% 2.0% 1.3% 1.0% 2.2% 1.4% 1.2% 2.2% 1.4% 1.1% 2.4% 1.5% 1.4% 3.3% 1.5% 2.0% 3.2% 2.0% 2.5% 2.4% 1.3% 1.1%

* Naturalizations of Aussiedler (ethnic Germans) not included. Source: H. Waldrauch and D. çinar, “Staatsbürgerschaftspolitik und Einbürgerungspraxis in Österreich,” in Österreichischer Migrations und Integrationsbericht, ed. H. Fassmann and I. Stacher (Vienna: Drava, 2002).

among them Communist Party member Heinz Renner.14 Christian Democratic Union (CDU) legal expert Hans von Mangoldt argued that it would “not be a problem if there would be a dual citizenship sometimes.”15 Up to this day, German citizenship is handed out in these cases. This provision is important particularly in Israel, where there are some sixty thousand German-Israeli citizens,16 but it has almost no bearing in the United States or Canada. For members of the second group—ethnic Germans who had come to Germany—dual citizenship was not important during the cold war, as they had no inclination to go back to the communist realm voluntarily. It was only after the end of the cold war that Polish and Russian citizenship would become attractive again. The German government did not limit citizenship possibilities for this groups in any way. One additional opportunity arose in 1989 with respect to former German citizens and their offspring in former German territories in Poland, particularly in Upper Silesia. Under German law, particularly the constitutional provision that the government cannot take away citizenship from a German citizen (another reaction of the originators of the constitution against arbitrary Nazi practices), this group could apply for German passports without giving up Polish citizenship. By 2003, 280,000 German passports had been issued under this provision. None of these developments has been contentious in Germany. The public was not aware of them, and there was no controversy about either the German-Israeli or the German-Polish dual citizens. The primary decision

The Institutional Setting of Naturalization and Multiple Citizenship 139

about ethnic Germans who had been expelled to Germany at the end of World War II had already been made by the occupation authorities in the postwar years as follows: “You will require the persons of German extraction transferred to Germany be granted German nationality with full civil and political rights,” the British government instructed its military authorities in Germany.17 The Constitutional Council could only second this decision. Reacting against the ongoing discrimination of ethnic Germans in the Communist countries, German policy aimed to assist as many Germans as possible to leave Poland, Romania, and the Soviet Union. This was achieved by massive financial transfers (Germany paid twelve thousand Deutsche Mark (DM) per person to the Romanian government), and giving a credit of one billion DM to the Polish government with the clear expectation that it would not be repayed. After the end of the cold war, these policies were discontinued step by step. They were “politically minded” and were terminated when the political situation changed. In the 1990s, the German government reversed its policies and began to use economic incentives to encourage ethnic Germans to remain in their countries of residence.18 In all these contexts, there was no discussion about dual citizenship. Directly after the war, the naturalization of non-Germans was rather irrelevant. Germany was destroyed materially as well as morally. Most foreigners living in Germany were under Allied protection. The “Displaced Persons,” those who did not want to return to their countries of origin as they were now communist, stayed in Germany only if they could not leave for the United States, Canada, Australia, or Israel due to illness or because they had developed ties to Germany (through marriage, for example). After 1955, the recruitment of foreign workers began under the expectation of their eventual return to the countries of origin. It was particularly the governments of the origin countries and the “guest workers” themselves who held fast to the “illusion of return.” However, the issue of permanent immigration was put on the agenda when it became clear that most of the migrants had settled in Germany, yet every child of migrant parents was born as a foreign citizen. Heinz Kühn, the first ombudsman for foreigners, proposed naturalization particularly of the “second generation,” which was not likely to leave the country. It was not clear to the public that the resulting controversy around Kühn’s suggestion was an echo of the debate of 1913, when Social Democrats and Liberals opted for ius soli (access to citizenship based on the right of the soil) in Germany, but did not have a majority in the Reichstag.19 The concept of naturalizing the children was lost in the rising controversy about reducing the number of Turks in Germany,20 with its high point the “return promotion law” of 1983–84. This was a scheme that gave financial

140 Anita Böcker and Dietrich Thränhardt

incentives to non–European Union (EU) immigrants who agreed to return to their home countries for good. The law was corrected some years later, however, when parliament invited the re-return to Germany of young Turks who had accompanied their parents in the move to Turkey but had not been able to integrate there.21 It was not only the conservatives who criticized Kühn for his concept of naturalization. It was also unpopular among many immigrants, who expressed concern that young people would become alienated from their parents and their countries of origin. A big step toward naturalization was the foreigners’ law of 1991, with its focus on the naturalization of immigrants who had been recruited between 1955 and 1973. Originally, the law was intended to apply only for a few years, but it was made permanent in 1993, as part of the “asylum compromise,” a larger package of immigration reform between the government and the main opposition party. From then on, naturalization figures began to rise, although with extreme differences due to the implementation. Some Länder (federal states of Germany) and local governments tried to ease naturalization, providing information about the legal provisions to the potential applicants. Others tried to minimize the effects of the law and hence minimize the number of naturalization applications. But most were rather indifferent. One important factor was the length of the administrative process. Even within one Land (federal state), the process could take as little as a few weeks, or as long as several years.22 In Berlin, where ombudsman Barbara John started a campaign to persuade immigrants to apply for naturalization, and where the authorities generously applied the clause that made it possible to accept dual citizenship if the home country refused to let its citizens leave without having served in the army, the naturalization rates of Turkish immigrants rose rapidly. In most other Länder, cities, and counties, there was not much acceptance of dual citizenship. Looking at Germany countrywide, the discrepancy between the remarkably liberal naturalization law and the persistently low rates of naturalization is startling. The law of 1991 did not require a language test and, with its fee of one hundred DM, was at the lower end of the international scale—a far cry from the Swiss fees of tens of thousands of Swiss Francs. For young applicants who had no income of their own, the fee was waived.23 However, public focus in 1990–91 was on reunification, and later on the large numbers of asylum seekers, the restrictions of asylum rights, and xenophobic arson attacks. The consequence was that most immigrants in Germany were not informed about the liberal character of the law. When our research team asked about naturalization in 1993, immigrants’ three most frequent answers were (1) fees were too high, (2) the process was too complicated, and (3) they

The Institutional Setting of Naturalization and Multiple Citizenship 141

had not thought about it (See Figure 6.1). Even more disinformed were the international media and many researchers, partially caused by the great success of Rogers Brubaker’s 1992 book on naturalization in France and Germany and the simplistic reception of it.24 Again and again authors identified Germany with “the right of blood.” One late example is Stephen Castles who in 1999, eight years after the new law had come into force, and fees were lower than in most other countries, wrote that Germany demanded “high fees.”25 It was only in 1999 that the naturalization rate rose to 2 percent and in the following year to 2.5 percent (Aussiedler, or ethnic Germans, not included) At that time, naturalization had become a hot political issue. After the “RedGreen” coalition won the federal elections in 1998, it made an extremely liberal naturalization procedure a central theme of its reform agenda. The oppositional CDU, shortly after its historic defeat, took the chance to politicize the issue in the Land elections in Hesse, and started a campaign with xenophobic undertones against “double citizenship,” arguing that it was unfair that Germans had only one and Turks would have two citizenships, and that it would hinder their integration. With this campaign, the CDU won the Land elections at the last minute and changed the majorities in the federal chamber. Everybody was talking about naturalization for some months, and the entire population—including the immigrants—knew that there had been a change and that now naturalization mattered. Compared with the old law of 1991, the new law actually made naturalization more difficult in some respects. Speaking and understanding German were now requirements, and the fees were raised.26 The higher fees were intended to cover local governments’ costs and thus help to remove administrative barriers. The introduction of ius soli for children born in Germany with one parent who had been in the country for a minimum of eight years was a historic breakthrough. In 2002, 38,000 children obtained German citizenship in this way, corresponding to an additional naturalization rate of 0.6 percent. Another 41,000 children were born as foreigners. Still, German naturalization rates remained much lower than rates in the Netherlands. In 2002, 154,547 individuals obtained naturalization, or 2.1 percent of the 7.3 million foreigners in the Germany. The main reason for these low numbers was the nonacceptance of multiple citizenship. In a survey conducted in 2001, the wish to retain the former citizenship was by far the most common motive given by foreigners for not beginning the naturalization process. It was mentioned by 80 percent of EU citizens, 75 percent of the Turks, and 60 percent of citizens of the former Yugoslavia. In the same survey, reasons pertaining to the

142 Anita Böcker and Dietrich Thränhardt application has been filed

1.1

don’t want to become a German

1.9 5.3

no use

7

did not know that it is possible financial disadvantages

9.4

conditions not fulfilled

13.1

want to remain [Turk, Spaniard...]

15.4

had not yet considered it

18.4 19.8

too costly procedure

37.4

too complicated procedure 0

5

10

15

20

25

30

35

40

Figure 6.1 Why foreigners who might otherwise be interested in obtaining German citizenship have not yet applied for naturalization (1993 percentages) Source: Dietrich Thränhardt et al., Ausländerinnen und Ausländer in Nordrhein-Westfalen. Die Lebenslage der Menschen aus den ehemaligen Anwerbeländern und die Handlungsmöglichkeiten der Politik (Düsseldorf: Ministerium für Arbeit, Gesundheit und Soziales 1994), Landessozialbericht, Vol. 6, p. 236.

complexity or other elements of the naturalization procedure itself were cited much less frequently.27 In some cases, Germany does accept multiple citizenship. Greek citizens, for example, are not required to renounce their Greek citizenship upon naturalization because Greece does not allow its citizens to renounce their Greek citizenship. Exceptions may be made for other categories as well (for example, for persons who have received asylum in Germany). For Italian citizens in Germany, dual citizenship was possible as of December 22, 2002, with a special agreement between both countries. France and Germany proclaimed a Franco-German citizenship early in 2003—a symbolic act meant to intensify the special relationship between both countries, the legal content of which has still to be explained. Dual Citizenship and Naturalization in the Netherlands In 1892, the Netherlands replaced ius soli with ius sanguinis (access to citizenhsip based on the right of the blood). The main argument for this change was that ius soli, which had been in force since 1850, resulted in too many cases of dual citizenship. Particularly, children of German immigrants obtained both Prussian and Dutch citizenship as a consequence of Prussian

The Institutional Setting of Naturalization and Multiple Citizenship 143

ius sanguinis and Dutch ius soli. Another argument was that people born in the country “by chance” lacked identification.28 Such change was part of the nationalistic climate at the end of the nineteenth century in Europe and America, directed toward defining and delimitating the nation. Whereas ius soli is based on the place where the mother gives birth, ius sanguinis (a patre) is based on the father’s nationality. The law of 1892 was in place until 1984. Ius soli was continued only for stateless children. In 1953, this rule was extended to all children of the “third generation,” children born to foreigners who themselves had been born in the Netherlands. The main argument for this extension was that people living in the Netherlands who were not different from other Dutch people should also have Dutch citizenship.29 Multiple citizenship was tolerated in such cases. It was only in 1985 that gender equality was introduced. From that year on, children inherited not only the father’s citizenship but also the mother’s—again with the possibility of holding more than one citizenship.30 At the same time, the rule according to which foreign women who married Dutch men automatically acquired Dutch citizenship was abolished. Dutch lawmakers did not want to give this right to foreign men marrying Dutch women. The “fake marriage” was a condition attributed by parliamentarians only to foreign men. One senator expressed his concern about the marriage market in this way: “The attractiveness of Dutch women for large groups of strangers might be raised too much.”31 In this discussion, a reference was made to Germany, where the automatic right of citizenship for foreign women marrying German men had been abolished nine years earlier. The law of 1985 also made it possible for the second generation, children born to foreigners in the Netherlands, to “opt” for Dutch citizenship by signing a simple declaration—a system that has a long tradition in France. The right of option must be exercised between the ages of eighteen and twentyfive. Applicants are not required to renounce their foreign citizenship. For the first generation, the renunciation requirement remained in force, but the procedure was simplified. The whole change was part of the new minority policy, the result of pragmatic compromises between all the larger Dutch parties.32 Easier naturalization was seen as a means to further the integration of immigrants. The number of naturalizations did rise, but not in the two largest target groups, the Turks and the Moroccans. In a survey conducted in 1991, twothirds of the Turks said that they were not prepared to renounce their Turkish citizenship. Remarkably, many Moroccans said the same, although the Dutch authorities already accepted dual citizenship for Morrocans because of the

144 Anita Böcker and Dietrich Thränhardt

Moroccan state’s principle not to release its citizens from citizenship. The level of education about naturalization was obviously very low.33 In 1991, the new coalition of Christian Democrats (CDA) and Social Democrats (PvdA) decided to abolish the renunciation requirement. The Scientific Council for Government Policy had advised the government to do so.34 Again, the new policy was the result of a compromise. The Christian Democrats consented to multiple citizenship in exchange for the Social Democrats’ dropping their idea of voting rights for settled foreigners at all levels. After the Second Chamber voted in favor of tolerating multiple citizenship, the minister of justice introduced this policy with immediate effect, pending the necessary amendment of the nationality law. From 1992 until 1997, multiple citizenship was accepted for all immigrants applying for Dutch citizenship. The Netherlands became a real naturalization paradise in these years. The naturalization rate rose from year to year, reaching a high point of 11.4 percent in 1996, the last year of the toleration of multiple citizenship in principle. By that time, however, opposition against multiple citizenship for immigrants had grown, and the law that would have formalized the policy of acceptance of dual nationality was blocked by a center-right majority in the Senate at the end of 1996. The parties concerned (CDA and the liberal-conservative People’s Party for Freedom and Democracy (VVD) saw the rise in the number of naturalizations as proof that naturalization had become too easy. Again, the legal situation in Germany was an additional argument: a VVD senator pointed out that in Germany there was no such generosity either.35 The renunciation requirement was reinstated in 1997. In the following years, the naturalization rates went down, but remained higher than in other countries. Moreover, multiple citizenship was still accepted in most cases. This can be explained by the wide-ranging exceptions from the renunciation requirement. These included nationals of states who do not allow their citizens to give up their citizenship, political refugees, cases of economic hardship if the other citizenship is given up, cases where the other state enforces military service before allowing its citizens to renounce citizenship, people born in the Netherlands, and people who were married to a Dutch partner.36 All in all, these groups still made up for more than 62 percent of all cases of naturalization in 1997–2002.37 Compared with those of Germany, the regulations in the Netherlands were still more liberal. After the government had withdrawn the bill allowing dual nationality, a new bill to amend the nationality law was drawn up. It was accepted in 2000 and entered into force in 2003. The amendments make naturalization more difficult. Applicants are subjected to a written naturalization test, by which their knowledge of Dutch language and Dutch society is determined. Since

The Institutional Setting of Naturalization and Multiple Citizenship 145

the introduction of the test in April 2003, the number of applications for naturalization has dropped markedly.38 Moreover, the debate on dual nationality has not yet closed. The previous center-right government introduced a bill that, if passed, will reinstate the renunciation requirement for the foreign partners of Dutch citizens and for second-generation immigrants—two categories for which, according to the Second Protocol to the Strasbourg Convention, naturalization should be made easier. Both the naturalization test and the new proposals to limit dual nationality are expressions of a paradigmatic change in the Dutch debate on naturalization and citizenship. From a means to further integration, naturalization has come to be regarded as the crown in a successful process of integration. This change is part of a new vision on immigrant integration. Already during the 1990s, the minority policy had become more and more contested. It was pictured as too liberal and as “pampering” ethnic minorities without making demands upon them. Since the emergence of the populist and xenophobic Fortuyn party, there is a broad consensus that the Dutch integration policy has been a failure.39 Effects on Naturalization and the Incidence of Multiple Citizenship In both countries, the top ten naturalization groups are dominated by larger non-EU immigrant groups (see Table 6.2). In the Netherlands in 2000, Moroccans, Turks, Bosnians, Iraqis, and Surinamese accounted for over half of all naturalizations. In Germany, Turks accounted for 44 percent of all naturalizations in 2000. Iranians were the second largest naturalization group and Yugoslavians were the third. In 2002, Iranians were again the second largest group in Germany, with 13,026 persons naturalized, after the Turks with 64,631. The third and fourth largest groups were immigrants from the former Yugoslavia (8,375) and from Afghanistan (4,750). In the Netherlands, multiple citizenship is accepted in most cases of naturalization.In Germany, however, where politicians have expressed much stronger aversions to multiple citizenship, it is nevertheless accepted in many cases (see Table 6.2). In both countries we find large differences between groups. These differences are partly explained by the nationality laws of the countries of origin. For example, as Iran and Morocco do not release their citizens, both Germany and the Netherlands tolerate multiple citizenship in these cases. On the other hand, the incidence of multiple citizenship among naturalized Iraqi, Somali, and Surinamese immigrants is low because these immigrants automatically lose their original citizenship upon naturalization. With regard to the incidence of multiple citizenship, Dutch statistics are more informative than German ones because they include information about

146 Anita Böcker and Dietrich Thränhardt Table 6.2 Large naturalization groups in Germany and the Netherlands and the acceptance of multiple citizenship in 2000 Naturalizations in Germany

Naturalizations in the Netherlands

Multiple citizenship tolerated absolute in %

Country of original citizenship

Total

Turkey Iran Yugoslavia

82,861 23,921 14,410 14,368 9,776 8,696

28.9 99.7 90.0

Lebanon 5,673 4,610 Morocco 5,008 4,263 Afghanistan 4,773 4,411 Sri Lanka 4,597 715 Russian Federation 4,583 1,867 Vietnam 4,489 2,633 BosniaHerzegovina 4,002 500 Total 186,688 83,856

Country of original citizenship Total

Multiple citizenship tolerated absolute in % 99.9 99.9

81.3 85.1 92.4 15.6

Morocco 13,471 13,464 Turkey 4,708 4,704 BosniaHerzegovina 2,646 2,629 Iraq 2,403 192 Surinam 2,008 210 Somalia 1,634 152 Iran 1,375 1,363

40.7 58.7

China 1,002 Afghanistan 945

228 927

22.8 98.1

12.5 44.9

Yugoslavia 924 919 Total 50,120 38,023

99.5 75.9

99.4 8.0 10.5 9.3 99.1

Sources: Die Beauftragte der Bundesregierung für Ausländerfragen, 5. Bericht der Beauftragten der Bundesregierung für Ausländerfragen über die Lage der Ausländer in der Bundesrepublik Deutschland (Berlin: 2002), 414; Centraal Bureau voor Statistiek, The Hague.

dual and multiple citizenship. After the reinstatement of the renunciation requirement, the number of dual and multiple nationals continued to increase: from 607,900 in 1998 to 893,500 in 2003. The rate of increase in the number of foreign residents was much slower: from 680,000 in 1998 to 700,000 in 2003. Table 6.3 shows the citizenships that Dutch citizens most often hold in addition to their Dutch citizenship. The Turkish-Dutch and the Moroccan-Dutch are by far the largest groups of dual nationals. The data also show that among immigrant groups from outside the EU, the number of dual nationals is higher than the number of foreigners. The discrepancy is particularly large among refugee groups. Among most EU immigrants, on the other hand, the number of foreigners is higher than the number of dual citizens. We do not know, however, the number of immigrants who naturalized without retaining their original citizenship.

The Institutional Setting of Naturalization and Multiple Citizenship 147 Table 6.3 Dual citizens and foreigners in the Netherlands, January 1, 2003 (thousands) Turkish Moroccan German British Belgian Yugoslav Italian Iranian Bosnian Polish French Surinamese Total

Dual citizens* 234.5 189.5 44.2 41.9 28.9 23.0 17.5 15.6 15.3 15.0 14.3 13.4 893.5

Foreigners 100.3 97.8 56.1 44.1 26.3 6.4 18.7 2.5 2.8 6.9 14.5 8.6 700.0

Dual citizens/foreigners 2.3 1.9 0.8 1.0 1.1 3.6 0.9 6.2 5.5 2.2 1.0 1.6 1.3

* Dutch citizens with at least one additional citizenship Source: Centraal Bureau voor Statistiek, The Hague.

Naturalization and multiple citizenship were the top-priority issues in German politics for some months in 1998–99. Still, the results of the reform are modest, compared to those in the Netherlands. If we look for the absolute naturalization figures, Germany had a higher naturalization rate than all other European countries in 2000. However, with 7.3 million foreigners, its potential for naturalization was also very high. Even in 2000, the Dutch naturalization rate was three times higher than that of Germany (see Table 6.1). On a positive note, naturalization rates in Germany now match the nineteenth-century rates,40 which, by and large, the Netherlands had maintained. Far-reaching is the introduction of ius soli for children born in Germany with one parent who has lived in Germany for at least eight years. Here, German law is more liberal than Dutch law. This is not visible in the naturalization statistics, but it has ended the problematic statistical rise in the number of foreigners because of the birth of children. However, the law is burdened with the stipulation that the children must choose either German citizenship or their parents’ citizenship between eighteen and twenty-three years of age. It is to be expected that implementing this process after 2018 (when the first of these children born to foreign parents will have their eighteenth birthday) will not be easy. Either an overly complex and overly expensive control apparatus will have to be put in place or the law will be changed to accommodate more tolerance for multiple citizenship. The Dutch developments seem to indicate that a decisive breakthrough in naturalization rates cannot be achieved without tolerating applicants’

148 Anita Böcker and Dietrich Thränhardt

retention of citizenship of their country of origin. By 2000, two-thirds of the immigrants from Turkey and half of those from Morocco had acquired Dutch citizenship. Of 104,000 Turks who received Dutch citizenship between 1995 and 1999, only 60 gave up their former citizenship. Of 65,000 Moroccans, only 20 did so.41 Similar scenarios in countries such as the United States and France point to similar trends.42 A parallel German example was the Berlin policy to tolerate dual citizenship if the Turkish authorities did not allow the applicant to renounce Turkish citizenship without having served in the army under the law of 1991.43 It is interesting to look more closely at the naturalization rates of the Turks in both countries (see Figure 6.2). In the years 1990–2000, an average of 9.4 percent of the Turkish population in the Netherlands was naturalized each year. In Germany, the rate was only 1.9 percent. About 70 percent of the Turkish immigrants (first and second generation) in the Netherlands have Dutch nationality now. In Germany, the percentage of Turks with German nationality is much lower: about 20 percent.44 In the Netherlands, the naturalization rate of Turks had begun to rise already at the beginning of the 1990s, when measures were taken to shorten the procedure. It went up steeply during the era of tolerance, and reached a climax in 1996, with 20 percent of all Turkish immigrants naturalizing within one year. When the renunciation requirement was reinstated, the rate dropped again to 5 percent. Despite the stricter policy, practically all Turks who become naturalized still retain their Turkish nationality—an indication that Turks who cannot retain their Turkish citizenship do not naturalize. We find the same pattern in Berlin: naturalization went down when authorities once again began to enforce renunciation of Turkish citizenship. The policy with regard to renunciation is, however, not the only important factor. This becomes clear when we examine the naturalization rates of two other categories of immigrants: EU citizens and refugees. The Dutch policy changes hardly affected these groups (see Table 6.4). EU citizens appear to have no inclination to naturalize: even in the Dutch naturalization paradise of the mid-1990s, their naturalization rates remained very low. The same goes for U.S. and Japanese immigrants. These are people from wealthy and safe countries, who can trust in the citizenship of a reliable country and feel no need to naturalize. With a passport from such a country, traveling is easy, and one can freely develop his or her economic, social, political, and cultural abilities. For immigrants from these countries, a second passport of another wealthy and safe country has hardly any practical advantage. On the other hand, many refugees apply for naturalization as soon as possible and have no desire to keep the citizenship of their country of origin, as

The Institutional Setting of Naturalization and Multiple Citizenship 149 25.0% 20.0% 15.0% 10.0% 5.0% 0.0% 1990 1991 1992

1993 1994 1995

1996 1997 1998

1999 2000 2001

2002 2003

Figure 6.2 Naturalization rates of Turks in Germany and the Netherlands, 1990–2003

they consider every contact with state authorities dangerous for themselves or their relatives. Such groups naturalize at very high rates in the Netherlands, and the question of multiple citizenship does not make much difference (see Table 6.2). The naturalization rates of groups such as the Ethiopians, Iranians, Somalis, Sudanese, Syrians, and Vietnamese are clearly above average. For some of these groups, naturalization entails automatic loss of citizenship. We found the same tendency in our poll in Germany in 1993, where 5 percent of the foreigners wanted German citizenship only. It was remarkable that the German naturalization system of that time did not even naturalize these 5 percent—people who wanted only to be Germans.45 One impressive example for the willingness to naturalize is apparent in the high naturalization rates of Iranians in Germany after the German government revoked the German-Iranian treaty that had made any naturalization of an Iranian citizen in Germany dependent on the consent of the Iranian government. This treaty had functioned as an invitation to the Iranian authorities to check the identity of the refugees, to obtain their address, and even to pressure their relatives in Iran. As in the Netherlands, the naturalization rates of EU citizens in Germany are particularly low. This is true even for the Greeks, who can get German citizenship in addition to their Greek citizenship. Toleration of multiple citizenship thus does not hold much importance for people who are very comfortable with their citizenship or for people who feel they are extremely unsafe. It is the large group between these extremes for whom multiple citizenship is an important factor in their willingness to naturalize. Particularly, it is important for immigrants from outside the rich EU—North America and the Japan triangle—who want to retain links to

150 Anita Böcker and Dietrich Thränhardt

their country of origin, and whose life plan may include returning. Turkish immigrants are a good example. It is evident that Germany has limited her naturalization policy for this large immigrant group by not tolerating multiple citizenship. Many older Turkish immigrants live partly in Germany or the Netherlands, and partly in Turkey—not much different from Dutch or Germans who have one foot in Mallorca and one at home. As Turkish citizens in Germany and the Netherlands enjoy legal security and protection under the Turkish association with the EU, and have full access to the social security systems, they do not feel an imminent need to naturalize. This contrasts sharply with the situation in the United States, where noncitizens are excluded from some important social benefits under the Welfare Reform Act. The entry into force of this act, in 1996, resulted in a strong increase in the number of naturalizations.46 Results of the Comparison What are the results of our comparison? In regulating problems of multiple citizenship, each country treats immigrants from various categories differently. When women were given equal rights to transmit their citizenship to their children, that this would cause multiple citizenship was not considered a problem. The same tolerance was extended toward special groups such as those persecuted by the Nazi regime, the expellees and the Aussiedler on the German side, and Dutch emigrants abroad and children born in the Netherlands to foreign parents on the Dutch side. Immigrating foreigners were treated differently in both countries. The idea to stimulate naturalization of foreigners emerged at the same time in both countries. In the Netherlands, it was implemented step by step, was a great success in quantitative terms, and led to a pragmatic regime with farreaching tolerance for multiple citizenship. In Germany, it led to (sometimes extreme) political polarization, and to a solution that requires a lot of bureaucratic organization, leads to long queues and waiting times, and produces quite limited results in quantitative terms.47 Even the far-reaching reform toward ius soli has these limitations, and will likely be a big bureaucratic headache after 2018. As in other policy fields, we find a high level of pragmatic consensus and compromise between the political forces in the Netherlands and deep ideological polarization in Germany. Recent developments in the Netherlands, however, can be seen as a break with tradition. The debate on naturalization and multiple citizenship has become more public and more politicized. The far-reaching toleration of the naturalized citizens’ old citizenship was decisive for the broad success of naturalization in the Netherlands, although

The Institutional Setting of Naturalization and Multiple Citizenship 151 Table 6.4 Naturalization rates1 of selected immigrant groups2 in the Netherlands, 1996 and 2001 Country of original citizenship

1996

2001

Syria Ethiopia Vietnam Romania Suriname Iran Turkey Somalia Sudan (Former) Yugoslavia Morocco Iraq

49% 39% 35% 35% 29% 23% 20% 17% 13% 11% 10% 9%

14% 13% 12% 10% 24% 27% 5% 24% 24% 9% 11% 27%

Average (all foreigners)

11%

7%

United States UK Portugal Italy France Belgium Germany Spain Norway Ireland Denmark Sweden Japan

4% 3% 3% 2% 2% 1% 1% 1% 1% 1% 0% 0% 0%

1% 1% 1% 1% 1% 1% 1% 1% 0% 0% 0% 0% 0%

1

Including options. Including the largest nationality groups as well as the groups with the highest rates and the groups with the lowest rates in 1996 and 2001. Source: CBS. 2

the approach was restricted in 1997. Certain groups, particularly Turks, have a strong desire to retain their citizenship. It will be interesting to see if this tendency continues intergenerationally. One consequence of the high naturalization rates in the Netherlands during the 1990s is the high number of politicians and members of parliament with immigrant backgrounds, not only in the parties of the left and center but also in the establishment VVD and even in the xenophobic Pim Fortuyn List (Lijst Pim Fortuyn). In the

152 Anita Böcker and Dietrich Thränhardt

previous Second Chamber (elected in 2003), 10 of the 150 seats were occupied by naturalized (first-generation) immigrants. One of them was Ayaan Hirsi Ali, a vocal critic of Islam. A political controversy about her Dutch citizenship48 led to her resignation from parliament, and indirectly to the fall of the ruling center-right government coalition. However, there is one weakness in the Dutch success story. After a large number of immigrants have become citizens, ethnic and cultural border lines are drawn more sharply. They are reified and dramatized, and membership of immigrant groups in the Dutch nation is thus qualified. In recent years, it has become normal for public discourse to distinguish between “white” and “black” schools, streets, or living quarters.49 Citizenship has also been devalued. For example, since the 1990s, Dutch citizens who apply for family reunification have to meet the same income requirements as foreign applicants. A new act, which came into force in January 2007, requires both foreigners and certain categories of naturalized Dutch to enroll in language and integration courses.50 Moreover, there have been proposals to revoke Dutch citizenship from dual nationals who have become undesireable citizens. This was first suggested in 2002 by then Minister of Immigration and Integration Hilbrand Nawijn. Nawijn wanted to make it possible to expel MoroccanDutch juveniles who had committed criminal offences. Although his suggestion was rejected, similar proposals were put forward again and again in other debates (for example, with respect to imams who had expressed homophobic or antifemale views). The previous center-right government introduced a bill that, if passed, will make it possible to take Dutch citizenship away from dual nationals convicted for terrorism. Naturalization becomes more important as the gap between living standards in rich and poor countries widens, and as differences in the level of security and human rights guarantees in both the sending and the receiving countries become more pronounced. With fears of terrorism rising in the United States and, to a lesser degree, in Europe, naturalization can safeguard immigrants. On the other hand, the relevance of citizenship and naturalization decreases within a stable bloc like the European Union. Thus, for instance, Italian citizens in Germany do not feel any pressure to naturalize. Somewhat similar is the relationship between Canada and the United States. In such situations, naturalization comes rather intergenerationally—a situation that makes ius soli or an option right upon maturity quite important. The interest in various citizenships decreases when the instrumental surplus is low, and identity conflicts are not related to citizenship. In an ideal world of Kantian republics, citizenship in one or the other state would be rather irrelevant, similar to the membership in the states, Länder, or cantons in

The Institutional Setting of Naturalization and Multiple Citizenship 153

federal countries. This, however, is not the reality for the majority of human beings today. Notes 1. Parts of this contribution were published originally in the Journal of International Integration and Immigration 7 (1). 2. “Die früher vorherrschende und zum Teil noch jetzt anzutreffende Vorstellung, es handele sich bei der Zuerkennung der Staatsangehörigkeit um eine Abgrenzung des Staatsvolkes unter ordnungspolitischen Gesichtpunkten, die der Staat nach seinem Ermessen . . . vornehmen könne, entspricht nicht dem Verständnis des demokratischen und sozialen Rechtsstaats im Sinne des Grundgesetzes.” (Bundesverfassungsgericht 21.5.1974. Mitglieder des Bundesverfassungsgerichts, eds., Entscheidungen des Bundesverfassungsgerichts, Vol. 37, Tübingen, Germany, 1975: 239). 3. Bundesverfassungsgericht 21.5.1974. Mitglieder des Bundsverfassungsgerichts: 252ff. 4. “It is in the interest of the international community to secure that all members should recognize that every person should have one nationality and should have one nationality only” (Völkerbund, Präambel, Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, April 12, 1930, Genf, League of Nations Treaty Series 89). 5. See, Koslowski, R. 2000. Migrants and Citizens: Demographic Changes in the European States System (Ithaca, NY: Cornell University Press 2000), 75–77; Handlin, L., and G. Bancroft. 1984. The Intellectual as Democrat (New York: Harper and Row), 279. 6. See, Hailbronner, K. 1992. Einbürgerung von Wanderarbeitnehmern und doppelte Staatsangehörigkeit (Baden-Baden, Germany: Nomos), 40. 7. Bar-Yaakov, N. 1961. Dual Nationality (London: Stevens), 193. 8. International Law Commission Yearbook 1954, section 42, p. 48; Council of Europe, Convention on the Reduction of Cases of Multiple Nationality, European Treaty Series Nr. 43, Strasbourg, France, 1963. 9. Council of Europe, European Convention on Nationality, European Treaty Series, Nr. 166, Strasbourg, France, 1997. 10. Council of Europe, European Bulletin on Nationality DIR/JIR 97, Strasbourg, France, March 1997. 11. Council of Europe 1997, p. 151. However, on April 10, 2003, the presidents of Russia and Turkmenistan signed an agreement to terminate the dual citizenship agreement. Dual nationals in Turkmenistan had to decide within two months on one citizenship. Cf. Panik bei Doppelbürgern in Turkmenistan: “Hat Moskau seine Landsleute verkauft?” in Neue Zürcher Zeitung 105, May 8, 2003. 12. Koslowski, R. 2003. “Challenges of International Cooperation in a World of Increasing Dual Nationality.” In Rights and Duties of Dual Nationals: Evolution

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13.

14.

15. 16. 17.

18.

19.

20. 21.

22.

23. 24.

and Prospects, ed. K. Hailbronner and D. Martin (The Hague: Kluwer Law Publishers), 13. See, Brubaker, R. 1992. Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press); Hagedorn, H. 2001. Wer darf Mitglied werden? Einbürgerung in Deutschland und Frankreich im Vergleich (Opladen, Germany: Leske). Hinken, G. 1998. “Die Rolle der Staatsangehörigkeit bei der Konzeption des Grundgesetzes”, in Thränhardt, D. (ed.), Einwanderung und Einbürgerung in Deutschland (Münster and London: Lit): 247. He refers to Parlamentarischer Rat, Stenographische Berichte über die Verhandlungen des Hauptaussschusses (Bonn: Parlamentarischer Rat, 1950), 39. Sitzung, 14.1.1949: 485. Parlamentarischer Rat, p. 487, as cited by Hinken 1998, 247. Information obtained from the German embassy in Israel. Public Record Office, Foreign Office 371/85268/C2972, p. 11ff. See also Josef Foschepoth. 1996. “Potsdam und danach. Die Westmächte, Adenauer und die Vertriebenen.” In Die Vertreibung der Deutschen aus dem Osten:Ursachen, Ereignisse, Folgen, ed. Wolfgang Benz (Frankfurt: Fischer); Hans W. Schoenberg. 1970. Germans from the East: A Study of Their Resettlement and Subsequent Group History (The Hague: Martinus Nijhoff ). von Koppenfels, A. K. 2001. “Politically Minded: The Case of Aussiedler as an Ideologically Defined Category.” In Migration in erklärten und unerklärten Einwanderungsländern, ed. U. Hunger, K. Meendermann, B. Santel, and W. Woyke (Münster, Germany: Lit, 2001), 89–120. For a comprehensive interpretation of the discussion, see Hagedorn 2001. For the emerging discussion in the 1960s, see also Karen Schönwälder, Einwanderung und ethnische Pluralität: politische Entscheidungen und öffentliche Debatten in Großbritannien und der Bundesrepublik Deutschland von den 1950er bis zu den 1970er Jahren (Essen, Germany: Klartext 2003). See Thränhardt, D. 1993. “Fremdenfeindlichkeit und Rassismus in der Konkurrenzdemokratie.” Leviathan 21:336–57. For an evaluation of the Rückkehrförderungsgesetz, see Hönekopp, E. 1987. Aspekte der Ausländerbeschäftigung in der Bundesrepublik Deutschland (Nürnberg: Institut für Arbeitsmarkt- und Berufsforschung der Bundesanstalt für Arbeit), 187–341. Thränhardt, Dietrich. 1999. “Regionale Ansätze und Schwerpunktaufgaben der Integration von Migrantinnen und Migranten in Nordrhein-Westfalen.” In Texte zur Migration und Integration in Deutschland (Münster, Germany: Arbeitsstelle für interkulturelle Kommunikation). For more details, see Hagedorn 2001 and Ausländergesetz sec. 86, in Deutsches Ausländerrech (Munich: Beck 1996). Brubaker 1992; for critical comments, see Hagedorn 2001; and Thränhardt Dietrich. Forthcoming. “Prophecies, Ius soli and Dual Citizenship. Interpreting the Changes in the German Citizenship System.” In Magnet Societies: Immigration

The Institutional Setting of Naturalization and Multiple Citizenship 155 in Postwar Germany and the United States, ed. James F. Hollifield, Dietrich Thränhardt, and Barbara Schmitter. 25. Castles, S. 1999. “Democracy and Multiculturalism in Europe.” In Citizenship and Identity in Europe, ed. Leslie Holmes and Philomena Murray (Aldershot, UK: Ashgate), 59. 26. See Hagedorn 2001 for a systematic comparison. 27. Venema, M., and C. Grimm. 2002. Situation der ausländischen Arbeitnehmer und ihrer Familienangehörigen in der Bundesrepublik Deutschland. Repräsentativuntersuchung 2001 (Offenbach, Germany: Marplan). 28. Heijs, E. 2003. Van vreemdeling tot Nederlander. De verlening van het Nederlanderschap aan vreemdelingen 1813-1992 (Amsterdam: Het Spinhuis 1995), 64–69, 73ff.; Betty De Hart. 2003. Onbezonnen vrouwen. Gemengde relaties in het nationaliteitsrecht en vreemdelingenrecht (Amsterdam: Het Spinhuis), 78. 29. Heijs E. 2003; ibid., 134–36. 30. Heijs 1995, 189. 31. Senator Polak (VVD), as cited by De Hart 2003, Onbezonnen vrouwen. Gemengde relaties in het nationaliteitsrecht en vreemdelingenrecht (Amsterdam: Het Spinhuis), 82. 32. See Böcker, A., and Kees Groenendijk. 2004. “Einwanderungs- und Integrationsland Niederlande: Tolerant, liberal und offen?” In Länderbericht Niederlande, ed. Friso Wielenga and Ilona Taute (Bonn, Germany: Bundeszentrale für politische Bildung), 303–61. For a comparison to Germany, see Thränhardt, Dietrich. 2002. “Einwanderungs- und Integrationspolitik in Deutschland und den Niederlanden.” Leviathan 30:220–49. 33. van den Bedem, Ruud.1993. Motieven voor naturalisatie (Arnhem, Netherlands: Gouda Quint). 34. Wetenschappelijke Raad voor het Regeringsbeleid (WRR) 1989. Allochtonenbeleid (The Haag: Sdu), 31, 97–98. The council repeated this recommendation in 2002: WRR. 2002. Nederland als immigratie samenleving (The Haag: Sdu), 13, 203. 35. Kamerstukken Eerste Kamer, vergaderjaar 1994–1995, 23 029 (R 1461), nr. 226a, pp. 1–2; Handelingen Eerste Kamer, 25.6.1996, p. 36–1777. 36. Groenendijk, K., and E. Heijs. 1999. “Einwanderer und Staatsangehörigkeitsrecht in den Niederlanden 1945–1998.” In Einwanderung und politische Integration der ausländischen Wohnbevölkerung, ed. Ulrike Davy (Baden-Baden, Germany: Nomos), 105–46. 37. Kamerstukken Tweede Kamer, vergaderjaar 2004–2005, 30 166 (R 1795), nr. 3:1. 38. van Oers, R. 2006. De naturalisatietoets geslaagd? Een onderzoek naar de totstandkoming en effecten van de naturalisatietoets (Nijmegen, Netherlands: Wolf Legal Publishers). 39. For a comprehensive interpretation of the debate, see de Hart, Betty. 2004. “Debates on dual nationality in the Netherlands.” IMIS-Beiträge 24:149–62.

156 Anita Böcker and Dietrich Thränhardt 40. Hailbronner, K. 1992. Einbürgerung von Wanderarbeitnehmern und doppelte Staatsangehörigkeit (Baden-Baden, Germany: Nomos), 40. 41. Tas, R. F. J. 2000. “Aantal wijzigingen van nationaliteit sterk toegenomen in de jaren negentig.” CBS Maandstatistiek van de Bevolking 9:15. 42. In Switzerland, where multiple citizenship has been accepted since 1992, naturalization rates have remained low (see Table 6.1). However, this can be explained by the high fees for naturalization (up to sixty thousand Swiss Franks in some municipalities) and the decision-making process: the applicant has to obtain not only federal authorization but also authorization from the canton and the municipality. Some municipalities decide by means of a plebiscite. In September 2004, proposals to make naturalization less complicated for the second generation and to grant automatic citizenship to third-generation immigrants were rejected in a nationwide referendum. 43. Cf. Thränhardt, Dietrich. 1995. “Die Reform der Einbürgerung in Deutschland.” In Einwanderungskonzeption für die Bundesrepublik Deutschland, ed. Friedrich-Ebert-Stiftung (Bonn, Germany: Friedrich-Ebert-Stiftung), 63–116. 44. Authors’ computations, based on CBS (Netherlands) and Destatis (Germany) data. 45. Thränhardt, D., Dieregsweiler, R., Funke, M. and Santel, B., eds. 1994. Ausländerinnen und Ausländer in Nordrhein-Westfalen. Die Lebenslage der Menschen aus den ehemaligen Anwerbeländern und die Handlungsmöglichkeiten der Politik. Landessozialbericht, Vol. 6. Düsseldorf, p. 240. 46. Correa, M. J. 2002. “Seeking shelter: Immigrants and the divergence of social rights and citizenship in the United States.” In Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe. The Reinvention of Citizenship, ed. R. Hansen and P. Weil (Oxford: Berghahn Books), 233–63. 47. For the grave discrepancies under the law of 1991, see Hagedorn 2001; Thränhardt 1995; and Thränhardt 1999, 45–121. 48. Minister for Immigration and Integration Rita Verdonk, a fellow party member of Hirsi Ali, declared that Hirsi Ali never obtained Dutch citizenship because she lied about her name and place of birth. 49. Cf. Thränhardt 2002; Böcker, A., and Thränhardt, D. 2003. “Integreert Duitsland beter?” Migrantenstudies 19:33–44. 50. Wet Inburgering (Integration Act), Staatsblad, Netherlands, 2006, No. 625.

CHAPTER 7

Immigration Reform in Germany The Domestic Debate under the Red-Green Government Imke Kruse

Introduction

W

hen the Red-Green government came to power in 1998, a thorough modernization of Germany’s migration policy was central to its platform. Very quickly, the government introduced a U.S.style Green Card and a new citizenship law. From these beginnings, the immigration reform campaign captured the public imagination, and for two years a broad spectrum of figures from German public life took part in a lively debate on the issue. A law was eventually adopted by parliament and promulgated in spring 2002, but it was struck down by the Federal Constitutional Court weeks before its scheduled entry into force. A second legislative round finally resulted in a compromise on the immigration law in 2004. Until today, the topic of immigration continues to rank high in public discussions. After the adoption of the new law, discussions now primarily focus on integration matters on which the immigration law remains fairly vague. All the debates clearly illustrate the most difficult challenge Germany, like other nation-states, is facing: On the one hand, many people and even politicians feel “overwhelmed” by migration flows, hastily equate immigration with crime, and mingle the discussion on immigration with that on internal security. On the other hand, the country competes with other nations in terms of economy and innovation, and needs qualified foreign labor and an open exchange with nations and people worldwide. Thus, international

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migration challenges the nation-states by the so-called liberal paradox that requires both mutual openness and exclusion at the same time.1 In this chapter, the debate on the German immigration reform is analyzed as a study of how this liberal paradox is played out in the domestic debates between 2000 and 2004. Therefore, I have systematically studied all parliamentary debates on immigration and integration matters as well as the programs, position papers, and press releases of all parliamentary parties in the previously mentioned period. In addition, I have selectively reverted to media reports and comments. I take the results of the migration reform under the Red-Green government as a starting point to review the success of the political challenge to deal with the liberal paradox of immigration. The analysis illustrates how a political process, which started from a broad political and societal agreement about the need of comprehensive immigration reform, ended in a compromise that had lost its initial scope and distinctiveness during three years of legislative procedures. It was the numerically small immigration policy matters that dominated the debate and in the end derailed the endeavor of far-reaching reforms. At the same time, the permanent state of election campaigning typical for the German federal political system made an objective exposure to immigration reform without electoral politicization impossible. Rather, the constant campaigning for votes brought forward an old political cleavage between parties on the German national identity and in consequence, on the self-perception as a (non)immigrant nation. Instead of recounting single steps of reform efforts between 2000 and 2004, I shortly review the initial phase of the reform debate (section 1) and examine the reform outcome (section 2).2 In section 3, I analyze the most contentious issues of immigration and integration policies in the German political and public debate during the period 2000–2004 in more detail and give some possible reasons for their central role in the discussions. In the final section I review the new German immigration law and conclude that the legal provisions remain insufficient to cope with the challenges of international mobility. Where Did We Start From? The Need for Reform in 2000 The topic of immigration reform appeared on the political agenda in 1998, when the Red-Green coalition came to power and presented an ambitious government program.3 The first element of reform—a new citizenship law— became politicized in Hessian regional elections in 1999, which made a compromise necessary between government and opposition parties: for the first time, children of foreign nationals gained German citizenship by birth on German territory (ius soli); however, the principle of avoiding

Immigration Reform in Germany 159

dual citizenship remained valid. The second reform element was the introduction of the Green Card for temporary immigration of highly qualified people. These changes came along with an unforeseen public debate on immigration and immigration needs in Germany. Representatives of various political, economic, and social forces piped up. Economic interest groups warned of an acute labor shortage not only of highly skilled labor but even in low skilled and service sectors and argued for active recruitment of foreign workers. Medium-sized firms employing Bosnian refugees pleaded for them to be granted permanent residence. Demographers warned against social and economic consequences of a shrinking and aging population. The media discussed the need of immigration in the context of an otherwise collapsing pension system. The churches reminded of the country’s humanitarian responsibility in refugee protection and called for far-reaching integration offers to refugees. And political parties publicly discussed the ongoing question whether Germany now is an immigration country or not. The government mandated an immigration reform commission under the direction of the former parliamentary president, Rita Süssmuth (Christian Democratic Union, [CDU]), consisting of representatives of parliamentary parties, employers, workers, the United Nations High Commissioner for Refugees (UNHCR), and churches, as well as asylum law specialists and demographers to propose comprehensive legal reforms. At the same time, each individual party as well as employer organizations, labor unions, refugee organizations, churches, and other social groups elaborated their own concepts.4 In the end, a proposal for fundamental legislative immigration reform was set off, which, however, lost its scope and distinctiveness during the following years of legislative process. What Did We Get? The 2005 Immigration Law The new immigration law simplifies the so far very complex system of status of residence. Basically, there will be two types of status, a permanent one and a temporary one. Permanent residence applies to high-qualified people and their dependants. Self-employed persons, dependants of Germans, Convention refugees, as well as refugees under Article 16a first get a temporary residence permit that might be transferred into a permanent one after three years; other types of refugees will receive permanent residency only after seven years at the earliest. Therewith, the situation of refugees under Article 16a deteriorated since they do not automatically receive a permanent residency anymore. Temporary residence might be geographically restricted. Like before, asylum seekers get a special status during the asylum procedure. The rightless status

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of Duldung (exceptional leave to remain) persists but it was decided that members of this group who cannot be deported for urgent humanitarian reasons shall get a temporary residence in order to prevent a chain of Duldung. The law introduces a few channels for labor market immigration but does not suspend the recruitment stop for non- and low qualified as well as qualified persons. First, highly qualified foreigners5 can work in Germany if they have a job offer. They get a permanent residency permit and their dependants have the right to work, too. Before, the immigration of high-qualified was regulated by the Green Card and was limited to the information technology sector. The Green Card only granted a five-year long residence permit without offering a long-term perspective and obliged dependants to wait a year before getting access to the labor market. Secondly, self-employed people get temporary residence if a superior economic interest or regional need exists, if the business is expected to positively affect the regional economy, and if funding is secured. It is generally assumed that this is the case if at least ten work places are being created and the investment amounts to one million euro at the least. After three years of successful business these people get permanent residence. So far, immigration of selfemployed has not been explicitly regulated. Thirdly, foreign graduates of German universities now have the right to stay in Germany for a year to look for job opportunities. So far, they had to leave the country right after getting the degree. In contrast to other immigration countries, Germany did not introduce a point system. Instead, the government can introduce by-laws that allow for ad-hoc labor immigration of particular professions depending on labor market needs. The institutionalized preference for German labor is even reflected in the only limited labor market access for refugees. Generally, people who immigrate in the context of family reunification get the same labor market access as their dependant. With regard to the different categories, only convention refugees, refugees under Article 16a Basic Law, relatives of Germans, and persons with a permanent residence permit get unlimited labor market access. Therewith, the status of convention refugees as well as relatives of Germans has improved. Persons under temporary protection or who received a status according to the European Convention on Human Rights (ECHR) or for humanitarian reasons have to respect a waiting period of one year. This holds true also for asylum seekers. The immigration law does not provide explicit rules for the labor market access of Geduldete (those with an exceptional leave to remain) but leaves it to the Ministry of Labor to allow employment on an individual basis. It is very likely that the administration maintains the former rule according to which they get subordinated access to the labor market after a waiting period of one year. In sum, many foreigners

Immigration Reform in Germany 161

who already live in Germany and will probably stay for a longer period remain systematically excluded from the labor market. The right to family reunification remains limited to the nuclear family and does not consider more modern concepts of families. Preconditions for family reunification remain unchanged: a sufficient place to live, reasonable maintenance, and no reasons for deportation. Even the general maximum age for children to be reunited with their parents remains at sixteen years. However, the status of convention refugees has been meliorated: like refugees under Article 16a and high-qualified people, their children are allowed to come to Germany until the age of eighteen. In other cases of temporary residence, for example, for humanitarian reasons, family reunification is not allowed at all. The rationale behind this legal modification is the only temporary character of their stay. The immigration law explicitly makes clear that both nonstate and gender-related persecution give reason for recognition as refugee. The law now directly refers to the Geneva Convention, which means that from now on refugee characteristics instead of the actor of persecution come to the fore of the asylum procedure. Some exceptions have been made, however. Nonstate persecution does not suffice as reason for refugee status if an internal flight alternative exists. The regulation is further invalid if the state of origin or even parties and organizations, which control most of the country, are willing and able to provide protection. The legal practice will have to show whether these exceptions result in an indirect reintroduction of state persecution as prerequisite for refugee status. As mentioned earlier, refugees under Article 16a now get only a temporary residence permit. After a period of three years, their status as well as the status of convention refugees will be reviewed. They get a permanent residence permit if the Federal Office for Migration and Refugees comes to the conclusion that the situation in the country of origin remained unchanged and that no other reasons for repeal exist. Under the new law, reasons for fear of persecution that arise from political activities in the destination country shall not result anymore in recognition as a convention refugee. The law introduces regulations for cases of hardship and asks the German Lands to create specific commissions to decide on these cases. In addition, the law establishes the possibility to grant temporary protection in case of mass influx and therewith implements a respective European Union (EU) regulation.6 The possibilities for residency requirements for asylum seekers have been expanded.7 Rejected asylum seekers lack a right to appeal against the residency requirements and must automatically respect them. The law on social benefits for asylum seekers (Asylbewerberleistungsgesetz) has been extended and now also refers to persons accepted on humanitarian grounds. It additionally applies to

162 Imke Kruse

persons who have illegally influenced the duration of their stay, and in these cases, its validity is extended beyond the usual three years. Refugees under the ECHR and cases of hardship do not come under this law anymore. The airport procedure and the practice of detention in preparation of deportation remain unchanged. For the first time in German history, a legal basis for a more comprehensive integration policy has been created. So far it was mainly ethnic migrants who enjoyed integration measures. The law establishes a right to participation in integration courses on the German legal system, the country’s culture and history, and in German language classes for labor immigrants, persons arriving in the context of family reunification, and recognized refugees. These groups are obliged to attend the courses and in case of nonparticipation sanctions relating to residence and social benefits are possible. The new immigration law strengthened the 2001 antiterror laws. The deportation law has been significantly tightened. Convicted smugglers in human beings must immediately be deported. The following persons shall be deported: members who presumably are or were members of an association that supports terrorism, people who put a risk to free democratic regime, leaders of a forbidden organization. So-called Hassprediger (preachers of hatred) who publicly approve terrorist action and therewith endanger public security and order can be deported. Furthermore, the law introduced an accelerated deportation procedure for suspects of terrorism. What Did We Argue About? The Reform Debate Even though the 2001 final report of the CDU immigration reform commission headed by Saarland Premier Peter Müller did not differ fundamentally from the final report of the Süssmuth immigration commission and the subsequently proposed draft law, the following legislative process was marked by a harsh debate on specific elements of an immigration law. The main difference between the government and the conservative opposition lay in the phrase “limitation of immigration.” Representatives of CDU and CSU (the Bavarian Christian Social Union) repeatedly accused the government to expand immigration to Germany as follows: “Obviously, the sociopolitical change of Germany into a multicultural immigration country shall be initiated as the Green Party has always wished. However, it is our opinion that a responsible policy has to restrict the immigration from non–EU countries to a socially reconcilable level.”8 For its part, the government consistently emphasized that the proposed law would not markedly increase the number of immigrants but would replace the Byzantine legal patchwork of German

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immigration regulations with carefully chosen opportunities for more rational immigration in the long run. On the basis of the final concepts of various party commissions and party programs, in the following, I highlight the main cleavages between the political parties regarding immigration. These issues are illustrated by means of numbers of affected immigrants and show that both intensity and length of the debate were completely disproportionate to the actual immigration figures. Labor Market Immigration As for labor market immigration, the main question was the removal of the so-called recruitment stop dating back to the early 1970s. In the public discussion, the opposition parties made a causal link between labor immigration and high unemployment rates in Germany and refused to create legal channels for labor market immigration with the argument that this would result in German labor displacement. It soon became clear that even the Social Democrats favored selective modifications in terms of exceptions to the recruitment stop instead of a fundamental change. Initially all parties acknowledged the need to introduce a point system but both CDU/CSU and SPD (Social Democratic Party of Germany) thought of a very restrictive model that from the outset excluded immigration of lower qualified labor and allowed for a limited number of highly skilled immigrants only in case of need. In the course of time, the point system disappeared from the draft that was especially criticized by employers’ representatives and the liberals. If we try to assess the scope of discussed labor immigration reforms, we have to consider the following fact: the draft law provided that German labor would still take precedence over foreign labor, and it put a number of safeguards in place to ensure that this would continue to hold for all labor immigration channels. As for the point system, qualified laborers would only be able to apply if three separate federal agencies had observed a need for such immigration and annually specified a maximum number of immigrants.9 Interior Minister Otto Schily expected this instrument not to be used before 2010.10 Self-employed immigrants would only be allowed to launch a business with a minimum capital investment of about one million euros in an enterprise adding at least ten new jobs in Germany.11 Even before the reform, labor immigration existed on a large scale: in 2000, about 342,000 foreign laborers came to Germany on the basis of exceptions to the recruitment stop.12 The new regulation would have only replaced this ad hoc arrangement

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with a permanent one and would have kept immigration roughly stable with an estimated annual variance of plus or minus ten thousand people.13 Family Reunification Political actors also argued over family reunification. The main question was the standard maximum age for children to be reunited with their parents. The Süssmuth commission had voted for increasing it to eighteen years. Even though the Greens supported the commission’s proposal, the first draft immigration law foresaw a lowering to twelve years. The conservatives vehemently called for a reduction to six years while the liberals favored the status quo of sixteen years. According to the visa statistics of the Ministry of Foreign Affairs, the annual average of children being reunited with their parents was about 15,916 children between 1996 and 2001.14 Compared to the overall numbers of family reunification, including spouses joining their German partners, the increase in children being reunited with their parents was quite modest. In light of these figures, the Social Democrats accused the conservative opposition of exaggerating the level of reunification for the sake of electoral tactics. What is more, due to the proposed requirement of language qualification in case of family reunification, the Interior Ministry expected a substantial decrease in people being reunited with their family members. With regard to children joining their parents, the minister expected an immediate drop of about six thousand. Nonstate and Gender-Related Persecution Similarly to the issue of family reunification, the parties severely fought about nonstate and gender-related persecution. Germany had repeatedly been criticized internationally for excluding nonstate persecution from the refugee definition and therewith disregarding international standards. The main controversy—even in the Süssmuth commission—was whether a provision of protection already followed from the Geneva Refugee Convention and the German Foreigners Law or whether it needed to be explicitly delineated through additional legal regulations. The question was hardly whether nonstate and gender-related persecution were justifiable grounds for protection, but rather how they should be legally dealt with. The CDU and CSU were alone among the parties in parliament in refusing any modification of the legislation, fearing a disguised introduction of new grounds for the granting of refugee status. All others supported the explicit mentioning of nonstate and

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gender-related persecution in the law. The government sharply rejected the CDU/CSU complaint that it intended to extend the reasons for granting asylum and instead insisted that the draft law just provided for an amelioration of status. The fact that even the UNHCR did not conceive of the draft law as an extension of basic right on asylum according to Article 16a of the Basic Law but rather as granting protection against deportation on the basis of the Geneva Convention’s non-refoulement requirement pointed to the fact of status amelioration rather than extension of rights. The UNHCR expected no significant increase of asylum application or refugee recognitions and emphasized that the vast majority of asylum applications are based upon persecution by state actors. In addition, the draft law was not expected to be a pull factor as had been demonstrated by the experiences of other European states with similar regulations.15 Asylum Procedure In terms of asylum procedures, the public discussion was dominated by two slogans: Germany would need a “more efficient system” as well as measures against “the abuse of the system.” In the media as well as in the political debate, the impression arose that the majority of asylum seekers would quasi automatically “migrate into the social security system.”16 Even though all parties emphasized their will to fulfill humanitarian obligations to protect persecuted persons, political actors hesitated to generously improve the basic living conditions of rejected asylum seekers whose deportation cannot take place for various reasons and who live in the rightless status of Duldung (exceptional leave to stay). The conservative parties even refused to introduce a residence permit for Geduldete—even though this residence permit would exclude them from the right to family reunification—with the argument that this would provide a further incentive to immigration. At least, all parties consented to the abolition of chains of Duldung. Taking a closer look on the topics that came to the fore of the public debate, we recognize that magnitude and length of the debate were completely out of proportion to the number of immigrants concerned. Given the annual immigration rate of about 669,500 people, the reform debate in the years 2000 to 2004 only dealt with a small fraction of Germany’s immigrant population when fighting especially on labor immigration, family reunification, and nonstate and gender-related persecution. Taking this proportion into account, the sharpness of the conflict was indeed remarkable.

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Integration as an Ongoing Subject of Discussion The topic of migration reform not only refers to immigration control but also to immigrant integration. Immigration control and immigrant integration are not unrelated but interrelated matters. For instance, generous integration offers to first generation labor immigrants in Germany have helped to legitimate the shift to zero-immigration policies. Or restrictive access to welfare benefits may be a means of immigration control. As the previous section has shown, however, the legislative process on the German immigration law has mainly focused on measures of immigration control. Questions of immigrant integration like economic, social, and cultural rights and the forms of self-organization and ethnic identity of immigrants have only rarely been touched. Only a very general consensus has been reached between political actors over the necessity of a more comprehensive integration policy. All parties agreed that a basic knowledge of German language is the most important step toward integration. Differences arose around the meaning of integration, the groups of people to be integrated, and particularly the funding of such an integration policy. Actors discussed the pros and cons of sanctions (related to residence permit or social benefits) in the case that immigrants do not participate in integration courses. After having reached a compromise on immigration law, political and public discussions in Germany have now started to focus on questions of integration. The traditional balance between liberal states that only expect commitment to the same civic rules without imposing particular cultural ways and the willingness of migrants to assimilate has gone off balance. Indeed, current integration-related discussions and policy proposals on a possible headscarf ban, on cuts of social benefits for immigrants, and on particular integration measures for Muslim immigrants aim at a higher degree of assimilation and ultimately constitute a dispute about the nation’s identity. The control of entry as well as the power to define conditions of stay— that is immigration and integration policies—is one of the few domains in which nation-states can still be strong.17 In contrast to globalization studies, which explain international migration by the weakening of nation-states’ regulatory power,18 the following analysis of the German struggle over immigrant integration strategies clearly illustrates the significance of domestic actors and national conditions in determining these policies.19 The Headscarf Ban Like in other European countries, in Germany the question whether teachers should be allowed to wear headscarves in public school is very much

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disputed. When Fereshta Ludin, a German of Afghan origin, was not allowed to teach in public schools in Baden-Württemberg in 1998, she filed a lawsuit that ended up in the Federal Constitutional Court. The school authority had argued that the headscarf poses as a religious symbol that would be incompatible with the state’s commitment to neutrality. After the 1995 crucifix decision and the 2002 headscarf conviction of the Federal Administrative Court, politicians, the population, and the media now curiously awaited the Federal Constitutional Court decision. Instead of a clarification, however, the court took the decision back to the parliaments of Germany’s federal states (Länder) at the end of 2003. According to German Basic Law, each German has equal access to public positions independent from her religious belief. Wearing a headscarf in public schools comes under the basic right to religious freedom. This basic right conflicts with the state’s responsibility for education, the parental responsibility for education, and the pupils’ negative freedom of belief. However, a society with various religious beliefs cannot grant a right to not being confronted with religious statements and symbols. Since this conflict very much affected the society’s self-conception, the Federal Constitutional Court argued that it is the parliaments of federal states who have to decide on such a question of high public importance because they are democratically legitimate.20 The court principally allowed for forbidding the headscarf in class but asked for a legal base on the level of Lands. References to the Christian religion are not generally forbidden in public schools but schools would have to be open to other religious traditions and values as well. Accordingly, the court emphasized that members of different religious groups must be treated equally. The Land governments reacted differently upon the court decision. Baden-Württemberg was the first to introduce a headscarf ban, followed by Bavaria.21 Currently, nearly half of all Lands have introduced the ban or are in the legislative process to do so while the others do not see any call for action. Members of the CSU have repeatedly argued that—in contrast to the headscarf—crucifix and cowl are legitimate in public schools because of the country’s Christian roots and the long occidental tradition.22 From the point of view of the former president of parliament, Wolfgang Thierse (SPD), the headscarf (in contrast to the crucifix) not only is a religious symbol but also stands for women’s repression23 and Islamic fundamentalism.24 In their response, opponents refer to about 3.2 million people with Islamic roots living in Germany and call for strict equal treatment of all religions. In none of the legislative proposals so far, however, has the headscarf ban provoked considering also the prohibition of Christian and Jewish symbols.

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These statements show that the German debate about headscarves in public schools is not just about headscarves but also about alien religion and the limits of tolerance in an “immigration society against its will.” In a similar line to Rogers Brubaker’s25 argument that new forms of state membership for migrants are taken as “conspicuous deviation” from the model of national citizenship, I argue that the discussion about a headscarf ban in Germany in substance is a debate about national identity. The headscarf symbolizes the fear of strangers, is equated with repression of women and danger to democracy, and takes center stage in the evaluation of the integration success of the Muslim population. Here, integration policy is based upon an unequal treatment of Islamic symbols in comparison with Christian and Jewish ones: a headscarf ban tends to stigmatize Muslim women and therewith make their integration into German society more difficult. At the same time, it might strengthen the impression that Muslim immigrants are unwanted, segregated, and bound to lose, which entails the danger that they withdraw from German society. The Cost Effectiveness Debate Another, rather scientific, integration-related discourse centers on the question whether a more generous social welfare system serves as immigration incentive. Recently, this debate has focused on costs and effectiveness of immigration. By means of fiscal calculations on costs of immigration, Hans Werner Sinn26 has long argued against labor market immigration and called for a reform of the fiscal system according to the principle of origin or nationality. Interestingly enough, this way of arguing has now gained momentum when unemployment rates in Germany started to grow significantly.27 The underlying question is whether immigrants receive state benefits higher than their individual financial contribution. Herwig Birg28 sets the contribution of migrants to pension, care, and health insurance as well as their taxes off against social benefits and tax financed transfers and concludes that money would be redistributed from Germans to foreigners. Birg’s rather polemic argumentation draws on research of the Institute for Economic Research and the Max Planck Institute for Social Law that comes to the conclusion that migrants so far have been net recipients and that this effect is higher the shorter their stay in Germany.29 The Institute for Economic Research assumes that migrants, who are net recipients, function as migration incentives for other foreigners. It calls for a restriction of social benefits for immigrants until their individual fiscal balance is positive. Even though the institute concedes incidentally that it could not provide evidence for a causal relationship between difference in living

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standards and social welfare on the one hand, and immigration on the other, it pre-emptively argues for measures to reduce the German responsibility for immigrants’ social welfare. Such measures would result in a selection of profitable immigrants according to their economic performance.30 Against Birg, I argue that he only takes direct fiscal effects into account and does not present plausible evidence for his causal argument. Birg as well as Sinn disregard the possibility of substitution effects, on which Klaus J. Bade31 has pointed at, namely that immigrants take on jobs that allow natives to have better jobs and to earn more money. They further discount Christian Leiper’s32 research on the value of equal opportunities to ease integration. Birg recommends stopping immigration on a grand scale and proposes to address demographically caused labor shortages by means of family and labor market policy measures such as birth rate increase, mobilization of secret reserve, reduction of unemployment, extension of life work time, and reduction of high-skilled emigration. The underlying rationale refers to “social and cultural aspects” of political immigration costs, more precisely the question of “being suited to each other.” Therewith, Birg’s position represents a cultural philosophical aggressiveness that so far has been unknown in scientific immigration debates in postwar Germany. Integration of the Muslim Population After the murder of the Dutch producer Theo van Gogh on November 2, 2004, and the following violent conflict in the Netherlands, the discussion on the integration of the Muslim population also gained importance in Germany. After an arson attack on a German mosque in Sinsheim in midNovember, the emotional public exchange of views ranged between multiculturalism on the one hand and a specific German cultural identity on the other. The political parties have soon made proposals for an Islam-specific integration policy. Generally, all parties reject Islamism and emphasize common values under constitutional law as the basis for social life in Germany. They agree upon the need to qualify Muslim teachers in German language at German universities and support Islamic religious education in German language at public schools. However, the parties’ integration programs very much differ in tone. The first to outline their integration policy were the conservative parties who titled in their party manifesto “Fight Political Islamism—Protect Muslims Who Are Loyal to the Constitution.”33 Therewith, the emphasis was outspokenly set on the nexus between Muslim immigration and internal security and terrorism. After a very short introduction on Muslim immigrants being an important and enriching component of German society, the

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paper widely elaborates on parallel societies, political Islamism, terrorism, exposure to German security, Islamist propaganda, and the immigrants’ unwillingness to integrate. In a very sharp contrast, the liberals in their proposal entitled “Cultural Diversity—Universal Values” warn against equating Islam with Islamism, refuse legal tightening under pretences of internal security, and primarily make German policy responsible for insufficient integration results.34 The paper calls for access to language and integration courses even for migrants who came to Germany years ago and argues that the current labor market access of immigrants is too restrictive for successful integration. Furthermore, the liberals recommend suffrage on communal level allowing for more comprehensive participation and ask for the right of residence for Geduldete who have been in Germany already for more than five years. The liberals were the only political party to address the inhumane situation of illegal immigrants as a problem. Under the title “Living Together on the Basis of Common Basic Values,” Social Democrats and Greens put an emphasis on immigrants’ participation (proposing to open the civil service for immigrants) and argue for further integration measures on a communal level besides language courses with the aim to encourage education and professional integration.35 They call for a “dialogue of religions” to encourage public consciousness for the parity of cultures. The discussion on failures in immigrant integration, of course, is not just a German but a European one. Even though integration policy will primarily remain in the responsibilities of member states, Interior and Justice ministers of all twenty-five countries in November 2004 agreed upon eleven common basic principles for the integration of immigrants. These principles emphasize the element of reciprocity in integration, which above all has to take place on the basis of the EU’s common values. Labor market access, language knowledge, successful education, equal access to institutions as well as public and private goods, and political participation on communal levels are listed as the most important conditions for the successful participation of immigrants. In contrast to the public discourses in EU member states, the list of basic principles for integration resists to make the connection between integration on the one hand and security concerns and terrorism on the other. In September 2005, the European Commission (EC) proposed a common agenda for integration of third country nationals in the EU in order to implement these principles.36 It emphasized that integration policy remains in the responsibility of individual member states. A European framework of integration and several EU mechanisms like a European Fund for Integration shall support the implementation of the principles in the member states.

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Why We Argued the Way We Argued? In 2000 and 2001, the very lively immigration debate seemed to illustrate a changing understanding of immigration and integration in both politics and the society. Discussions between various political, social, and economical actors as well as the population at least momentarily indicated that the positions on immigration had thawed and that the implications for the country’s future came to center stage. The public debates primarily focused on labor market issues, be it the immigration of highly qualified persons, the relationship between the country’s high unemployment rate and immigration, thoughts about future labor market shortages in view of demographic development, or concerns about immigrants’ poorer record in labor market participation. At the same time, however, standards of refugee protection in Germany mostly made it to the headlines only if linked with social welfare costs or the metaphor of abuse. This section has shown that even though all relevant political, social, and economic forces agreed upon the basic need of immigration reform in Germany, the legislative process on an immigration law has been very long and extremely difficult. In the end, it resulted in a mediocre compromise. Despite a far-reaching consensus between the major political parties on many immigration policy issues, it was the numerically small things that seemed to derail the endeavor. In the end, the magnitude and length of the debate appeared to be disproportionate. One particularity of the German political system might help to at least partly explain the difficulties during the overall reform process as well as the only limited success: the permanent state of election campaigning. In line with Ted Perlmutter’s37 observation that in federal states with coalition governments, the politicization of immigration is very likely, German immigration and integration policies have become increasingly politicized during the legislative process and in view of various regional and the federal elections. The parliamentary debate on the draft law started almost one year before the 2002 federal elections, and the second chamber had to vote on the draft just six months before federal election day. Thus, the difficulty in reaching an agreement probably had much to do with an election-season need to advance party programs to the exclusion of others. In keeping with the overall tone of their campaign, the conservative parties argued that the country’s ability to integrate foreigners as well as the labor market’s capacity to absorb immigrants were exhausted. With reference to public opinion polls, they attempted to turn the parliamentary elections into a referendum on immigration.38 The government in turn sought to charge the conservatives with masking a lack of willingness to compromise and with an exploitation of

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immigration in the election campaign.39 After the parliamentary elections, the decision of the Federal Constitutional Court to reject the immigration law was followed by two important federal state elections in Lower Saxony and Hesse in February 2003. Once again, a more objective discussion about immigration was hindered.40 Because of the German federal system, there are elections somewhere almost throughout the year so that the topic of immigration never loses its explosiveness. As the headscarf debate has illustrated, a further reason for the inability to agree upon immigration reform in Germany possibly is a far-reaching political cleavage on German national identity. National identity generally is a traditional hobbyhorse of, above all, conservative politics. The issue is marked by questions that are as divisive as they are nebulous: Who belongs to a society? How much of national identity, of love of land are permissible? Who is welcome, and who has to stay outside? What values are necessary to keep a society together? What can politics do to foster the feeling of togetherness, of community, of belonging to a community or a nation? The inability of political parties to agree upon fundamental immigration reform measures shows that Germany still perceives herself as a nonimmigrant nation “in which immigration has been acquired largely by default, and is considered a nonrecurrent, historical episode.41 Even though each political party was keen to present herself as a single actor, there have long been deep differences even within the parties. In almost all cases, these differences have been suppressed in deference to party discipline, but they remain an important underlying factor. The record shows that leaders of all German parliamentary parties initially approved a substantial immigration reform, including new tools for labor recruitment—but then they gradually retreated from their initial proposals. The conservatives blamed the Red-Green coalition for putting the society’s cohesion at risk and for changing German society and its national identity through immigration.42 The Bavarian Prime Minister Edmund Stoiber commented on the initial decline of the immigration law as an important day for “perpetuation of German identity.”43 On the contrary, the Green’s basic program supports a multicultural society that “confirms the cultural freedom of the individual, allows for differentiation and dissociates itself from the idea of a specific German national identity which is often used to argue for assimilation and subordination.”44 Such a drastic cleavage on national identity might principally hinder a reform-oriented debate on immigration reform, particularly in a federal political system. Of course, this is only a preliminary collection of underlying reasons for the German difficulties to immigration reform and further in-depth research is needed.

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Conclusion: Do We Have a Sustainable Migration Policy Now? Today, most European countries are dealing with large-scale immigration and a growing stock of foreigners—whether they like it or not. In turn, many countries are becoming more ethnically heterogeneous, which is often perceived as a threat to the national identity. With respect to the recent difficulties in immigration reform, Germany—as many other industrialised countries—seems to be ill equipped to cope with the challenges of international mobility. In this concluding section I argue that the instruments of migration management in the field of labor immigration and the willingness to develop such tools are still seriously underdeveloped in Germany. At the same time, reforms in asylum law remain insufficient, and important phenomena of international migration like illegal migration and foreign and development policy implications have not been addressed at all. The public and political discussions in the last few years have shown that governments are very much challenged by the so-called liberal paradox: they have to meet the challenge of balancing between the population’s immigration resentment and fear of additional labor market competition on the one hand and the economic, demographic, humanitarian, and legal need to accept immigration on the other. Indeed, this is a difficult undertaking. However, widely used arguments against innovative reforms that point to hostile attitudes of the population and the society’s limits of admission and integration capacities wrongly let politicians off the hook. The 2005 immigration law continues to frame labor market immigration in terms of ad hoc abolition of labor market shortages. In that, it disregards the widely known demographic development in Germany. Already for many years the number of births has been below the necessary level to maintain the population. While the birth rate is further decreasing, life expectancy increases, which results in both population decrease and a modified population structure. Until 2050, the share of people over sixty years in the total population will double.45 This means that within the next decade the structure of the active population will change when a well-educated age group with a high birthrate retires and a less well-educated age group with a low birth-rate follows. It is well known that immigration cannot compensate for the demographic aging of Germany’s population. Rather, I argue that a well-directed immigration policy that provides permanent immigration of young and qualified people might soften the effects of demographic change. The immigration law, however, leaves this aspect almost unconsidered. Of course, permanent residence for high-qualified people, immediate labor market access for their dependants, and the possibility for graduates to temporarily

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stay in Germany are important improvements that have been overdue. However, this is not sufficient to successfully compete with other much more attractive immigration countries. I argue that the failure lies in sticking to short-term measures. The sole focus on reactive short-term measures illustrates that we have not yet internalized what has finally been officially stated—Germany being an immigration country. A change from short- to long-term measures would have meant to introduce a point system. Such a point system considers individual qualifications of immigrants instead of having or not having a job offer. Even though the immigration commission—after having consulted with experts from long-standing immigration countries such as Canada and the United States—proposed a point system for Germany, this future-oriented innovation disappeared during the legislative process. The short-term framing of immigration can be also seen in the area of refugee protection. Refugees who get temporary residence in Germany for humanitarian reasons or under the ECHR do not get the right to family reunification because of the temporary character of their stay. However, more than fifty years of refugee protection have shown that most of the foreigners remain longer in the country than initially expected. The immigration law does not take this experience into account and thus hampers the integration of refugees. By the same token, the immigration law introduces a review of status for convention refugees as well as refugees under Article 16a after three years. Such a review creates substantial uncertainty for refugees and gives them the impression that they are unwelcome and their status is insecure. Beyond, this might even result in a massive increase of procedures. The shortterm framing even impeded what has long been postulated in public discussions: the abolition of the practice to deport delinquent persons of second or third generation who most often do not have any relations anymore with their parents’ or grandparents’ country of origin. Similarly problematic is the status of Duldung. Even though the law provides that persons who cannot be deported for urgent humanitarian reasons shall get a temporary residence permit and thus some basic rights, substantial numbers of Geduldete are not eligible to temporary residence. The reason lies in the immigration law excluding persons whose asylum claim has been rejected for manifestly unfounded reasons from temporary residence. In 2003, half of all rejected cases were manifestly unfounded claims and it can be assumed that many of them received a Duldung. Furthermore—and in contrast to earlier announcements of the government—the immigration law does not provide for any interim arrangements for Geduldete who are in Germany for more than five years already. Out of the 217,000 Geduldete in 2004, more than 150,000 lived in the country already for such a long period.

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Integration policies are another example of the lack of long-term perspectives. Even though the immigration law for the first time defines rights to and obligations for language and integration courses, it still disregards the fact that imparting language knowledge alone does not constitute a sustainable integration policy. The latter would require that a consensus on the meaning of integration, the desired final objects of integration policy, and the necessary instruments could be reached. In the end, integration means equal chances for social participation. Therefore, language knowledge, access to education and qualification, participation in economy and labor market, adequate housing and living environment, and sufficient legal rights are needed. To develop such a comprehensive integration policy the knowledge on integration success and deficits with regard to all these elements is to be deepened. Furthermore, we need an objective and goal-oriented debate on weighting these elements to develop integration programs that take the increasing heterogeneity of immigrants into account. The analysis has shown that in Germany immigration is still framed in terms of defense or threat. This has been the tendency in all other EU member states as well where migration policies are dominated by internal security issues, and it holds true even for the EU itself. In Germany, the new immigration law strengthened the 2001 antiterror laws without investigating their efficiency and appropriateness. Even though the often repeated claim that under the old laws only convicted delinquents could be deported46 proves false, the deportation law has been significantly tightened. The heavily discussed preventive detention has not been introduced but is still under discussion and might be introduced later. Under this security focus, the very much disputed airport procedure as well as the practice of deportation in preparation of deportation remained unchanged. It has to be noted, however, that the regular inquiry for information at the Federal Office for the Protection of the Constitution in cases of naturalization has been common practice already since the new citizenship law in 2000 and thus is not an innovation of the immigration law. Some important aspects are completely missing in the new immigration law. One example is the situation of illegal migrants, which has not been addressed at all. The immigration commission dedicated three short pages to this issue and gave very vague policy recommendations. Afterward the issue has not been very much discussed anymore. This is somewhat surprising since European level governments almost exclusively focus on what they call the “fight against illegal migration.” I argue that we need to think more deeply about the relationship between legal immigration channels and illegal migration, at least for two reasons: to admit our partly responsibility in the increase of numbers and to identify effective measure to reduce

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illegal immigration. Besides, the inhuman living conditions and the lack of basic rights for illegal migrants need to be addressed. In summary, the new immigration law provides some first good steps but lacks a fundamental reorientation and a path-breaking restatement of German immigration policy. The intensity of debates and the serious difficulty to come to a compromise suggest that the opportunity for a more comprehensive immigration reform will be cleared out of the way for years. On the other hand, however, the mid-term consequences of demographic development and insufficient integration policies might serve the topic up to the political agenda sooner than expected. Until then, Germany remains an immigration country without a sustainable migration policy. References 1. See Zolberg 1992. 2. For a more detailed analysis of the 2002 procedural failure and each single step of the legislative process, see Kruse, Orren, Angenendt 2003. 3. See Sozialdemokratische Partei Deutschlands/Bündnis 90/Die Grünen 1998. 4. The various proposals have been discussed in greater detail in Angenendt and Kruse 2003. 5. These are people who earn a minimum annual income of eighty-four thousand euros. 6. See Council of the European Union 2001. 7. An EU proposal to prohibit residency requirements for asylum seekers failed because of strong German resistance in 2002. 8. Glos, M. (CSU). 2002. Plenarprotokoll 14/222, March 1, 22031 (D) (translation by the author). 9. See Bundesregierung 2003, section 20(4). 10. See press release of the Ministry of Interior, “Union ist in der Zuwanderungsfrage völlig isoliert,” September 16, 2002. 11. See Bundesregierung 2003, section 21(1). 12. Data from the Federal Employment Office. 13. Marieluise Beck (Bündnis 90/Die Grünen), Plenardebatte 15/31, March 1, 2002, 22041 (B). 14. The annual totals have increased from 11,593 to 19,881 over the period. 15. See statement of the UNHCR regarding the draft immigration law, January 16, 2003, BR-Drucksache 22/03. 16. See, for example, “Göttingen Declaration” of the CDU, January 11, 2003; Wolfgang Bosbach (CDU), Plenarprotokoll 15/31, March 13, 2003, 232 (A). 17. See Brubaker 1992; Joppke 1999. 18. See, for example, Massey, D., Alarcon, R., Durand, J. and H. Gonzalez 1987; Portes 1996; Sassen 1991. 19. For a similar argument, see Joppke 1999; Money 1999.

Immigration Reform in Germany 177 20. See, press release no. 71/2003 of the Federal Constitutional Court, September 24, 2003. Virginie Guiraudon (1998) has pointed at the different importance of the open arena of democracy on the one hand and the bureaucracy and the legal system on the other hand for achieving migrant rights. 21. In 2004, the Federal Administrative Court validated the Baden-Württemberg law; see press release of the Baden-Württemberg government, “Bundesgericht bestätigt Gesetz zu Kopftuchverbot,” June 25, 2004. 22. Friedrich, I. (CSU), in Süddeutsche Zeitung, December 30, 2003, p. 6. 23. Thierse, W. (SPD), in Der Tagesspiegel, January 4, 2004. 24. Pflüger, F. (CDU), in Süddeutsche Zeitung, December 30, 2003, p. 6. 25. Brubaker, R. 1989. Immigration and the Politics of Citizenship in Europe and North America. Lanham, MD: University Press of America. 26. Sinn, H. W. 1990. Tax Harmonization and Tax Competition in Europe. European Economic Review 34:489–504. 27. In her research on Britain, Money (1999) has shown a causal relationship between anti-immigrant sentiments and restrictive immigration policies in case of high unemployment rates. 28. Birg, H, 2003. Migrationsdiskurse in Deutschland zwischen Politik, Propaganda und Wissenschaft. Eröffnungsreferat zur Jahrestagung der Deutschen Gesellschaft für Demographie zum Thema transnationale und interregionale Migrationsprozesse. Wiesbaden, Germany: Bundesinstitut für Bevölkerungsforschung. 29. Sinn, H. W., G. Flaig, M. Werding, S. Munz, and H. Hofmann. 2001. EUErweiterung und Arbeitskräftemigration. Wege zu einer schrittweisen Annäherung der Arbeitsmärkte, ifo Beiträgte zur Wirtschaftsforschung. Munich: Institut für Wirtschaftsforschung, 230. 30. Ibid., 232. 31. Bade, K. J. 2000. Europa in Bewegung. Migration vom späten 18. Jahrhundert bis zur Gegenwart. Munich: C. H. Beck. 32. Leiper, C. 2003. Demographie und Wohlstand. Neuer Stellenwert für Familie in Wirtschaft und Gesellschaft. Opladen, Germany: Leske+Budrich. 33. See CDU/CSU 2004. 34. See FDP 2004. Translation by the author. 35. See SPD/Bündnis 90/Die Grünen 2004. 36. See Commission of the European Communities 2005. 37. Perlmutter, T. 1996. Bringing Parties Back In. International Migration Review 30:375–88. 38. See Glos, M. (CSU). 2002. Plenarprotokoll 14/222, March 1, 22031(C); Kerstin Müller. 2001. (Bündnis 90/Die Grünen), Plenarprotokoll 14/208, December 13, 20518 (B). 39. See Onur,L. (SPD). 2002. Plenarprotokoll 14/222, March 1, 22044 (B). 40. See Spiegel Online. 2002. Wulff und Koch setzen auf Zuwanderung, December 19. 41. Joppke, C., ed. 1998. Challenge to the Nation-State. Immigration in Western Europe and the United States. Oxford: Oxford University Press, 19.

178 Imke Kruse 42. See Frankfurter Allgemeine Zeitung. 2002. Alle Parteien im Wahlkampf am politischen Aschermittwoch, February 14; see also Frankfurter Allgemeine Zeitung. 2001. Der Hessische Ministerpräsident Koch will die Diskussion über die nationale Identität zum Wahlkampfthema machen, September 3; Günther Beckstein (CSU) at a discussion entitled “Immigration and National Identity,” Hanns Seidel Foundation, November 16, 2000; for a survey concerning foreigners and immigration, see Westle 1997. 43. Süddeutsche Zeitung. 2002. Rot–Grün kämpft für das Zuwanderungsgesetz; Schily bringt seinen Entwurf schon im Januar wieder in den Bundestag ein/Union fordert substantielle änderungen; Karlsruhe: Zustimmung im Bundesrat war verfassungswidrig, December 19. 44. See “Die Zukunft ist grün,” basic program of Bündnis 90/Die Grünen, March 17, 2002, http://www.gruene-partei.de/cms/gruene_work/rubrik/0/128.grundsatz _programm.htm; translation by the author. 45. For more details on the expectations related to demographic development, see Sachverständigenrat für Zuwanderung und Integration 2004. 46. Section 55 (1) Aliens Act foresees the deportation of foreigners who affect public security and order. Even the antiterror laws do not require preliminary proceedings for deportation.

CHAPTER 8

Territoriality in Diasporas and Transnational Communities1 Riva Kastoryano

T

he question of territory has always been at the heart of nationalist movements. Through territorialization a community becomes a geopolitical reality, an independent nation whose territorial borders coincide with political and cultural boundaries.2 Territory is even what makes a nation; its right to self-determination, a combination of cultural and territorial autonomy, is what is at stake in conflicts, even wars, between states. Territorial conflict also occurs between states and nations that have risen up against those who have the monopoly of legitimate violence on their territory. How can a nation be thought of without territory? How can nationalism, as a historic concept, be delinked from its territorial attribute? An example often cited is the Roma: a group that has developed its entire national conscience on a lack of territory and today claim a right to and recognition of nonterritorial self-determination in the international system.3 Dispersed throughout the entire European continent and beyond, not having any territorial reference recognized as their country of origin, the Roma are now being heard in international bodies. They are represented at the World Bank, the United Nations, and the European Union.4 Their demands echo those of immigrants or political refugees: making reference to human rights, fighting against racism and discrimination, and demanding integration, particularly through education in their host country. They have yet to raise the issue of territoriality. The question of nonterritoriality arose early in the twentieth century, when in the Austro-Hungarian Empire, Karl Renner and Otto Bauer advocated social democracy and sought an alternative to minority and diaspora

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nationalism. Karl Renner suggested personal autonomy in reaction to projects to territorialize the nation. For Otto Bauer, national autonomy based on the principle of territoriality was unquestionably the way to circumscribe national spheres of power and quash national power struggles. The nation, a “community of faith,” was to seek unity in the proletariat surpassing ethnic and religious differences specific to the empire. The nation nevertheless could aspire to cultural autonomy—starting, in particular, with language as a tool for nonterritorial communication.5 Today nonterritoriality is an extension of the debates surrounding multiculturalism. Cultural, ethnic, and religious communities recognized by states increasingly rely on transnational solidarities sparking new upsurges of nationalism. This translates to the nationalization of community sentiment (whatever its content may be) or the communitarization of networks of transnational solidarity accompanied by new forms of subjectivity. The territorial boundaries of these communities are not disputed; on the contrary, their nonterritorial boundaries follow formal or informal network connections that transcend the territorial limits of states and nations, thus creating a new form of territorialization. This territorialization is invisible and unbounded and consequently a form of political community within which individual actions become the basis for a form of nonterritorial nationalism that seeks to strengthen itself through speech, symbols, images, and objects. These communities are guided by a deterritorialized “imagined geography” that gives rise to a new historical stage of nationalism, or a transnational nationalism without territory. I base the theoretical grounding for analyzing transnational nationalism on the link between transnational community and nationalism and I am inspired by studies devoted to diaspora nationalisms. Diasporas, or transnational communities, refer to a minority situation and have in common modes of organization and mobilization that transcend national borders. Organization activists play an essential role in expressing and propagating such sentiments as well as the actions that put them into practice. Their demands fit into a dual and seemingly paradoxical logic: a struggle for both individual and collective equality within the framework of the state and its institutions, and the affirmation of a collective identity through a nationalist movement that seeks outside support on a religious or linguistic basis. However, diaspora nationalism differs from transnational nationalism in its historicity—or their formation, mobilization, and relationship to the cultural and political environment as well as in their aims and conception of self-determination. Their relationship to the state raises the question of the connections between nation, space, and territory as “transnational community” establishes itself as a nonterritorialized, non-nationalized political community that is linguistically

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and ethnically diverse. The new political community nourishes new nationalistic expressions of a very different nature from the highly territorialized nationalism of the nineteenth and twentieth centuries, a form of transnational nationalism linking territorially defined nationalisms to an indeterminate space. Similarly, this new type of nationalism breathes new life into the national question and becomes an issue of legitimacy in the international system. Nationalism and Territory In spite of their variety, theories of nationalism are commonly based on membership in a historical cultural community institutionalized by the state on a given territory.6 Views differ as to how this membership is expressed and how it relates to the creation of nation-states in nineteenth-century Europe. Its conceptualization, however, remains vague and is applied to a variety of phenomenon. Some authors, such as A. D. Smith, emphasize a primordialist approach when they highlight the ethnic origins of nationalism.7 W. Connor, in his concept of “ethnonationalism,” also sees an ethnic basis in the definition of a nation, but he is referring to minority nationalisms, particularly regional ones, expressed in reaction to an attempt to achieve a culturally homogenous blend in various nation-states.8 Other theories of nationalism pertain to the political agenda for self-determination of a people sharing the same myths of origin, language, and ideology. From this standpoint, the state becomes its only source of legitimacy.9 E. Kedourie, for instance, does not reject the idea of a primordial attachment that he expresses in terms of “need,” but he strives to define the legitimate criteria by which a people can create a state.10 According to Gellner, this phenomenon is part of the modernization process; with the passage from an agrarian society to an urban society the emerging elite mobilize to create a nation, the only political community Weber qualifies as modern.11 On the whole, the institutionalization of nationalism is the result of social movements of resistance that seek autonomy, self-determination, freedom or decolonization, or even territorial expansion. These political aspirations all cumulate in a struggle for territory.12 Such definitions of nationalism consider all nations as being linked to a state. The emergence of communities is likened to “embryonic nations” within nation-states. The shared loyalties of their members, a source of dissociation between state and nation, has led to different interpretations of nationalism.13 As a result, a “portable” nationality, to use Benedict Anderson’s expression, occurs,14 resulting in a transnationality that is behind a new imagined community that goes against the unified community brought together around the same territorialized political project. This new community is

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imagined on the basis of a religion or an ethnicity that encompasses linguistic and national differences and breaks away from the territorialized nationalist project to assert itself beyond national borders, without geographical limits. This community imagines itself as a deterritorialized nation in search of an inclusive (and exclusive) center, around an identity or an experience constructed out of immigration, dispersion, and a minority situation aiming to achieve legitimacy and recognition not only from states, but also from supranational or international institutions. This quest generates “a permanent tension between the idea of the state as a source of absolute power and the reality of the state as something limited both from beyond.”15 These tensions crystallize around the issue of minority nationalisms, be they national, territorial, ethnic, or religious. A form of nationalism arises when they mobilize beyond national borders, and this phenomenon reinforces the interdependency between internal political developments and the involvement of transnational actors in the international political system. Still following Benedict Anderson, the development of capitalism generated a new type of nationalism that he terms “long-distance nationalism.”16 Developing emigration, evolving means of communication, newly industrializing civilization, and the ensuing social and geographical mobility have raised new forms of consciousnesses. This has led to an identity-based withdrawal fueling nationalist claims to the effect that repressed ethnic identities should take the form of ethnicity-based nation-states.17 In their own definition of a similar concept, N. Glick-Schiller and G. Eugen Fouron suggest, “Long distance nationalism is reconfiguring the way many people understand the relationship between populations and the states that claim to represent them.”18 According to these authors, the political agenda associated with this type of nationalism relates to “the vision of the nation as extending beyond the territorial boundaries of the state frequently springs from the life experiences of migrants of different classes, whose lives stretch across borders to connect homeland and new land—the country of immigration.”19 This is reminiscent of the projects of reconstruction of nation-states elaborated in exile that Benedict Anderson also mentions. Indeed, in the case of Turkey, the creation of the republic was also the work of the Young Turks and the implementation of ideas they had internalized during their exile in France, in other words, a central and unified secular state. This conception was in opposition to the mobilization of intellectuals from Central Asia who imported an ethnic conception of the nation based on language. Furthermore, it is important to take into account the role of intellectuals in exile in the anticolonial struggles, as well as the budding nationalisms in the former colonies, even if in this case exile was more cultural and political than territorial. Nationalist movements founded and developed in exile, as is the case of diaspora nationalisms,

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are projects that are territorially based with objectives such as self-determination or the redefinition of the nationalist foundation for the building of states. Today, transnational nationalism appears to be the result of a historical evolution a priori linked to what has become a global market, to the emergence of a so-called global space and the rising influence of supranational institutions, in short to changes related to the process of globalization. Diaspora Nationalism—Transnational Nationalism The “distance” to which this type of nationalism refers is none other than distance with respect to territory: the reference territory, that of the country of origin or the one that must be conquered or reconquered to build a state, the homeland. In the early twentieth century, the same phenomenon gave rise to the concept of “diaspora nationalism” that Gellner qualifies as a “historical fact,” which he considers a subspecies of nationalism. According to him, this concerns a group in a minority situation due to its religion or language and thus consequently excluded from the state’s version of nationalism, “the group of urban, educated ‘foreigners’ who have no political power, but who have economic clout that they use, moreover, to serve nationalist purposes.”20 Gellner Table 8.1 Types of “long-distance nationalism” Type of “Long-distance nationalism” Diaspora nationalism Historicity Actors

Organization

Identity-based elements Aims

Expulsions, exile catastrophes Urban elite Industrialists or shopkeepers Intellectuals Recentralization of the community Organizations from the various countries Transformation of religion into nation

Transnational nationalism

Postcolonial economic immigration Organization leaders Industrialists or shopkeepers Intellectuals Multilevel networks of solidarity (family, trade, organizations, state to state) Transformation of national references into religious reference Self-determination Recognition in states of Construction of a territorial residence, institutional nation-state (territorialization assimilation; nonterritorial or reterritorialization) cultural autonomy International recognition

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sees diaspora nationalism as the result of a social transformation, a cultural renaissance and a desire of this minority to acquire a territory.21 The usual examples refer to the experience of the Jews in Central Europe and Zionism that mobilized Jews settled in various countries to create a territorialized state that gained legitimacy in the eyes of the international system. This leads J. A. Armstrong to develop the concept of “mobilized diaspora,” drawing on the example of the Jews as the diasporic archetype. The literature treats the case of the Armenians, Chinese, and Indians living outside their national territory as having a diasporic status comparable to that of the Jews, but according to Armstrong, these constitute “situational diasporas.” In effect, Indians living abroad in Africa and Chinese scattered throughout Asia have also mobilized to protest against their lack of rights, however, their mobilization was not inspired by nationalism. Rather, their behavior is more like an interest group trying to pressure local authorities.22 In the case of the Armenian diaspora, a long-term nationalist mobilization shared the same goal: reterritorialization by returning to the “sacred territory” much the same as the Zionist movement. This movement was circumvented due to internal divisions within the nationalist movement, and that their diaspora nationalism took the form of a demand for historical recognition of their exile. In any event, Armstrong defines a mobilized diaspora as “an ethnic group, which does not have a general status advantage.”23 Entrenched in the concept of diaspora is the idea of a people scattered. Various dictionaries and encyclopedias demonstrate the evolution of the term and its usages.24 First in reference to the Jews “in exile,”25 with initially a religious connotation, the concept of diaspora has been applied to any population that has been a victim of expulsion, persecution, and forced emigration for religious, political, and economic reasons. According to W. Saffran, scattering occurs from a center, the land of ancestors or origin, the homeland. “Diasporization” comes about when the population in question feels excluded from the society it is surrounded by, keeps alive the memory concerning the center that has become idealized and mythical, and develops plans to return there.26 Mobilization around the project of return becomes the focal point of diaspora nationalism. It aims to create for itself a nationstate on the “ancestral territory” as a way of recovering its history and reconquering the territory it inhabited before exodus. The project thus involves reterritorializing and reunifying the nation, organizing and redefining it as a diaspora. M. Cohen, in his study on Zionism, illustrates that the Jewish nationalist movement, which was spawned in Central Europe at the end of the nineteenth century, should be considered a consequence of the “awakening of nations.” The Zionist demand for cultural and religious autonomy

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occurred in tandem with the decentralization of its political organizations.27 The author also notes that the nationalisms of the host nations, a source of hostility toward those who are perceived as foreigners, transformed a theoretically religious community into a scattered nation pursuing its self-determination much like other nations. Diaspora nationalism thus translates as territorialization or reterritorialization. A scattered population shares the same history, memory of expulsion or deportation, and myths. This population mobilizes to establish itself as a territorialized “nation” legitimated in the form of a state recognized on the international scene. This represents a shift from extraterritorial nationalism, expressed outside the reference territory, to territorial state nationalism. Although history views the Jews and the Armenians as classic examples, the exile of most Palestinians during the war of 1948 gave rise to a Palestinian nationalism that has developed into a diaspora.28 If the aim of diaspora nationalism is to endow the population with its own state on a real or mythical territory, transnational nationalism takes the opposite path. The nationalism reproduced and propagated by the migrants’ states of origin ends up being reinterpreted and expropriated in a situation of immigration and minority status and, in return, redefines the content of nationalism espoused by the country of origin. Transnational nationalism thus produces exclusionary discourses within both political spaces, the country of departure and of settlement, and seeks to impose itself in the two political spaces and beyond, as a community whose frontiers are not territorial. The transnational community is made up of migrants who belong to a nation-state of origin, and who have been scattered, like diasporas, but from a center. These centers are independent, sovereign, and territorially defined nation-states. The diasporization of the transnational community consists, like that of diasporas, in maintaining a link with the center, through perpetuation of the national language and culture, with the possibility of returning. Both forms of nationalism are expressed and developed beyond and outside the borders of the state of origin and its territory. The nationalism of the transnational community differs in two ways from that of diasporas: it first appears as an extension of the state of origin’s nationalism, and it is defined as a movement that is seeking a new, nonterritorialized center. This center is denationalized with respect to the countries of origin in order to “recenter” itself in line with demands and representations of identities that have been expropriated in immigration. Nationalist sentiments are newly conceived, which redefines the transnational community by unifying the diversity of the nation so as to develop an identity of action

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according to the rhetoric of legitimacy that goes beyond states, both the state of immigration and the state of residence. In the example of Turkey and Turkish immigration, the official discourse based on Kemalism, which postulates a unified and secular republican state, and a nationalism considered until recently as natural, has recently been placed in a more defensive position. This has occurred as a result of the growing influence of Islamist movements in political life and the amplification of the Kurdish movement in Turkey. These two movements, both political Islam and the Kurdish movement, have found a basis for legitimacy in the framework of “identity” policies implemented in their host countries. These movements then return to the national territory with demands for the same representation as they have obtained in Europe. Organization activists draw on new solidarities ranging from the local to the transnational, and that allow them to reproduce the usual economic and political power struggles in a global system. This currently frames the political agendas and indicates a change in the conception of Turkish nationalism.29 The nation is not defined in the same way in diaspora nationalisms and transnational nationalisms. Diasporas reflect a conception of the nation as a group unified from the start around a single ideal, drawing on symbols of a common past and projecting itself into the future with the same myths. With transnational nationalism, the nation is caught up in the dynamics of interactions between emigration and immigration that reveal all the heterogeneity of the population that composes this state. In other words, the desire for reunification around a common project in diaspora is replaced by the quest for recognition and legitimacy by states and supranational institutions in the transnational community. This evolution is the result of mobilization and participation in several different national spaces and thus denser relations between the country of origin and the host country. This change is also the product of the emergence of organizations that are themselves transnational or formed around an identity seeking to define itself through action, by circulating ideas, norms, and demands for recognition in different political spaces. Such is the work of the new actors born of immigration, transnationals themselves, demonstrating integration into their new country and having the ability to deal with the codes of both political spaces. The distinctions between these two types of “long-distance nationalisms” function as a typology, with all the limits that such an approach involves: a static vision frozen in time and space. Now the experience of history brings with it new dynamics that blur the border between diaspora, the transnational community, and their respective nationalist movements. This is largely due to a “transformation of experience,” to use R. Kosellek’s expression,30 in

Territoriality in Diasporas and Transnational Communities 187

which certain nationalist mobilizations of diasporas and minorities have led to the creation of a state. In this state, the mode of action and the models of reference of the population join those of the transnational community, for example, a state henceforth has become sovereign and territorial. This is the case of the Greeks in which a diasporic mobilization occurred after conquering Constantinople, giving rise to the creation of the Greek state in the nineteenth century and to a transnational organization once the state was created, following the immigration of the Greeks to Europe and the United States. These émigrés seek to maintain economic, cultural, and political ties with their country of origin. Similarly, the Armenians who have been in a diaspora situation since the beginning of the twentieth century have turned to Erivan’s government, and Armenia is becoming more present as a model of reference in this diaspora. The same question arises for the Jews with respect to Israel, in that the existence of a state has transformed the diaspora into a transnational community, in which the country of reference becomes omnipresent in all thinking and action as well as every reaction concerning the Jews outside the territory of Israel. In the case of the Kurds, it is interesting to note that it is at the intersection of the two nationalisms analyzed earlier. Their demands bring them under diaspora nationalism due to their dispersion and their demand for the right to territorial self-determination. The concentration in “dense areas”31 makes this group comparable to transborder minorities and their demand for the right to cultural and national autonomy due to their territoriality. The case of the Kurds also fits within transnational nationalism, in that as immigrants, they refer to their state of origin. Emigrated from Turkey for the most part, much like economic migrants (although many more of them have political refugee status), to the European authorities, the Kurds are a stateless people.32 In this context their mobilization finds legitimacy among supranational institutions and in host countries. The fight for territorial self-determination in the 1970s has given the Kurds a “separatist” perspective with regard to Turkey, but the demand for cultural autonomy as an immigrant “Kurdish community” with its own language, culture, and history was intended to distinguish it from the “Turkish community,” particularly in Germany, giving them access to the same resources. Their demands for recognition and the right to cultural and linguistic self-determination points to demands developed not only in an immigrant situation but also from the standpoint of a dual minority status: minority within the minority in Germany and minority within the borders of the Turkish state. Having more political resources abroad than in Turkey, they have brought their demands before the European Court of Human Rights, the Council of Europe, the European Court of

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Justice, and the European Parliament. They then can turn to Ankara to obtain recognition as a “minority,” with its cultural autonomy and its official representation, requiring Turkey to restructure its institutions, even redefine the terms of its nationalism.33 Thus the “transformations of experience” creates new dynamics in generating actors in their reference and their action that define the nonterritorial boundaries of communities and their self-determination. These dynamics flow from the reality of the nation-state and territory as well as the conception of citizenship. The Relationship to the State Nationalisms that emerge from mobilization and participation in several political spaces actually reflect multiple loyalties. First, loyalty toward the country of residence, a source of rights, second, loyalty toward the country of origin, a source of identity and emotion, and finally, loyalty toward a space

Table 8.2 Relation to the state Relation to the state Diaspora nationalism State of residence: Premodern Nature of the state Subject until1917 and citizen (Jewish nationality) Community based Citizenship Loyalty

State of origin (homeland)

Building or “restoring” it is the aim

Exchanges

None until the state is created, then diaspora transnationalization

Transnational nationalism Democratic and liberal nation-state From the state of origin or dual Multiple: states of residence, state of origin and the reconstituted transnational community Sovereign independent nationstates, production of a “diasporic identity” “Mutual dependence” and negotiation of its limits Mobilization and participation in both spaces Social and cultural transfers Redefinition of identities through immigration and nationalism of the country of origin

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linking the two states, and going beyond the state through which the transnational community, imagined as a deterritorialized nation, circulates. Globalization and more particularly, European integration have introduced a fourth axis: supranational institutions that are a new source of rights and legitimacy above and beyond states, and of support for transnational nationalism.34 Whatever type of nationalism is involved, it is in the state of origin or of reference, in this case perceived as the homeland, that the mobilizing force of collective action is drawn. In the case of diaspora nationalisms, this state becomes the objective to attain. The homeland represents the history, ancestors, and collective memory, as many elements constitute the basis of a territorial nation-state that remains to be built. As for the state of origin for transnational communities, an independent, sovereign, and territorial state, it interacts with its emigrated population through its consular networks and other institutions and organizations to propagate the nation’s official nationalism.35 It appoints official state-to-state interlocutors, and attributes a role of intermediary to political actors of immigrant stock. These actors provide the link between public and private spaces, as well as economic, social, cultural, and political spaces through the various family, commercial, and organizational networks in both Europe and in the country of origin. The state of origin thus takes part in defining or creating a diaspora, even in identifying citizens with a diasporic identity. This is reflected in changes of citizenship laws or the granting of a special status with dual citizenship. In the case of Turkish immigration, the four million people scattered throughout Europe constitute in the eyes of the Turkish political class and media a category they call “Turks abroad.” Ankara’s aim is to ensure that the emigrant populations are attached to the national ideology expressed by the Kemalist rhetoric—a perpetual allegiance to a secular form of Islam and a unified nation subject to state control, maintaining the idea of Turkish citizenship. In this case it is an extraterritorial citizenship through which the link is maintained between citizenship and nation, a citizenship linked to the nation of origin or the opposite, the nation linked to citizenship—even an extraterritorial one. In both cases it is a matter of a deterritorialized attachment36 that becomes an important resource for negotiating Turkey’s role in the European Union, even in the international system. More generally, state-supported transnational nationalism constitutes a major element in a country’s foreign policy. The same is true in relations between North Africa and North Africans in France as well as between Mexico and the United States. The relationship to the state of residence varies according to the nature of the state. In the case of the diaspora nationalisms that have developed in

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premodern states, there is obviously no question of loyalty toward the state, but only toward the community in the “religious sense.” Emancipation is what makes the difference in this respect. Pierre Birnbaum, in tracing the trajectory of the idea of Zionism from east to west across Europe, shows that it is in the east, “where the state was unable to form,” that Zionism began to develop, whereas in the west, “where the state-citizen pair had long since been formed,” the Jews had equal rights and their religious practice was confined to the private sphere.37 This ideology makes the state of residence the only state of reference and citizenship, the sole object of citizens’ loyalty. This was the case in France and Germany, despite differences in how the Emancipation and Enlightenment are conceived in these two countries. The emancipating state, by definition a protector of individual citizens’ rights, becomes the only source of loyalty for members of the diaspora who, caught up in the process of modernity defined by assimilation, do not perceive themselves as assimilated. The creation of the state of Israel changes the situation and contributes to the transnationalization of the diaspora, which now also has a reference point in another sovereign state. This change has resulted in a dual allegiance, and with that, a feeling of suspicion on the state’s part, that generates an awareness of multiple attachments: country of citizenship, country of reference, religious, and other populations of the community who feel they share the same fate as the state of reference. The process is akin to the transnational community’s relationship to the state that from the outset was founded on this trilogy,38 with the important difference that it is not a question of sharing the fate of the state of origin but rather helping to change it by transnational action. Indeed, in the case of transnational nationalism, state nationalism is transformed through immigration. Regional, ethnic, linguistic, and religious identities, kept under wraps in the country of origin during the homogenizing process of building the nation-state, reemerge in immigration due to so-called identity policies applied in democratic states. However, in most cases, political involvement in both countries structures the transnational community. This can be seen in the example of Haitians in New York and Montreal who organized a transnational community based on the political struggle against the Duvalier regime in Haiti, and against discrimination and unemployment that young secondgeneration Haitians fall prey to in Canada and the United States.39 Another example is the Kurdish movement in Europe, which, having gained a certain legitimacy in the framework of supranational European institutions such as the European Court of Human Rights, seeks recognition in the various countries of immigration and in Turkey. The same holds true for the expression of Kabyl and Berber identities and their resonance in the country of origin.

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Along the same lines, Islam, the political expression of which is combated in the migrants’ country of origin, finds support among emigrant populations and returns to the country of origin with legitimacy acquired in Europe to formulate the same demands. Thus, unlike diaspora nationalism, transnational nationalism is the product of liberal states. Economic liberalism has fostered the development of industries and services that target members of the various ethnic communities. Some of these products and services, originally rooted in local contacts, are spread thanks to the scattering of immigrants originating from the same region or country throughout a continent or even the world. Despite the cultural and linguistic diversity of their members, the Indian and Chinese communities abroad provide the best examples of such commercial expansion. The circulation of capital and goods reflects economic norms and a consumer culture spread from one country to the other via transnational actors. According to anthropologist A. Ong, this process is at the root of globalization and leads to a “flexible citizenship,” which she defines as a cultural logic of capital accumulation and social prestige. The author believes that such flexibility, due to people’s mobility and their repositioning with respect to the market, leads to new values based on a “transcendental” global market.40 Flexibility becomes one of the characteristics of the state. Transnationalized community sentiments are one consequence of multicultural policies applied in liberal democracies since the 1980s. Political liberalism, which upholds ethnic pluralism, has encouraged cultural activities led by immigrant associations within which identities are structured and redefined so as to gain recognition and representation in the state of residence government institutions. In this perspective, oppressed identity-based segments in the nation-states of origin have found legal and political support in the host country to react in both national spaces, thus introducing in each of the two cultures political norms and values coming from the other. Transnational organizations now aspire to become pressure groups able to obtain political recognition for their members in both political spaces. Transnational nationalism is achieved via “social transfers” that involve circulating ideas, beliefs, identities, and other elements of social capital from one country to the other.41 Identities return to the national territory with the same demands for recognition and representation as in the host country. They are transferred by organization militants in the country of origin to inform the country’s nationalism with new content, thereby involving the state of origin in this same process of transnationalizing nationalism in its efforts to face these new demands. According to N. Schiller and E. Fouron, “the reconstitution of the concept of state, so that both the nation and the authority it represents extend beyond states and the political power it represents extends

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beyond territorial boundaries and incorporates dispersed populations within the territory of the nation.”42 As for A. Ong, she notes that transnationality leads states to design new sovereignty strategies based on more complex and flexible relations between capital and governments. This is reflected by a shift in vertical integration specific to states toward a horizontal integration, so as to include the scattering caused by transnationality: a strategy that the author calls “zones of differentiated sovereignty.”43 Transnationality thus introduces a new relationship to the state that is characterized by “mutual dependence,” to use J. Armstrong’s expression, mutual dependence between a liberal, pluralistic state and the “mobilized diaspora.” Whereas diasporas occupied a significant place, especially in international trade, in premodern states, “mobilized diasporas” today find themselves, according to Armstrong, in a position of “international negotiation” of political decisions.44 The increased interdependence between scattered populations and both the states of origin and of residence and beyond is part of a global and complex system of interactions and is subjected to both an internal and an external negotiation process. This is what differentiates transnational nationalism from diaspora nationalism, as transnational nationalism, a product of liberal states, leads to negotiations between transnational actors and states.45 From the actors’ standpoint, such a nationalism becomes a means to wield pressure, even political clout; from the states’ standpoint, governments must negotiate the means to include in their political strategy identity-based expressions born of their relations with minority populations and “reterritorialize” their action, or else develop their own “deterritorialized” power strategies to maintain the link and loyalty of individual citizens of states despite nationalist expressions that surpass them. For states, this involves acting themselves as transnational actors in constant interaction in a deterritorialized global space where cultural and political specificities of national societies intersect with multinational activities. This becomes the state’s mode of integrating the globalization process. The paradox is, whereas nationalism beyond frontiers contributes to the weakening of the nation-state, states remain the driving force behind globalization. Despite an increasingly limited autonomy given the involvement of supranational institutions and a greater interdependence between the internal and external power struggles and political decisions, the state remains the primary actor in negotiations, defending its interests in the international arena, and the national one.46 It remains the only legal framework for citizenship, an indispensable tool for protecting individuals, despite the practice of dual citizenship, which institutionalizes transnationalism, as we have seen earlier. Transnational nationalism retains its relevance as an effective

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source of identification, resistance, and mobilization. Transnational nationalism’s deterritoriality could be behind new tensions between states and communities and, more generally, tensions in the international system posed by the question of self-determination; this is a question that should be addressed. Self-Determination and the Transnational Nation In the case of transnational nationalism, communities, analyzed in terms of “embryonic nations” in nation-states of residence, formulate no territorial demand and devise no strategy for self-determination. Contrary to the project of self-determination typical of diasporas based on the reterritorialization or restoration of a real or mythical territory, the building of a “transnational nation” is based on the identification of its members to a real and imagined whole on the basis of multiple attachments (national, territorial, religious, linguistic) but also on the basis of common experiences (colonization, exile, or emigration) with reference to a nonterritorial “us,” as a nation that takes hold in what are known as diasporic spaces. In the self-determination of such a nation, it is personal autonomy that takes precedence and is displayed through networks of relationships developed by individuals. This occurs via rhetoric and timely actions as individuals seek to build identitybased frontiers that transcend those of the states and create a nonterritorial political community. Self-determination for the transnational nation does not imply cultural autonomy on a territorial basis, but rather recognition within the framework of state structures, an “institutional assimilation,” serving as the basis of equality for the differences that arise in the public space of Western democracies. From that standpoint, demands for recognition take on a racial, ethnic, or a religious character, depending on the interactions with the community’s states of residence, and are based on forces outside the state territory. The terms of this recognition vary from one state to another according to the definition that each gives to minorities and how the latter express their demands for equal rights. In the United States, for example, Black nationalism, born in 1850, is perceived as the foundation of a sense of multifaceted solidarity: territorial, religious, cultural, or even class-based, with an aim to combat racial discrimination. The primary objective expressed by the proponents of Black nationalism militants is to be “in charge of their fate” by controlling and preserving their own political and cultural organization, and to find a political alternative to the racial policy in the United States, a way of “deracializing” themselves.47 It would be misleading to limit the Black question in the United States to a nationalist differentiation inside the nation.

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However, the “Black nation” in this context refers to a “homogenized” culture based on color and the quest for political recognition. Recent studies in the United States have developed other concepts such as that of “pan-ethnicity.” According to its author, Y. L. Espiritu, this concept underlines “the generalization of solidarity among ethnic subgroups.”48 He is referring in particular to the Asian population established in the United States, a population that is internally diverse in terms of nationality, language, and religion. Pan-ethnic identity would, by definition, be a multiple identity in which groups of various origins blend into a single group with the aim of building a political unity that draws its legitimacy in its institutions and its self-determination on the basis of “race.”49 Other times, other “races,” but the issue remains the same. Like Black nationalism, analyzed as an innovative policy developing new paradigms to understand the history of racial and ethnic relations in the United States, pan-ethnicity is hailed by its author to be the future of ethnicity, in which the group’s internal diversity would be bound together by identity-based and institutional links, thus giving rise to new dynamics.50 In Europe, can Islam, the common denominator for much of the postcolonial immigration population, lead to similar interpretations, that is, an encompassing identity that transcends national, linguistic and ethnic, even religious (the brotherhoods), and political differences? Pan-Islam, pan-religiosity or umma reinterpreted in such a way as to reframe all the internal diversity into an “imagined community” that loses its religious content and instead defines itself as a cultural nation, could give rise to a form of nationalism defined more as a cultural nationalism than an ideological or state nationalism.51 This nationalism would be based on a sense of belonging to culture that sees itself as “uprooted,” leading to redefining it in a new environment. Its adaptation or resistance as well as its radicalization lends it a new scope and content in which nationalities, ethnicities, and religion are blended, cultivating a culture that presents itself as “different” from the environment through developing unifying discourses about the experience of “being Muslim in Europe.” International organizations step in to promote a European Islam seeking to “uniformize” differences. Taking advantage of the importance of religion among migrants and its mobilizing force, they seek to go beyond the national diversity of Muslims settled in Europe to propagate a single identification drawn from a common religion and thus create a transnational solidarity based on Islam. This is despite oppositions in the country of origin that have rejected the politicization of Islam (source of conflict with the authorities) that these organizations seek to promote. All this coexists with a globalized Islam described by O. Roy as made up of networks in which the countries of origin lose their role of control and are no longer

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any more than a distant reference.52 The new actors who position themselves as protectors, defenders, and financiers of minority Islam throughout the world are not even necessarily of immigrant stock; they are individuals using as a base countries, such as Saudi Arabia, to promote Islam throughout the world, or Islamic NGOs whose actions move from charity to political mobilization. Such modes of organization politicized around Islam concern only a slim portion of the Muslim population in Europe. No study so far has been able to gauge membership rates in these associations or their actual impact on the populations concerned. One thing is clear: with the debate over current issues involving Muslims, such as the Rushdie or headscarf affair, or more broadly, the Israeli-Palestinian conflict, Islam has become a refuge: a source of identification with causes “agitating the world” at the local, transnational, and global level. Since mobilization around the Israeli-Palestinian conflict, Islamist and religious associations—even the most secular Muslim organizations as well as other political groups—have been rallied over to their cause. This opening up to the “universal” lends greater legitimacy to the “identitybased recentralization” around Islam. Such an “identity-based recentralization process” is expressed both on an everyday basis and in long-term political goals; it is developed in different domains and territories, real or symbolic, trying to re-establish social relations and a common identification. A more abstract identification to a “moral community” is fueled by outside events such as wars, conflicts that take place elsewhere, actions that convert old grievances into new aspirations, colonial relations yielding to a quest for and an expression of local and transnational autonomy. This identification can be seen in the violence perpetrated in the name of a cause that directly or indirectly affects Islam perceived as a “global victim,” an image that is reinforced by the rhetoric of humiliation and domination by the West propounded by its militants. The examples are numerous and on the rise since 1989 following the Rushdie affair in Great Britain and the headscarf problem in France, spiraling violence in the Middle East, the September 11, 2001, attacks, the war in Iraq, as well as many international events that have contributed to producing heroes and victims among the young, influencing their way of dress, speech, and action as a sort of deterritorialized revenge that is nevertheless localized in urban areas. Violence also allows a form of territorialized and ethnically charged collective expression to develop, recentering the diversity of the delocalized population around new subjectivities nourished by unifying discourses that seek to redefine solidarities and build a coherent whole.53 These references produce an identity that is not linked to the immediate space but rather to a nonterritorial “moral community.”54

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Territorial self-determination for the Palestinian people situates the conflict in the perspective of an actual war between nations. Its implications, which exceed its local and geographic scope, change the idea of the nation (be it Palestinian or Israeli) into a religious community that draws out both voluntary and involuntary identifications as well as transforms a territorial conflict into extraterritorial nationalist tensions. Perhaps in this perspective, the rhetoric of umma, the global Muslim community, loses its solely religious content and presents itself as a transnational and nonterritorial nation. However, not only wars and conflicts generate an extraterritorial identity, nor is it only via immigration that Islam contributes to local and nonlocal elements of identification. Similarly, it is not only Islam that develops nonterritorial modes of belonging. Nonterritoriality is part of a globalization process generally affecting religions on the whole, perhaps Islam particularly. This may be the result of the politicization of Islam since the 1980s, expressed in various ways throughout the world. Even in countries where Islam is the majority religion, where attachments are highly territorialized, discourses exceeding national limits are developed in a similar fashion. The rhetoric surrounding both territorialized and nonterritorialized Islam seems to be the basis for a liberation movement or a new national emancipation movement, with a semblance of identification with a new entity. But in what way is this entity a “transnational nation”? Is rhetoric that seeks to create an entity enough to generate transnational nationalism? This entity is not built upon common “ancestors,” or on a quest for national selfdetermination, nor is it easy to talk about collective organized action with a view to building a nation-state, thus of nationalism.55 Membership is determined neither by blood nor by soil; it is not based on the civic principles that unite individuals claiming membership in this nation on the same territory. Moreover, the references are first the product of the nation-states of origin, in which linguistic, national, and ethnic attachments take precedence over a solely religious identification, even if the latter is not excluded from the first three. Likewise, allegiances seemed to be fleeting, temporary, and opportunistic. So what makes this entity a nation and its expression nationalism? According to Gellner, nationalism is the product of major transformations. He refers in particular to the Emancipation that dissolved the old isolated communities and united them around a political community. Today the transformation is taking place not through “grouping,” but on the contrary, by the dissociation of communities from the political community, by the delinking of citizenship (territorialized rights) and nationalities that are expressed beyond state borders: replacing territory with space.

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The transnational nation fits within the global space that does not reflect but rather produces an identity and generates a mode of participation beyond borders, as can be seen in the involvement of actors in strengthening transnational solidarities. Accusing states of their deficiencies in human rights or citizenship rights as the basis of democratic equality, these actors seek to channel the loyalty of individuals in a territorialized political community toward a nonterritorialized political community, thus redefining the terms of membership and allegiance to a global nation. This is buoyed by the rhetoric of unity diffused due to modern technology that produces a single idiom, that of images, even a single language, English, as the language of participation on Web sites and e-mail exchanges.56 Conclusion Cultural, ethnic, and religious communities recognized as such by states and that increasingly draw support from transnational solidarities are guided mainly by a deterritorialized and “imagined geography.” Competition between states and communities in the realm of identity and citizens’ loyalty has thus spread to the international scene and has led states to extend their actions, as transnational communities have, beyond their territory to deploy their sovereignty. The extension of state power as it is practiced in relation to transnational communities causes new power struggles to emerge between states and communities. Groups draw their power from their mobility, capacity to switch from one network of influence to the other, and the normativity of international and supranational institutions (NGOs and European institutions) to exert pressure on states. States react in order to maintain control over populations on the move, not only within a specific territorial space but also across borders. Transnational nationalism or nationalism without territory as history in the making does not exclude states; on the contrary, both individual and collective actions are directed primarily at nation-states, their economic power symbols, and their founding myths. Transnational nationalism in no way announces the end of territories or the end of territoriality. Although space may replace territory in the building of an imagined community, it relocalizes extraterritorial references and redefines the local borders of a community. Nor does the absence of territory imply the absence of identity-based frontiers that determine inclusions and exclusions. The actors’ motivations on the contrary remind us of a romantic-era conception of the nation, the founding element of which today is an ethnically charged religion in which emotions win over rationality, despite the use of modern technology as a tool of transmission and persuasion.

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On the whole, transnational nationalism raises more questions than it answers. How can a group integrate the international system as an autonomous, nonterritorial nation? What configuration of the international legal system is adapted to this evolution of human society? However, the most important question raised by such an evolution is that of the nature of conflict that such nations engender, as well as the reactions of states. How can we define the terms of negotiation when extraterritorial conflicts have effects on the national territory? How can allegiances, identities, even conflicts be “reterritorialized”? Notes 1. Another version of this article appeared in Benhabib, S., I. Shapiro, and D. Petranovich, eds. Identities, Allegiances and Affinities (Cambride: Cambridge University Press, 2007), under the title, “Transnational Nationalism.” 2. See Y. Lacoste, “Les territoires de la nation,” Hérodote, 62–63, (3rd quarter 1991): 1–21. 3. C. Fayes, “Towards a New Paradigm of the Nation. The Case of the Roma,” Journal of Public and International Affairs, 1997. 4. The European Union supports the Roma populations in Central and Eastern Europe where they make up 5 percent of the population, by setting up mechanisms and programs to improve their welfare. 5. O. Bauer, La question des nationalités et la social-démocratie, T. 2 (Montréal: Guérin Littérature; Paris, Arcantère, 1987), 338. 6. It is beyond the scope of this chapter to mention all the literature on and theories of nationalism. We will confine ourselves to referring to the debates regarding the bases for nationalist sentiments, their role in building nation-states or in mobilization along these lines. 7. A. D. Smith, Ethnic Origins of Nations (London: Blackwell, 1986). 8. W. Connor, Ethnonationalism: The Quest for Understanding (Princeton, NJ: Princeton University Press, 1994), 67–89. 9. See in particular John Breuilly, Nationalism and the State (Chicago: University of Chicago Press, 1982). 10. E. Kedourie, Nationalism, 4th ed. (New York: Oxford University Press, 1993). 11. E. Gellner, Nation and Nationalism (Ithaca, NY: Cornell University Press, 1983). 12. Thomas W. Pogge, “The Bounds of Nationalism,” in Rethinking Nationalism, ed. J. Couture, K. Nielsen, and M. Seymour, 463–504, (Calgary: University of Calgary Press, 1999). 13. R. Ware, “Nations and Social Complexity,” in Couture, Nielsen, and Seymour 1999, 133. 14. B. Anderson, “Introduction” in Mapping the Nation, ed. Gopal Balakrishnan, 1–12, (London: Verso, 1998). 15. See John Breuilly, Nationalism and the State, 52.

Territoriality in Diasporas and Transnational Communities 199 16. B. Anderson, “Long-distance Nationalism,” in Spectres of Comparisons. Nationalism in Southeastern Asia and the World, B. Anderson, 58–74 (London: Verso, 1998). 17. Anderson, “Long-distance Nationalism.” 18. N. Glick-Schiller and G. Eugen Fouron, George Woke Up Laughing. Long-distance Nationalism and the Search for Home (Durham, NC: Duke University Press, 2001), 22. 19. Glick-Schiller and Fouron, George Woke Up Laughing, 22. 20. E. Gellner, Nation and Nationalism, 92. 21. E. Gellner, Nation and Nationalism, 88–110. 22. See H. Seton-Watson, Nations and States. An Inquiry into the Origins of Nations and the Politics of Nationalism (Boulder, CO: Westview, 1977), see especially “Diaspora Nations,” ch. 10, pp. 383–417. 23. J. A. Armstrong, “Mobilized and Proletarian Diaspora,” American Political Science Review 70, no. 2 (June 1976): 393–408. 24. For a thorough analysis of the concept see the works of S. Dufoix, particularly Notion, concept ou slogan: qu’y a-t-il sous le terme de diaspora?, paper delivered at the conference “2000 ans de diaspora,” Poitiers, France, February 2002. See also Diasporas (Paris: PUF, 2003) (Collection Que sais-je?). 25. The use of the term in Hebrew refers precisely to the concept of exile (galuth), in S. Dufoix, “ Notion, concept ou slogan.” 26. W. Saffran, “Diasporas in Modern Societies: Myths of Homeland and Return,” Diaspora 1, no. 1 (1991): 83–99. 27. M. Cohen, Zion and State. Nation, Class and the Shaping of Modern Israel (New York: Columbia University Press, 1987), 46. 28. See L. Radi, “La crise de la territorialisation du nationalisme diasporique palestinien : une gouvernance transantionale inachevée,” in Nationalismes en mutation en Méditerranée orientale, ed. A. Dieckhoff and R. Kastoryano, 197–225 (Paris: Ed. du CNRS, 2002); See also B. Kodmani-Darwish, La diaspora palestinienne (Paris: PUF, 1997). 29. R. Kastoryano, “Le nationalisme transnational turc ou redéfinition du nationalisme turc par des ‘Turcs de l’extérieur,’” in Nationalismes en mutation en Méditerranée Orientale, ed. A. Dieckhoff and R. Kastoryano, 249–66 (Paris: CNRS Edition, 2002). 30. Reinhart Kosellek, L’expérience de l’histoire (Paris: Gallimard, Seuil, 1997), 206. 31. Expression used by O. Bauer in reference to national minorities, who views them as “linguistic islands” found in “dense areas of settlement”; Bauer, La question des nationalités, 338. 32. The Kurds (identifiable solely by self-definition) make up approximately 30 percent of the Turkish immigrant population, spread proportionally throughout various European countries. 33. R. Kastoryano, “Le nationalisme transnational turc.” 34. The demands accompany a territorial or regional nationalism in reference to a state, basing themselves on human rights and minority rights principles, a

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35.

36. 37. 38.

39. 40. 41. 42. 43. 44. 45. 46.

47. 48. 49. 50.

nationalism legitimated and supported by European institutions. They draw justification from the European Charter for Regional or Minority Languages, referring to languages deprived of territory, which encourages nationalist minority action. R. Kastoryano, “Le nationalisme transnational turc, ou la redéfinition du nationalisme par les ‘Turcs de l’extérieur.” On the intervention of the state in immigration-related issues, see the recent article by P. Levitt and R. de La Dehesa, “Transnational Migration and the Redefinition of the State: Variations and Explanations,” Ethnic and Racial Studies 26, no. 4 (July 2003): 587–611, footnote in English. R. Kastoryano, “Nationalism transnational turc.” P. Birnbaum, Sur la corde raide. Parcours juifs entre exil et citizenship (Paris: Flammarion, 2002), ch. 7 and 8; for the excerpts cited, see pp. 151–52. This triangular relationship has also been analyzed by R. Brubaker in his study on national minorities. The author draws an axis between the minority community, the state of residence, and the external homeland, and the state of reference that shares the same cultural traits as the minority (Brubaker, R., Citizenship and nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992). S. Vertovec uses the same expression to distinguish the multiple identities in diaspora and the relations between national group, minority group, and the state of origin; see “Religion in Migration, Diaspora and Transnationalism,” in Research on Immigration and Integration in the Metropolis, Vancouver Center of Excellence, March 2002 (Working paper series no. 02/02). M. Labelle, F. Midy, “Re-reading Citizenship and the Transnational Practices of Immigrants,” Journal of Ethnic and Migration Studies 25, no. 2 (1999): 213–32. See A. Ong, Flexible Citizenship. The Cultural Logics of Transnationality (Durham, NC: Duke University Press, 1999). P. Levitt, The Transnational Villagers (Berkeley: University of California Press, 2001). N. Glick-Schiller, G. Eugen Fouron, George Woke Up Laughing. A. Ong, Flexible Citizenship, especially ch. 8. J. Armstrong, “Mobilized and Proletarian Diaspora.” R. Kastoryano, La France, l’Allemagne et leur immigrés. Négocier l’identité (Paris: Armand Colin, 1997). Argument that Samy Cohen forcefully defends in his book La résistance des Etats, particularly with regard to the influence of supranational institutions (Paris: Seuil, 2003), translated as The Resilience of States [London: Hurst, forthcoming]). D. E. Robinson, Black Nationalism in American Politics and Thought (New York: Cambridge University Press, 2002). Y. L. Espiritu, Asian-American Pan-Ethnicity. Bridging Institutions and Identities (Philadelphia: Temple University Press, 1992). Y. L. Espiritu, Asian-American Pan-Ethnicity. The same goes for people linked by the Spanish language, but of different nationalities and “races.” They have defined a Latino identity in reaction to so-called ethnic policies but also according to their own cultural and political motivations,

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51. 52. 53.

54.

55. 56.

in other words, resistance to assimilation, affective ties with the country of origin, and a new conception of “political community” that ties together several spaces. See in particular Michael Jones-Correa, Between Two Nations, The Political Predicament of Latinos in New York City (Ithaca, NY: Cornell University Press, 1998). Typology drawn up by C. Gans in The Limits of Nationalism (New York: Cambridge University Press, 2003), ch. 1. O. Roy, L’islam mondialisé (Paris: Le Seuil, 2002), translated as Globalized Islam (London: Hurst, 2004). It is important to note, however, that identification with the Muslim world does not necessarily imply identification with the Arab world. Attitudes toward conflicts often constitute the dividing line between national Muslim communities. In Great Britain, for instance, the majority of the Muslim population of Indian and Pakistani stock does not identify with Arab nationalism. In Germany, the Turks felt mainly concerned by the war in Kosovo, which sparked identification with the Bosnian Muslims because of their historic and cultural ties. But it is above all the Israeli-Palestinian war that without a doubt provides elements by which to analyze territorial and nonterritorial attachments, local and global conflict, state nationalism and transnational nationalism, and their complex interrelations. M. Williams develops instead the concept of nonterritorial moral citizenship. See Non-Territorial Boundaries of Citizenship: The Function of Self-Rule and SelfProtection, paper delivered at the Identities, Affiliations and Allegiances Conference, Yale University, October 3–5, 2003. See M. Hechter, Containing Nationalism (New York: Oxford University Press, 2000), 18–19. With regard to Islam on the Internet, see the works of Olivier Roy.

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PART III

Toward a Postnational Constellation? Politics and Policy Formation in Europe

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CHAPTER 9

Borders, Territory, and Migration in the European Union From the Politics of Migration in Europe to the European Politics of Migration Andrew Geddes

Introduction

T

his chapter explores the relationship between migration and European integration. It argues that, while the meaning of territory and territoriality have changed as a result of European integration, this does not mean that migration controls in Europe have been deterritorialized. Rather, it argues that there has been a “rebundling of authority”1 at the EU level as a means of pursuing new ways of regulating international migration centred on the European Union (EU) as a bounded space that simultaneously removes some boundaries, redefines others, and creates new boundaries. This rebundling is then explored through analysis of three key dimensions of EU action on migration and asylum: the constitution of a migration policy field at EU level, EU action on immigrant integration, and the external dimension of EU migration and asylum policy. The chapter thus argues against those accounts that identify the end of territory,2 the loss of control3 or a borderless world4 that leads to the “end of the nation state”5 if it is not already a “nostalgic fiction.6“ A world of endisms, postisms, and beyondisms, as T. K. Oommen7 notes, can be contradictory as “endisms indicate a world without boundaries, postisms announce the emergence of fresh boundaries and beyondisms allude to the elongation of boundaries.”8 The argument in this chapter is that the meaning of territory and practices of territorial management in Europe have changed and, among other things, this means that rather than analyzing the politics of migration in Europe we now need to explore the European politics of migration. This is done by

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drawing from the accounts of political geographers about the meaning of bounded space in Europe, by then specifying the nature, form, and location of Europe’s border relationships and exploring how these have changed, and then relating these to three key elements of EU migration policy: its internal constitution, its action on immigrant integration, and its external dimension. International Migration in Europe’s Bounded Space The development, consolidation, and transformation of the European state system has played a key role in structuring migration to Europe.9 This was evident during the period of guest worker recruitment and postcolonial migration that followed World War II and since the end of the cold war. Key differences since 1989 have, first, been the widening of migration to the extent that all twenty-seven EU member states are sending, receiving, or are transit countries (usually a combination of all three) and, second, the EU’s increased responsibility for migration and asylum. This can be said to have prompted a geopolitical widening of migration and a spatial reconstruction of policy responses. The effect of changes in the European state system arising from European integration on international migration are the focus of this chapter. The chapter’s central assumption is that sense-making processes10 at state borders give meaning to international migration. If, then, border relations within and between European states change then this will necessarily impact on these sense-making processes. Consequently, analyzing and exploring changes in the meaning, practice, and location of Europe’s borders as a result of European integration can help demonstrate the meaning of international migration in twenty-first century Europe. The argument is not that European states have been rendered redundant, obsolete, or irrelevant, but rather that the meaning and practice of state authority in Europe have changed and that European integration is an integral element of these changes. Consequently, while population controls at state borders are necessarily central to analyses of international migration,11 it is also the case that European integration changes the meaning and location of borders and raises questions about territory, territoriality, and population control. Put in the language of sovereignty, it can be said that European integration now impinges on border controls as one use of sovereign authority, the other uses being external recognition, the ultimate right to decide, and the capacity to exclude unwanted authority structures.12 The infringement of sovereignty is not new; what has been questioned is the extent to which state sovereignty remains a constitutive principle for the organizing of territory. Territory is closely linked to sovereignty through the control of bounded

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space that can be used to displace personal relationships, between controlled and controller, by relationships between people and the law of the place.13 The EU also connects domestic and international politics with migration located along what James N. Rosenau14 calls the “domestic/foreign frontier” where, as he puts it, “the international system is less commanding, but still powerful. States are changing, but they are not disappearing. State sovereignty has been eroded, but it is still vigorously asserted. Governments are weaker, but they can still throw their weight around. At certain times publics are more demanding, but at other times they are more pliable. Borders still keep out intruders, but at other times they are more porous” (Rosenau 1997, 4). Rosenau characterizes the domestic/foreign frontier as an arena where domestic and foreign issues “converge, intermesh or otherwise become indistinguishable within a seamless web” (Rosenau 1997, 4). This insight is particularly pertinent because of the ways in which responses to international migration necessarily involved both domestic and international politics, or as Barbara Schmitter Heisler15 puts it, need to be understood as both societal and international issues with linkages made across these levels. Yet, at the same time, international migration is an example of how borders as points that demarcate one state from another have long performed the role of managing the contradictions and tensions of the international system as they sift populations and decide who can enter a particular states’ territory and on what basis. R. B. J Walker thus sees borders as the “dangerous edges—the awful discriminations between us and them—that constitute our spheres of domestic comfort and external distress.”16 European integration means that sovereignty (or the uses it is put to) has changed, or been “rebundled” as Christopher Ansell17 puts it, and not that it has “ended” because it simultaneously removes, redefines, and creates new boundaries.18 In terms of removal, single market integration has allowed people to move more freely within the EU while the Schengen agreement has allowed passport-free travel among participating states.19 In terms of redefinition, free movement has not been free for all; EU member states have acted collectively to develop new forums for the regulation of international migration. In terms of new boundary creation there have been important developments, too. It is these developments that are central to this chapter’s attempt to explain the meaning of bounded space in the contemporary EU and its relationship to international migration. In particular, a tension is identified between boundary removal, boundary build-up, and boundary shift as the EU pursues single market integration, develops migration and asylum policies, and expands its membership. Boundary build-up could be seen as analogous with approaches to EU migration that emphasize securitization with both a discursive dimension

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and evident, too, in the practices of security agencies and security professionals.20 Boundary build-up has been defined by Mark Purcell and Joseph Nevins21 as “complex interchanges between state actors and groups of citizens [that] produced a set of deep concerns about the ethno-cultural, socioeconomic, and bio-physical security of the nation, all of which are inherently geographical given their inextricable relationship to a particular territory. The boundary build-up was thus a territorial strategy to achieve that security and assuage those concerns.” Boundary build-up is central to the “border games” evident at the Mexico-U.S. border22 and, as Wayne Cornelius23 puts it, to “death at the border” as some migrants lose their lives trying to cross international borders of inequality such as that between the United States and Mexico and between Europe and its southern neighbors. The militarization of the Greek-Albanian border or the Spanish-Moroccan border may be redolent of the “border games” played on the U.S.-Mexican border as other borders that separate relative prosperity from high levels of deprivation. The EU context differs because it is a unique supranational organization that possesses the power to turn treaties agreed between states into laws that bind those states, or as Wayne Sandholtz and Alec Stone-Sweet24 put it, to institutionalize a constitutional framework provided by treaties agreed in public international law between participating states (even in the muchnoted absence of a single document formally labelled as a “constitution,” the EU legal system does have constitutional features). Another difference between Europe and North America is that the EU is engaged in a significant project of boundary shift. Since 2004, membership has expanded from fifteen to twenty-seven member states, with others in the queue, including Turkey.25 This has helped induce a much-analyzed “external” dimension to EU action.26 An external dimension to migration policy is now in itself new. States have long sought to influence migration flows, as has been shown for the United States as far back as the eighteenth century.27 More recently, Australia sought a “Pacific solution” to the asylum issue.28 What is new in the EU context is the attempt to act through a unique supranational organization bringing together twenty-seven states (at time of writing) with law-making powers and a range of other “softer” governance tools at its disposal in order to influence migration policy in nonmember states. Boundary shift imparts real resonance to the meaning and practice of borders, territory, territorial management, and population control in the contemporary EU. Borders, Territory, and Territoriality Removing, redefining, and re-creating borders in the EU reveals the constructed, contingent, and contested notion of the border. It is, of course,

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self-evidently the case that borders understood as social processes and human creations are constructs; what else could they be? They acquire power as they become naturalized in social and political discourse.29 It then becomes more interesting to explore the contingent basis for their development, or, put another way, to examine why borders acquire particular meanings at particular points in time and for particular purposes. If contingency and contestation are the focus then notions of territory and territoriality are necessarily integral to the analysis of borders. Here there is much to be learned from political geographers who have explored notions of bounded space.30 States can be understood as power, wealth, social, and cultural containers.31 While the containers are not (and never have been) leakproof, it is also likely that “the container is too full”32 to imagine that states have somehow become irrelevant or redundant. Territory as the basis for social organization can be understood as “a pattern of behaviour whereby living space is fragmented into more or less well-defined territories whose limits are viewed as inviolable for their occupants.”33 Territory is then “a material, spatial notion establishing essential links between politics, people and the natural setting” and serving as a “psychosomatic device . . . related to the human striving for security, opportunity and happiness.”34 Territorial politics center on “fixed and mutually exclusive enclaves of legitimate domination.”35 European integration could then be understood as an aspect of what Ruggie sees as the “unbundling” of territory, in favor of a “non-territorial, functional organisation of political authority.”36 As a counterpoint to Ruggie’s postulation of “unbundled” territory, Ansell37 suggests that it may be more appropriate to think about the “rebundling” of authority within “bounded space” that now has a strong EU dimension. Rebundled authority may create new possibilities to develop regional responses to migration centered on the EU that creates forms of bounded space within which states continue to play a key role even though this role has changed. In turn this means neither the end of territory nor the loss of control.38 As Anderson39 notes, such endisms are improbable and potentially cataclysmic because there is and remains a highly developed sense of territoriality in Europe. This is not to say that this remains static and fixed on immutable units called nation-states, but rather that territoriality as a spatial strategy “to affect, influence and control”40 is closely related to the forms of bounded space created in Europe, that is, to the European state system since the nineteenth century as it has developed, as it has changed, and as it has structured international migration.41

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Europe’s Border Relationships and the Meaning of Migration So far I have argued that borders, territory, and territoriality remain central to the analysis of international migration in Europe. The purpose of the remainder of this chapter is to explore how the meaning of borders and territory have changed and to understand how these changes then affect understandings of and responses to international migration in its various forms. To begin with, it is useful to specify the kinds of border relationships that are the focus of this chapter. Europe’s borders may be “hard,” “soft,” “multifunctional,” or display their “sharp edges.”42 Softer borders may occur when the Europeanization of neighbors is higher or when there is closer correspondence with EU norms. Europe shows its sharper edges when there are concerns about lack of correspondence with EU objectives in neighboring states and regions and concern that countries may not be able to control their borders. This still leaves open the question of what is meant by the term “border.” Bartolini43 sees borders as defining the outlines of political-administratively organized territories. If we try to be more precise about these “outlines” then it is possible to distinguish between territorial borders, organizational borders, and conceptual borders and to think about how they play a role in shaping understandings of and responses to international migration.44 This threefold distinction is an heuristic device specifying processes that underlie the core features of the systems of categorization and classification that are integral to the debate about international migration. Territorial borders are central to the analysis of international migration because they are the points at which the state’s sovereign power to exclude are most evident and the points at which sense is made of international migration as migrants are assigned to categories. Territorial borders are also the easiest to communicate because they require only one kind of marker: the boundary.45 This “communication function” is particularly important for state boundaries.46 Organizational borders such as those determining access to labor markets and welfare states also play an important role in shaping understandings of and responses to international migration.47 Immigration has been seen as a challenge to the welfare state. Herbert Kitschelt asks, “[Does] the multiculturalization of still by and large homogenous or ethnically stable Western Europe . . . lead to a decline of the welfare state?”48 Gary Freeman49 argues that immigration has been “a disaster” in the sense that “it has led to the Americanization of European welfare politics.” Philip Martin50 argues that migration challenges Europe’s “relatively structured and rigid labour market and economy” (when compared to the United States). Others challenge the

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extent of this erosion and contend that welfare states are a changed, but durable and valued, aspect of the European political scene that serve as an important source of political legitimacy for national governments.51 Maurizio Ferrera,52 however, sees European integration and other challenges such as migration as “weakening and tearing apart those spatial demarcations and closure practices that nation states have built to protect themselves.” If the capacity of welfare state boundaries to “cage” actors and resources has diminished, then issues such as European integration and immigration challenge the territorial basis upon which welfare states are organized, the symbolic functions of group membership and welfare state identities, and as a result, become a basis for political contention.53 Ferrera then identifies a new spatial politics of social protection in Europe. Conceptual borders are the fuzziest and most difficult to communicate but are central to current debates about migration because they serve as markers of belonging, entitlement, and identity. It is at this level that borders can seem at their most contingent and contested as notions of community, identity, belonging, and their antonyms are mobilized in public debate about migration and its effects on receiving states. Conceptual borders have been a key element of the debate about immigrant integration, within which the EU has also begun to play a role, as discussed later in this chapter. So far I have developed some conceptual foundations that provide a surer footing for the analysis of “bounded space” in the EU and its implications for territory, territoriality, and population control. The remainder of this chapter will explore three issues that tease out core elements of the relationship between the removal, relocation, and re-creation of Europe’s borders and boundaries. These are, first, the internal constitution of EU migration and asylum policy; second, the emerging EU debate about immigrant integration; and third, the external dimension of EU migration policy. The concluding section then draws together issues raised in each of these sections to reflect on their implications for the meaning of bounded space in the contemporary EU. The aim is not to provide an exhaustive account of EU migration policy, but rather to pick up key themes that relate to notions of boundary removal, boundary build-up, and boundary shift that illustrate the continued resonance of territorial and territoriality in EU migration policy. The Constitution of the EU Migration Policy Field This section argues that EU action on migration and asylum has been driven by member state interests in finding new ways of resolving domestic problems.54 There has been a strong intergovernmental drive behind the development of cooperation and integration. This, however, is only part of the story

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because it neglects the characteristics of the networks of transgovernmental action that have developed around migration and asylum for more than thirty years and have changed the meaning and practice of European migration policy. This has been particularly the case since the 1990s, the Maastricht Treaty’s creation of a Justice and Home Affairs “pillar,” and the important developments introduced by the Amsterdam Treaty, which entered into force in 1999. On this basis it has now become meaningful to talk about a common EU migration and asylum policy, albeit covering some but not all aspects of migration and asylum, with labor migration a noticeable omission so far. The Maastricht Treaty acknowledged migration and asylum to be matters of “common interest,” not the basis for a “common policy.” It formalized longer-standing patterns of cooperation that had been established since the 1970s as the EU developed cooperation between interior ministries and security agencies initially on terrorism but later on the range of security challenges raised by single market integration and enlargement. The result was the creation of a security “frame” that gave meaning to international migration as a European issue and played a key role in constituting the EU migration policy field and the institutions and interest mobilized within it.55 While Maastricht provided a new base for cooperation, its decision-making processes with their reliance on conventions in international law and unanimous agreement made it almost impossible to act. There was, however, the will to establish more common EU structures and the template from which to draw in the sense that the Schengen system was a free movement laboratory since the 1980s.56 The Amsterdam Treaty of 1997 defined the EU as “an area of freedom, security and justice,” created a new Title IV of the treaty covering free movement, migration, and asylum, brought Schengen within the treaty framework, and created scope for antidiscrimination legislation on the basis of race and ethnic origin. The significance of this was that migration and asylum were taken from the intergovernmental pillar created by Maastricht to be placed within the main treaty, which meant that common migration and asylum policies could develop based on binding EU laws (as, indeed, to some extent they have). Migration and asylum priorities were established by the member states at a meeting held in Tampere, Finland, in October 1999.57 Four key elements of a common EU approach to migration and asylum were specified: partnership with countries of origin; a common asylum system, fair treatment for third country nationals, and management of migration flows. These objectives were renewed and updated by the Hague Programme to carry through EU action until 2010. The Hague Programme included partnership with third countries to improve their asylum systems, to tackle illegal immigration, and to implement resettlement programs, as well

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as a policy to expel and return illegal immigrants to their countries of origin and the creation of a fund for the management of external borders operated by the Warsaw-based EU agency FRONTEX (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union).58 To summarize these developments since the Amsterdam Treaty, it is possible to say that they have addressed the development of a common response to “unwanted” forms of migration, particularly asylum and illegal immigration, and have made only small steps toward a common approach to admissions.59 The point here is that boundary removal within the EU as a result of single market liberalization has raised new issues of territorial management and population control resolved through EU action that have taken a particular form (see the next section) and been directed at certain forms of migration. This can be understood as an EU-level reflection of the core debates about openness and closure that are central to migration policy. Essentially, the EU is now playing a role in the development of new controls against unwanted forms of migration such as asylum and illegal immigration that are seen as having potentially damaging consequences for organizational borders of work and welfare and conceptual borders of belonging, entitlement, and identity. A powerful explanation for these developments focuses on the EU as a new arena for the pursuit of control strategies where the executive branch of member state governments face fewer legislative and judicial constraints than they do at a national level. This tends to posit an intergovernmental, statecentered focus to the analysis of EU migration that may not fully capture the new politics of bounded space in the EU and the dilemmas posed by boundary removal, boundary build-up, and boundary shift. At the same time, approaches that emphasize supranational leadership may also be deficient because they tend to focus on leadership roles for institutions such as the European Commission, which in the area of migration and asylum has often been a follower of member state agendas rather than the leader of a distinct European agenda. Helen Wallace60 seeks to avoid problems of a simplistic intergovernmental, supranational dichotomy and identify key elements of the migration and asylum field that fall within the domain of what she calls “intensive networks of transgovernmental action.” The important point here is that these networks are sectorally based and emphasize links between informal and formal modes of social and political action. The basic insight is that, for more than thirty years, cooperation on internal security has evolved in the form of an often informal “wining and dining.” Still this has created shared understandings of issues, such as European concerns and changing the strategic environment within which actors operate by making calculations about the

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stances and positions of other EU states a necessary part of the decision set of national actors.61 This then raises the question of the extent to which the actors operating within this European migration policy field have become, in some sense, “European” rather than national actors and have been socialized into EU ways of doing things. Socialization can be defined “as a process of inducting actors into the norms and rules of a given community. Its outcome is sustained compliance based on the internalization of these new rules.”62 Jan Beyers63 identifies Type I socialization with a key role played by domestic political contexts, as well as other factors such as career structures for senior officials that remain nationally based. Type II “thicker” socialization occurs when agents “go beyond role playing and imply that agents accept community or organizational norms as the right thing to do.”64 Research suggests that the impact of EU socialization is weak65 and that EU dynamics are secondary to those operating at the national level.66 While research evidence tends to suggest “thinner” Type I socialization, Lewis’s analysis of the national representations at the EU level (COREPER [Committee of Permanent Representatives within the EU]) suggests that a rigid distinction between logics of consequences and of appropriateness can neglect the ways in which “national and supranational identifications can become entwined,” or as James March and Johan Olsen (1998) put it, “political actors . . . calculate consequences and follow rules, and the relationship between the two is often subtle.”67 The decision-making environment has changed and we need to understand the constitution of this field in terms of both its spatial relocation and its relation to new forms of bounded space in the EU that are closely related to boundary removal, build-up, and shift. Conceptual Borders in Europe’s Bounded Space Debates about immigrant integration have had an overwhelming focus on national models. The swirling crossscurrents of debate across Europe about the integration of migrants provide both a frame for EU debate and for ideas that have been very influential in shaping that debate.68 Since 2000, there has been agreement on EU directives covering antidiscrimination, family reunion, and the rights of long-term residents in the context of what the European Commission now calls “A Common Agenda for Integration” and a 2007–2013 budget framework that allocates 825 million euros to an “Integration Fund” (CEC 2005). Moreover, there has been the introduction of what in EU parlance are known as new modes of governance with an emphasis on lesson learning and the sharing of best practice through, for example, the creation of National Contact Points on Integration (usually

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from interior ministries) who meet regularly and the publication of a Handbook on Integration for Policy-Makers and Practitioners. The development of an EU response to immigrant integration provides an example of a contest between epistemes mobilized by different sets of actors as they attempt to impose meaning on EU debates about the rights of foreigners.69 Groenendijk70 offers three legal conceptualizations of the foreigner or third-country national (TCN) at EU level: equal treatment, nationality, and integration capacity. The first of these “frames” derives most clearly from EC laws on nondiscrimination on grounds of nationality and gender and from the 1976 equal treatment directive. This was particularly evident in the antidiscrimination legislation introduced in 2000.71 There has, however, been a member state–instigated move toward the third “frame” with an emphasis on perceived integration capacity. This was evident in a note from the Austrian, Dutch, and German delegations to the EU’s Council Working Group considering commission proposals for a directive covering the status of long-term residents. The plan was that long-term residents would be given rights equivalent to those of EU citizens after five years legal residence. The Austrian, Dutch, and German paper emphasized the importance from their point of view of integration conditions so that “full participation of TCNs can be encouraged by the implementation of integration policies.”72 Articles 5(2) and 15(3) of the directive as it was finally agreed allowed member states to require that TCNs satisfy integration conditions in accordance with national law. Article 15(3) provides that third-country nationals moving to a second member state may be required to attend language courses or comply with other integration measures. Similar concerns were evident during the negotiation of the family reunion directive. Again, the EU was encroaching on issues that have been central to the politics of migration, particularly to the rights-based politics identified by Hollifield.73 The directive on the right to family reunification was agreed after a negotiating period of three years and after three different commission proposals. During the negotiation process there was a movement away from the commission’s more liberal initial proposals to a stronger emphasis on integration by migrants and their families. Article 4.1 specifies that member states are to authorize entry and residence for dependent, unmarried children below the age of consent in the member state they move to. There is a derogation that allows member states to require that children aged over twelve who arrive independently of the rest of their family may be required to satisfy the integration conditions set down in national law in the country they move to. Article 4.6 specifies a derogation that member states may require that applications for family reunification for minor children be submitted before the age of fifteen. Article 8 states that member states may

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require the sponsor to have been legally resident for two years prior to family members joining him or her. There is then a derogation that allows a member state to take into account its “reception capacity” and extend the waiting period to three years. The parliament sought annulment of the directive because it was seen to infringe international standards on the rights of the family, but the European Court of Justice refused parliament’s request on the grounds that, while member states must have regard to a child’s interests, the framework of fundamental rights does not create an individual right for family members to enter the territory of a member state. Member states are thus entitled to a “certain margin of appreciation” when examining applications for family reunification. Similarly, the court held that the possibility for member states would still be obliged to examine requests made by children of more than fifteen years old in light of the interests of the child and with a view to promoting family life. The requirement for “integration” conditions was viewed as a legitimate factor to be taken into account, but not as the base for a quota system or a three-year waiting period imposed without regard to the particular circumstances of specific cases.74 These developments are highly significant in the sense that EU competencies for issues that relate very squarely to the integration of migrants have now been established. At the same time, it is necessary to explore the content of these measures. We can see tension between boundary removal and the legal and social political resources associated with it and pressure for boundary build-up. For example, the antidiscrimination laws introduced by the EU follow a single market logic, derive from supranational laws on equal treatment and nondiscrimination, and were very strongly driven by supranational alliances between the commission, European Parliament, and key promigrant NGOs, such as the Starting Line Group.75 In contrast, the directives on the status of long-term residents and family reunion have reflected growing member state concern about integration capacity and prompted the creation of new barriers based on perceptions of this capacity. The External Dimension of EU Action Having explored elements of the internal composition of the migration policy field and debates related to immigrant integration, we now move on to explore the external dimension of EU action on migration and asylum. This has involved attempts to “move” the borders of Europe so that the regulation of migration to the EU can occur at some distance from the intended countries of destination with more responsibility on non-EU member states to comply with EU requirements. Compliance has been easier to secure when the carrot of eventual membership is being dangled and much more difficult

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to secure for countries that have no prospect of membership.76 EU action has centred on the pursuit of new forms of territorial management and population control linked to the need to maintain organizational borders of work and welfare and conceptual borders of belonging and entitlement. This has not prompted total closure in some “fortress Europe”–type scenario. Rather, to use Aristide Zolberg’s77 analogy, emphasis has been on building a wall around Europe with a key role played by the EU while allowing member states to open small doors in that wall for “wanted” forms of migration, particularly by the highly skilled. As far back as 1994, the commission’s communication on immigration had registered the need for cooperation with non-EU states and hence recognized the growing “foreign policy” dimension.78 This external dimension raised what are known in EU jargon as cross-pillar issues as they bridge “external” and “internal” security and render visible both the domestic and international politics of migration (Boswell 2003). The external dimension is evident in both the “export” to accession states and to the definition of Europe’s neighborhood, comprising sixteen states from Belarus in the northeast to Morocco in the southwest.79 The “neighborhood” is an attempt to develop what the EU calls migration “partnerships” that create bilateral and multilateral forums in an attempt to influence migration flows via various forms of dialogue and cooperation. Links between domestic and foreign policy—or cross-pillar dimensions— were evident in the work of the High Level Working Group on Migration and Asylum (HLWG), which was a Dutch government initiative established in December 1998 to provide action plans for countries of origin and transit of migrants and asylum seekers. The HLWG brings together interior, foreign, and development ministries. It issued reports on Afghanistan and the neighboring region, Morocco, Somalia, Sri Lanka, Iraq, and Albania. The reports on Afghanistan, Morocco, Somalia, Sri Lanka, and Iraq were submitted to the October 1999 Tampere European Council. The report on Albania was approved in June 2000.80 The reports all called for a “common approach” that was comprehensive, long term, and responsive to changes in the situation. Implementation was seen to require that council, commission, and member states work closely together, that there be agreement on financial and human resources, that there be close consultation with relevant international organizations, and that the plans be based on “genuine partnership” with the definition of “reciprocal undertakings.”81 Each report covered foreign policy, development and economic assistance, migration, and asylum. It was agreed that “important components of the approach are protection of human rights, support for democratisation and rule of law, social and economic development, alleviation of poverty, support

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for conflict prevention and reconciliation, co-operation with UNHCR and human rights organisations, observance of refugees’ and asylum-seekers’ rights to protection, integration of migrants and the fight against illegal immigration inter alia through Community readmission agreements.”82 In 2005 the EU developed a strategy for the external dimension of Justice and Home Affairs in the context of terror attacks, organized, crime and global migration flows.83 Such attacks and threats provide institutional opportunities and impel cooperation and integration, but “security policy is never compelled by external events.”84 A security “frame” is well established at EU-level and has been a key driver of cooperation well before terror attacks of the 2000s. The EU strategy uses enlargement to align objectives. At the core of the debate about the external dimension of EU migration and asylum policy and any meaningful notion of partnership with third countries is the tension between the EU’s “fight against illegal immigration” and all the attendant concerns about border security and the attempt to integrate migration issues within a development agenda. A commission communication on policy priorities in the fight against illegal immigration specified partnership with third countries as an essential element in the EU’s southern and eastern neighbourhoods with intensified engagement in the Balkans.85 The commission has also produced annual reports on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external border controls, and the return of illegal residents. The 2006 report analyzed relations with third countries and identified ENP action plans with ten countries with a commitment on both sides to cooperate on migration, as well as a technical dialogue with Libya on illegal immigration. Monitoring mechanisms have been established to evaluate levels of cooperation from Albania, China, Libya, Morocco, Russia, Serbia and Montenegro, Tunisia, and Ukraine. The EU’s “leverage” clearly differs quite markedly among this array of states.86 The external dimension exemplifies the tension between boundary buildup and boundary shift and illustrates how a new politics of migration has developed in Europe that centers on the EU’s developing role. As has been argued, this does not mean that the EU has supplanted member states, but rather that it has created new relationships between borders, territory, and territoriality as European states use the EU to regulate and control migration as a means of maintaining organizational and conceptual borders that retain a strong national focus.

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Conclusion This chapter has used the notion of bounded space to explore the relationship between EU migration policy and notions of territory and territoriality in the EU. It paid particular attention to the location and meaning of borders and distinguished between territorial, organizational, and conceptual borders. It was argued that the relationships between these borders have been a key driver in EU action and also indicative of a rescaling of the European politics of migration. This was exemplified by analysing the ways in which the migration policy field has been constituted at EU level, the emergent EU debate about immigrant integration (and the meaning of this term), and the increasingly important external dimension of EU action. It was argued that territory and territoriality retain their resonance, that “territorial containers” known as nation-states are being challenged but remain central to the border processes that give meaning to international migration in Europe. As such, European migration policy remains profoundly territorial and strongly related to organizational and conceptual borders of work, welfare, belonging, and entitlement that in terms of organizational form and political resonance remain largely national. References 1. Ansell, C. 2004. Restructuring authority and territoriality. In Restructuring Territoriality: Europe and the United States Compared, ed. C. Ansell and G. DiPalma. Cambridge: Cambridge University Press. 2. Badie, B. 1995. La Fin des Territoires: Essai sue le Désordre International et sur Ultilité Social de Respect. Paris: Fayard. 3. Sassen, S. 1996. Losing Control: Sovereignty in an Age of Globalization. New York: Columbia University Press. 4. Allen, J. and C. Hamnett, (Eds). 1995. A Shirking World: Global Unevenness and Inequality. Oxford: oxford University Press. 5. Anderson, J., C. Brook, and A. Cochrane, eds. 1995. A Global World: Reordering Political Space. Oxford: Oxford University Press. 6. Ohmae, K. 1995. The End of the Nation State: The Rise of Regional Economies. New York: Free Press Paperbacks. 7. Oommen, T. 1995. Contested boundaries and emerging pluralism. International Sociology 10 (2): 251–68. 8. Newman, D., and A. Paasi. 1998. Fences and Neighbours in the Post-modern World: Boundary Narratives in Political Geography. Progress in Human Geography 22 (2): 186–207. 9. Bade, K. 2003. Migration in European History. Oxford: Blackwell. 10. Weick, K. 1995. Sensemaking in Organizations. London: Sage. 11. Zolberg, A. 1989. The next waves: migration theory for a changing world. International Migration Review 28 (3): 403–30.

220 Andrew Geddes 12. Krasner, S. 1999. Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press. 13. Sack, R. 1983. Human Territoriality. Annals of the Association of American Geographers 73:55–74. 14. Rosenau, L. 1997. Along the Domestic-Foreign Frontier. Exploring Governance in a Turbulent World. Cambridge: Cambridge University Press. 15. Heisler, B. S. 1992. The Future of Immigrant Incorporation: Which Models? Which Concepts? International Migration Review 26:623–45. 16. Walker, N. 2004. Europe’s Area of Freedom, Security and Justice. Oxford: Oxford University Press. 17. Ansell, C. 2004. Restructuring authority and territoriality. In Restructuring Territoriality: Europe and the United States Compared, ed. C. Ansell and G. DiPalma. Cambridge: Cambridge University Press. 18. Bartolini, S. 1998. Exit Options, Boundary Building, Political Restructuring. EUI SPS Working Paper, no.1. 19. Walters, W. 2002. Making Schengenland: Denaturalizing the border. Environment and Planning D: Society and Space 20:561–80; House of Lords European Union Committee. 2007. Schengen Information System II, London. 20. Wæver, O., B. Buzan, M. Kelstrup, and P. Lemaitre, eds. 1993. Migration and the New Security Agenda in Europe. London: Pinter; Huysmans, J. 2006. The Politics of Insecurity: Fear, Migration and Asylum in the EU. London: Routledge. 21. Purcell, M., and J. Nevins. 2005. Pushing the Boundary: State Restructuring, State Theory, and the Case of U.S.-Mexico Border Enforcement in the 1990s. Political Geography 24:213. 22. Andreas, P. 2000. Border Games: Policing the U.S.-Mexico Divide. Ithaca, NY: Cornell University Press. 23. Cornelius, W. 2001. Death at the border: efficacy and unintended consequences of U.S. immigration control policy. Population and Development Review 27 (4): 661–85. 24. Sandholtz, W., and A. Stone-Sweet. 1997. European Integration and Supranational Governance. Oxford: Oxford University Press. 25. Kirisci, K. 2002. Immigration and asylum issues in EU-Turkish relations: Assessing the EU’s Impact on Turkish policy and practice. In Migration and the Externalities of European Integration, ed. S. Lavenex and E. Ucarer, 125–42. Lanham, MD: Lexington Books. 26. Guild, E. 2001. Moving the Borders of Europe. Nijmegen, Netherlands: Inaugural lecture, Catholic University of Nijmegen, May 2001; Lavenex, S., and E. Uçarer, eds. 2002. Migration and the Externalities of European Integration. Lanham, MD: Lexington; Lavenex, S., and E. Uçarer. 2004. The external dimension of Europeanisation: The case of immigration policies. Co-operation and Conflict 39 (4): 417–43; Council of the European Union. 2005. A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, 14366/3/05, REV 3, LIMITE, JAI 417, RELEX 628. Brussels: Council of the EU; DeBardeleben, J. 2005. Soft or Hard Borders: Managing the Divide in an Enlarged Europe. Aldershot, UK: Ashgate; Pellerin, H. 2005. Migration and border controls in the

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27. 28.

29. 30. 31. 32. 33. 34. 35. 36. 37.

38.

39. 40. 41. 42.

43.

EU: Economic and security factors. In Hard or Soft Borders: Managing the Divide in an Enlarged EU, ed. J. DeBardeleben. Aldershot, UK: Ashgate; Geddes, A. 2006. Europe’s border relationships and international migration relations. Journal of Common Market Studies 43 (4): 787–806; Lavenex, S. 2006. Shifting up and out: The foreign policy of European immigration control. In Immigration Policy in Europe: The Politics of Control, ed. V. Guiraudon and G. Lahav. London: Routledge. Zolberg, A. 2006. A Nation by Design: Immigration Policy in the Fashioning of America. Cambridge, MA: Harvard University Press. Maley, W. 2003. Asylum-seekers in Australia’s international relations. Australian Journal of International Affairs 57 (1): 187–202; Rajaram, P. K. 2003. “Making place”: The “Pacific Solution” and Australian Emplacement in the Pacific and on refugee bodies. Singapore Journal of Tropical Geography 24 (3): 290–306. Zielonka, J. 2001. How new enlarged borders will reshape the EU. Journal of Common Market Studies 39 (3): 507–36. Johnston, R. 2001. Out of the “Moribund Backwater”: Territory and Territoriality in Political Geography. Political Geography 20 (6): 677–93. Taylor, P. 1982.The state as container: territoriality in the modern world system. Progress in Human Geography 18 (1): 156–57. Ibid., 157. Glassner, M. 1993. Political Geography. London: Wiley. Gottmann, J. 1971. The Significance of Territory. Charlottesville: University of Virginia Press, 9–10. Ruggie J. 1993. Territoriality and Beyond: Problematizing Modernity in International Relations. International Organization 47:151. Ibid., 151. Ansell, C. 2004. Restructuring authority and territoriality. In Restructuring Territoriality: Europe and the United States Compared, ed. C. Ansell and G. DiPalma. Cambridge: Cambridge University Press. Badie, B. 1995. La Fin des Territoires: Essai sue le Désordre International et sur Ultilité Social de Respect. Paris: Fayard; Sassen, S. 1996. Losing Control: Sovereignty in an Age of Globalization. New York: Columbia University Press. Anderson, J. 2001. Theorising State Borders: “Politics/economics” and Democracy in Capitalism. CIBR Working Paper Series, WP01-1. Sack, R. 1986. Human Territoriality: Its Theory and History. Cambridge: Cambridge University Press, 2. Bade, K. 2003. Migration in European History. Oxford: Blackwell. Grabbe, H. 2000. The sharp edges of Europe: Extending Schengen eastwards. International Affairs 76 (3): 519–36; Zielonka, J. 2001. How new enlarged borders will reshape the EU. Journal of Common Market Studies 39 (3): 507–36; DeBardeleben, J. 2005. Soft or Hard Borders: Managing the Divide in an Enlarged Europe. Aldershot, UK: Ashgate. Bartolini, S. 2004. Old and new peripheries in the process of European territorial integration. In Restructuring Territoriality: Europe and the United States Compared, ed. C. Ansell and G. DiPalma. Cambridge: Cambridge University Press.

222 Andrew Geddes 44. Geddes, A. 2006. Europe’s border relationships and international migration relations. Journal of Common Market Studies 43 (4): 787–806. 45. Sack, R. 1986. Human Territoriality: Its Theory and History. Cambridge: Cambridge University Press, 32. 46. Newman, D., and A. Paasi. 1998. Fences and Neighbours in the Post-modern World: Boundary Narratives in Political Geography. Progress in Human Geography 22 (2): 187. 47. Dörr, S., and T. Faist. 1997. Institutional conditions for the integration of immigrants in welfare states: A comparison of the literature on Germany, France, Great Britain, and the Netherlands. European Journal of Political Research 31 (4): 401–26; Bommes, M., and A. Geddes. 2000. Immigration and Welfare: Challenging the Borders of the Welfare State. London: Routledge; Ferrera, M. 2005. The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection. Oxford: Oxford University Press. 48. Kitschelt, H. 1995. The radical right in Western Europe: A comparative analysis. Ann Arbor: University of Michigan Press, 270. 49. Freeman, G. 1986. Migration and the Political Economy of the Welfare State. The Annals of the American Academy of Political and Social Sciences, 485:61. 50. Martin, P. L. 2002. Germany: Managing Migration in the 21st Century. Institute of European Studies. Comparative Immigration and Integration Program. Working Paper CIIP-1: 2. 51. Flora, P. 1986. Growth To Limits. The European Welfare States Since World War II. Berlin: De Gruyter; Banting, K. 1995. The Welfare State as Statecraft: Territorial Politics and Canadian Social Policy. In European Social Policy: Between Fragmentation and Integration, ed. S. Liebfried and P. Pierson. Washington, D.C.: Brookings Institution, 269–300; Rhodes, M., and B. van Apeldoorn. 1998. Capital Unbound? The Transformation of European Corporate Governance. Journal of European Public Policy 5 (3): 407–28. 52. Ferrera, M. 2005. The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection. Oxford: Oxford University Press, 2. 53. Ibid., 20. 54. Freeman, G. 1986. Migration and the Political Economy of the Welfare State. The Annals of the American Academy of Political and Social Sciences 485:51–63; Guiraudon, V. 2001. European integration and migration policy: Vertical policymaking as venue shopping. Journal of Common Market Studies 27 (2): 334–53. 55. Favell, A. 1998. The Europeanisation of immigration politics. European Integration On-Line Papers 2 (10). http://eiop.or.at/eiop/texte/1998-010a.htm. 56. Monar, J. 2001. The dynamics of Justice and Home Affairs: Laboratories, driving factors and costs. Journal of Common Market Studies 39 (4): 747–64. 57. European Council. 1999. Tampere European Council. Presidency Conclusions. http://europa.eu.int/council/off/conclu/oct99/oct99_en.htm. 58. Council Regulation (EC) No 2007/2004 of October 26 2004, establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. Official Journal L 349, November 25, 2004, pp. 1–11.

Borders, Territory, and Migration in the European Union 223 59. Morrison, J., and B. Crosland. 2000. The trafficking and smuggling of refugees: The end game in European asylum policy? Geneva: UNHCR; Noll, G. 2000. Negotiating Asylum: The EU Acquis, Extra-Territorial Protection and the Common Market of Deflection. Leiden, Netherlands: Martinus Nijhoff; Noll, G. 2003. Visions of the exceptional: Legal and theoretical issues raised by transit processing centres and protection zones. European Journal of Migration and Law 5 (3): 303–41; CEC. 2004a. Communication. Policy Plan on Legal Migration, COM(2005) 669 final. Brussels: CEC; Samers, M. 2004. An emerging geo-politics of illegal immigration in the European Union. European Journal of Migration and Law 6 (1): 23–41; CEC. 2006. Communication: Policy Priorities in the Fight Against Illegal Immigration, COM(2006) 402 final. Brussels: CEC. 60. Wallace, H. 2004. An institutional anatomy and five policy models. In Policy Making in the European Union, ed. H. Wallace, W. Wallace, and M. Pollack. 5th ed. Oxford: Oxford University Press. 61. den Boer, M. 1998. Taming the Third Pillar. Improving the Management of Justice and Home Affairs Co-operation in the EU. Maastricht, Netherlands: European Institute for Public Administration. 62. Dawson, R., and K. Prewitt. 1969. Political Socialization. Boston: Little Brown; Checkel, J. 2005. International institutions and socialization in Europe: Introduction and framework. International Organization 59 (Fall 2005): 801–26. 63. Beyers, J. 2005. Multiple embeddedness and socialization in Europe. International Organization 59 (Fall 2005): 899–936. 64. Checkel, J. 2005. International institutions and socialization in Europe: Introduction and framework. International Organization 59 (Fall 2005): 801–26. 65. Beyers, J. 2005. Multiple embeddedness and socialization in Europe. International Organization 59 (Fall 2005): 899–936; Hooghe, L. 2005. Several roads lead to international norms, but few via international socialization: A case study of the European Commission. International Organization 59 (Fall 205): 861–998; Lewis, J. 2005. The Janus face of Brussels: Socialization and everyday decision-making in the European Union. International Organization 59 (Fall 2005): 937–71. 66. Zürn, M., and J. Checkel. 2005. Getting socialized to build bridges: Constructivism and rationalism, Europe and the nation state. International Organization 59 (Fall 2005): 1045–79. 67. March, J. and J. Olsen. 1998. The Institutional Dynamics of International Political Orders. International Organization 52, (4, 943–969): 952. 68. Groenendijk, K. 2004. Legal concepts of integration in EU migration law. European Journal of Migration and Law 6 (2): 111–26. 69. Adler, E., and P. Haas. 1992. Conclusion: Epistemic communities, world order and the creation of a reflective research programme. International Organization 46 (1): 367–90. 70. Groenendijk, K. 2004. Legal concepts of integration in EU migration law. European Journal of Migration and Law 6 (2): 111–26.

224 Andrew Geddes 71. Tyson, A. 2001. The negotiation of the European Community directive on antidiscrimination. European Journal of Migration and Law 3 (2): 199–229; Geddes, A., and V. Guiraudon. 2004. Britain and France and EU anti-discrimination policy: The emergence of an EU policy paradigm. West European Politics 27 (2): 334–53. 72. Council of the EU, Note from the German, Dutch, and Austrian delegations to the Strategic Committee on Immigration, Frontiers and Asylum, September 23, 2002, 12217/02, LIMITE, MIGR82, p. 1. 73. Hollifield, J. 1992. Immigrants, States and Markets: The Political Economy of Migration in Europe. Cambridge, MA: Harvard University Press. 74. Case C-540/03, June 27, 2006. 75. See Geddes, A., and V. Guiraudon. 2004. Britain and France and EU anti-discrimination policy: The emergence of an EU policy paradigm. West European Politics 27 (2): 334–53. 76. Abell, N. A. 1999. The compatibility of readmission agreements with the 1951 refugee convention relating to the status of refugees. International Journal of Refugee Law 11 (1): 60–83; Schieffer, M. 2003. Community readmission agreements with third countries—objectives, substance and current state of negotiations. European Journal of Migration and Law 3 (3): 343–57. 77. Zolberg, A. 1989. The next waves: migration theory for a changing world. International Migration Review 28 (3): 403–30. 78. CEC. 1994. Communication on Immigration and Asylum Policies COM(94) 23 final, Brussels: CEC. 79. CEC. 2003. Commission Communication. Wider Europe–Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM(2003) 104 final, Brussels: CEC; CEC. 2004b. European Neighbourhood Policy: Strategy Paper, COM(2004) 373 final, Brussels: CEC. 80. Council of the EU, High Level Working Group on Migration and Asylum: Draft Action Plan for Albania and the Neighbouring Region, 7886/1/00, REV 1, LIMITE JAI 40 AG 41, June 6 2000. 81. Council of the EU. 2000. High Level Working Group on Migration and Asylum: Adoption of the Report to the European Council in Nice. 13993/00 LIMITE JAI 152, AG 76. 82. Ibid., 5. 83. Council of the European Union. 2005. A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, 14366/3/05, REV 3, LIMITE, JAI 417, RELEX 628. Brussels: Council of the EU. 84. Walker, N. 2004. Europe’s Area of Freedom, Security and Justice. Oxford: Oxford University Press. 85. CEC 2006a. 86. CEC 2006b.

CHAPTER 10

The Denationalization of Immigration Politics Is It Happening and Who Benefits? Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

M

any scholars have recently argued that nation-state–centered approaches in comparative sociology and political science are obsolete. In this view, we have entered, or are about to enter, a new “postnational” or “transnational” era characterized by complex and qualitatively new patterns of multilevel governance, in which the nation-state still plays a role, though a drastically reduced one.1 This decline of the nationstate’s sovereignty is said to be accompanied by a growing importance of supranational and transnational actors, institutions, legal norms, and discourses, on the one hand, and increased local autonomy from national constraints, on the other. Given the inherently transnational nature of migration, it is not surprising that this critique of national approaches has been particularly prominent in this field of study. A number of authors have seen a new form of “postnational” citizenship developing, superimposed on national citizenship and rendering it increasingly irrelevant.2 The primary empirical example on which this conclusion is based are the former guest workers in several Western European countries. Although originally invited on a temporary basis, many of them stayed after the end of the recruitment programs in the wake of the 1973 oil crisis. By way of family reunification and formation, immigration from the sending countries has continued, albeit on a lower level. The receiving countries have extended many civil and social rights, and in some cases even limited political rights to

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these immigrants, even though many of them have not naturalized and are thus not formally citizens of the countries in which they reside. Postnationalists argue that such extensions of rights to immigrants have been imposed on nation-states by their commitments to international law and conventions, pressure from homeland governments, and the growing normative force of international human rights discourses. As a result, “the (territorial) state, if present trends continue, is in the process of becoming a territorial administrative unit of a supranational legal and political order based on human rights.”3 More specifically for the European context, the process of European integration is often seen as a challenge to the nation-state’s sovereignty, and in the migration and ethnic relations field in particular.4 The emergence of European-level human rights codes, the enhanced role of the European Court of Justice (ECJ), and the embryonic European citizenship that has been introduced with the Maastricht Treaty are seen as guaranteeing basic migrant rights and thereby limiting the scope of autonomous action of the member states. Though resonating with the present popularity of “globalization” and “Europeanization” in the scientific community and in public discourse, these perspectives have not gone unchallenged. Criticism has focused both on the extent of the alleged decline in the nation-state’s sovereignty, and on the degree to which such a shift to a transnational or supranational order has the beneficial effects for migrants and ethnic minorities that postnationalists emphasize. To begin with the latter point, it is striking that parallel to the literature emphasizing the empowering effects of postnational and European citizenship, there is an equally resonant literature that comes to the opposite conclusion and sees European integration leading to a “Fortress Europe.”5 Pointing to agreements such as those of Schengen (an agreement among EU member states to abolish border control among the participating countries) and Dublin (an agreement among EU member states to regulate the application process of refugees seeking asylum in Europe), the European project is seen here as curtailing migrant and minority rights by strengthening external border controls, promoting internal security cooperation, and devaluing migrant rights to the level of the lowest common denominator of the participating member states. Similar developments can be observed in other contexts of intergovernmental cooperation on migration issues, such as in the case of the North American Free Trade Agreement (NAFTA). The high hopes for improving migrant rights that some people place in European citizenship presently seem to lack any foundation. According to the provisions of the Maastricht Treaty, European citizenship is fully derivative of national citizenship in one of the member states. Similarly, the abolition of most barriers in the way of freedom of movement, settlement, and seeking employment

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within the European Union (EU) applies only to nationals of member states.6 Thus, European citizenship and the rights it entails have so far not improved the rights of migrants from third countries. On the contrary, while in many national contexts the rights status of permanent residents approximated that of citizens, third-country nationals now find themselves again in a secondclass position on the European level.7 It is debatable whether the improvements in migrant rights that have taken place in the last few decades are due to the rise of a new, postnational form of citizenship based in international human rights codes, emphasizing personhood instead of citizenship as the basis of rights. First, this perspective cannot explain why such extensions of rights to migrants can only be observed in Western democracies, whereas other countries, such as the Persian Gulf states, extend very few rights to their labor migrants.8 Moreover, more recent labor migration schemes in Western European countries (e.g., Germany’s import of East European laborers) and the tightening of immigration laws in countries such as Denmark seem to indicate that if they so wish, Western nation-states, too, are well able to restrict the rights of labor migrants to a minimum: “The rights of these, mostly temporary, workers tend to be inferior to those of the former guest workers in Germany, for example, the rotational principle is strictly enforced. Thus, not only have immigration policies become more restrictive but the social rights status of labor migrants has also become more precarious.”9 What these examples suggest is that the factors that have led to the extension of rights to immigrants have been domestic rather than postnational in any meaningful sense.10 First, a commitment to human rights has been a founding principle of Western liberal nation-states, not something imposed on them in the postwar period by supranational institutions, conventions, or discourses (recall that the French revolutionary constitution begins by stating not just the rights of the citizen, but also the rights of man and the citizen—in that order). While the commitment to such values and rights may partly explain why Western states have not treated their labor migrants like, say, Saudi Arabia or Nigeria, there were also less noble, domestic interests behind the giving up of the rotation model for Western European guest workers, for example, the pressure on governments by employers interested in a stable, cheap, and committed work force.11 Against the evidence brought forward for the continuing relevance of the nation-state as a frame of reference, postnationalists point to cases where collective actors frame their claims in terms of universal human rights and successfully appeal to supranational courts to prevent or overturn national incursions on their rights.12 Yet such evidence remains unsystematic and does not go beyond the discussion of a few, supposedly representative, examples.

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The extent to which the nation-state is still the most relevant context for understanding the politics of migration and ethnic relations, or whether it has been superseded by postnational and transnational contexts, is therefore still open to debate. In this chapter, we want to make an empirical contribution to resolving this question by analyzing public debates on immigration and ethnic relations politics in five European countries for the period 1990–1999, and for 1980–2002 in the case of Germany. Our earlier work13 lends support to the more skeptical view on the extent of postnational tendencies. Comparing the claims making of immigrants and ethnic minorities in Germany and the United Kingdom in the period 1990–1994, our analysis revealed stark differences in the types of collective identities, the topics that are addressed, the territorial framing of claims, as well as in the influence of immigrants in the wider public debate. This strong cross-national variation, which corresponds closely to differences between the two countries’ citizenship regimes and integration policies, is hard to reconcile with the postnational perspective. We find that only a very small proportion of immigrant and ethnic minority claims are made by transnational organizations or refer to supranational, European, or transnational dimensions of issues. These results were confirmed in a later study that extended the time perspective to the whole 1990s, and additionally included the Netherlands.14 In this study, we find that the large majority of immigrant and ethnic minority claims are either firmly tied to the national context of the immigration country, or focus exclusively on homeland political conflicts. Truly transnational forms of immigrant claims making, which link the political contexts of the immigration country and the country of origin, are relatively rare. In this chapter, we want to extend the perspective of these earlier studies in several ways in order to develop a broader empirical basis for judging the merits of postnational and transnational perspectives on citizenship and immigrant integration. First, we include in this chapter two further countries, France and Switzerland. Second, we will not just look at the subset of claims made by immigrants and ethnic minorities, but we will also include public debates and mobilization on immigration and ethnic relations in their entirety, regardless of which collective actors make the claims. Depending on the country, immigrants and ethnic minorities are responsible for only between 5 percent (in Switzerland) and 20 percent (in the United Kingdom) of all claims making in this field. The other 80–95 percent are composed of claims by institutional actors such as governments, legislatives, and political parties, as well as by civil society actors such as labor unions, employers, churches, and welfare, human rights, and antiracist organizations. Third, the

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earlier studies focused on the cross-national comparison and did not discuss trends over time. Such trends will be an important focus in this chapter. To this end, we will not only analyze trends in the five countries over the period 1990–1999, but we will additionally present data for Germany, which allow us to go as far back as 1980, and to update for developments as recent as 2002. These German data are drawn from another research project that was, however, based on a comparable methodology. Despite the broadly similar methodological approach, there are also important differences between the two projects regarding the sources and samples that were used, as well as regarding the geographical scope of the claims that were included (see the subsequent data and methods section). These differences allow us to extend the scope of our analysis in a fourth way, by allowing us to verify the robustness of our findings on the basis of two independent datasets. Method and Data The empirical basis of this study is data on political claims making in the public sphere, measured by way of a content analysis of daily newspapers. Political claims analysis builds on protest event analyses as developed in the field of social movements and collective action,15 but extends the method to include speech acts and public discourse variables.16 We define an instance of claims making (shorthand: a claim) as a unit of strategic action in the public sphere that consists of the purposive and public articulation of political demands, calls to action, proposals, criticisms, or physical attacks that, actually or potentially, affect the interests or integrity of the claimants or other collective actors. Political decisions and policy implementation are included and seen as special forms of claims making, namely, ones that have direct and binding effects on the objects of the claim. We also include violence between contending groups, even if no explicit verbal claim is made or reported, for example, mutual attacks between radical right, immigrant, and antiracist groups, or between different ethnic or religious groups. Our core data for the so-called MERCI (Mobilization of Ethnic Relations, Citizenship, and Immigration) project were retrieved from one national newspaper for each country in the period 1990–1999 (1992–1999 for the Netherlands, 1990–1998 for France and Switzerland, 1990–1999 for Germany and the United Kingdom). The selected newspapers are the Frankfurter Rundschau for Germany, Le Monde for France, the Guardian for Britain, NRC Handelsblad for the Netherlands, and the Neue Zürcher Zeitung for Switzerland.17 These are all independent newspapers of public record with a nationwide scope of coverage and readership. All of them are broadsheet

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newspapers with a reputation for consistent and detailed coverage of the field of migration and ethnic relations. From these newspapers, the main news sections of every Monday, Wednesday, and Friday issue were sampled and coded for all political claims relating to immigration, migrant integration, and racism and xenophobia. We are fully aware that newspaper coverage is not an undistorted and complete mirror of reality. From the multitude of claims that are made on a daily basis by a variety of groups in liberal democracies, only a small part is actually reported in the media. However, it is precisely this publicly visible part of claims making that we are interested in; this is the part that can have an impact on the perceptions of the public and on policy making. Discursive forms of claims making such as press releases or public statements that do not make it into the media may be considered not to have occurred at all, for their brief existence and subsequent failure are known only to the would-be claimant himself. To a large extent this also holds for physical forms of claims making such as demonstrations or violence. Even a violent attack by skinheads on a group of immigrants becomes meaningful as an act of claims making only when it is reported to a wider audience. Without such coverage, it remains a largely private event known only to the attackers and their victims, and perhaps a few occasional bystanders, or the police officers who investigate the case. The fact that our data is partly the result of media selection processes is not a problem for our approach, but, instead, captures precisely what we want to measure. A data set including all attempts at claims making, including the large numbers of failures that never made it, would certainly be interesting for investigating selection processes. However, as a measurement of politically relevant claims-making, such data would be far inferior to data based on media-reported claims. It would be invalid because our aim is not to provide a full picture of all the attempts at claims making that occur, but rather to explain the pattern of those claims that are actually able to penetrate the mass media and thereby may become part of the processes of policy making and public debate and deliberation. Moreover, on theoretical grounds, we believe that the difference between failed and (in terms of media coverage) successful attempts at claims making should not be overstated. As a tendency, attempted claims making will mirror successful claims making because collective actors are likely either to disband or to change strategy if their attempts structurally fail to reach a wider audience. They learn to employ strategies that fit the selection criteria of what is considered relevant and legitimate in the public discourse of a particular setting, either the hard

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way through differential survival, or by way of strategic adaptation and anticipation.18 Even if we have compelling reasons to draw on mass media sources, it remains an important question whether our primary sources are representative for the wider media landscape. We have tried to minimize the problem of description bias19 by coding only the factual coverage of statements and events that appear in the newspapers, and excluding any comments and evaluations by editors or reporters. Even when disregarding the explicit opinions of journalists and editors, it could be that the picture we obtain of claims making in a particular country depends strongly on the newspaper chosen. To check for such biases, we have in two countries, Germany and the United Kingdom—where we first started the data gathering for this study—drawn additional samples from other newspaper sources. The comparisons of these alternative sources to our main sources reveal important differences in the rate of coverage of relevant claims, especially between national quality papers, on the one hand, and the much more limited and concise coverage in tabloid and regional papers, on the other hand. However, such differences in coverage rates coincide with strikingly similar distributions of acts on important variables. These intermedia comparisons suggest that by using national quality newspapers as our source, we obtain a valid picture of the patterns of claims making in our field of interest. We will be able to further check the validity of this claim about the robustness of media-based data by comparing the MERCI results for Germany to data drawn from an entirely different project (“Europub”), which focuses on the Europeanization of public debates and claims making in different issue fields, including immigration.20 Europub only includes immigration politics in the narrow sense of issues pertaining to the entry, exit, and residence rights of immigrants. Issues of integration and citizenship, racism, discrimination, and xenophobia, which are included in the MERCI project, do not form part of the Europub study. Moreover, immigration politics itself is defined somewhat more narrowly in the Europub project and excludes claims related to the treatment of immigrants in the country of residence, for example, on the housing conditions, work permits, and welfare rights of asylum seekers who are waiting for a decision on their asylum requests. Both studies use political claims analysis as their main method but they differ in terms of their sources and sampling strategies. Whereas the MERCI data for Germany are based on the Frankfurter Rundschau, the Europub data are based on two different newspapers, the Süddeutsche Zeitung and the Frankfurter Allgmeine Zeitung. The sample per newspaper in the Europub project is much thinner than in MERCI: one issue per two weeks versus three

232 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

issues per week. The Europub data are however more encompassing in terms of the inclusion criteria for claims. In the MERCI project, claims were only coded if they were made in the country of coding, or were addressed at an actor or institution in the country of coding. For the United Kingdom for the whole of the 1990s, and for Germany for 1997–1999 we broadened this criterion by also including claims made abroad that were indirectly relevant for the country of coding (e.g., claims in the context of supranational or European-level deliberations that did not explicitly mention Germany). Even such a broader inclusion criterion may still be faulted for methodological nationalism, as we ignored any claims that had no connection to the politics of the country of coding. For the German case, we thus disregarded articles on the conflict around the sans papiers in France, on the conflict between France and the United Kingdom on the control of the influx of asylum seekers, or on criticism by the United Nations High Commissioner for Refugees (UNHCR) of Dutch policies. In the Europub project, we wanted to avoid any bias related to the geographical scope of claims. For this project, our single inclusion criterion was that claims had to relate to immigration issues, regardless of their relevance to Germany or Europe. Thus, these data also include claims on refugee policies in Australia or on U.S.-Mexican border control. This allows us to investigate the degree to which the German media consider immigration events in other parts of the world relevant for their readership. If the thesis is correct that immigration is increasingly contested in transnational and supranational arenas, then we should expect that coverage of immigration claims in foreign countries and on the supranational level increases over time. Along the time dimension, the Europub project allows us to broaden our perspective compared to the MERCI data. The German Europub data series includes the years 1980, 1985, 1990, 1995, 2000, and 2002. In the following empirical sections, we will first analyze the MERCI data across five countries for the 1990s. At the end of the chapter, we turn to the German Europub data to investigate longer time trends and to assess the robustness of our findings. The Territorial Scope of Collective Actors in the Public Sphere Critics of nation-state–centered approaches emphasize the transnational nature of ethnic communities, linkages between policies and authorities in the countries of origin and settlement, as well as the growing role of supranational actors, such as the United Nations High Council for Refugees (UNHCR), the European Commission, or the European Court of Human Rights. When looking at the territorial scope of actors operating in the immigration and ethnic relations field, the postnationalist position would

The Denationalization of Immigration Politics 233

therefore predict a significant involvement of actors that transcend the national context. By contrast, if national citizenship and political opportunities remain key to immigration and ethnic relations politics, then one would expect to see a much more limited role for supranational, transnational, or foreign national actors. For those acts of claims making for which an organization was explicitly mentioned, Table 10.1 shows the frequency of various possibilities for organization beyond the nation-state: Europe-wide, such as the European Parliament, the European Refugee Council, or the European Network Against Racism; on the supranational level beyond Europe, such as Amnesty International, United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Islamic Mission, or the International League for Human Rights; foreign-based, such as the U.S. American Nation of Islam, the Israeli government, the Turkish Islamic organization Milli Görüs¸, or government representatives and embassies of migrants homelands such as Bosnia, Surinam, or Turkey; and finally bilateral organizations, such as the German-Polish Friendship Society. In cases where an organization extended across several territorial or polity levels, as is the case for many international NGOs with national branches (e.g., Amnesty International or Pax Christi) we always coded the highest territorial level, for example, in the example cases “other supranational.” Similarly, Milli Görüs¸ Germany is coded as a foreign, Turkish organization, even thought the national branches of this organization tend to operate quite independently. Through this coding procedure, we ensured that any bias that might exist regarding ambivalent cases would be in favor of the postnational hypothesis rather than working against it. If we compare the share of claim makers beyond the national context to those whose territorial reach remains confined to the national (or subnational) Table 10.1 Territorial scope of actors in immigration and ethnic relations politics, by country (MERCI data 1992–1998)

European Other supranational Foreign based / bilateral National or subnational Total N=

Netherlands

Britain

France

0.4 1.3

0.9 1.3

0.6 4.2

Germany Switzerland 0.4 3.1

0.6 4.0

1.6

0.6

0.4

2.1

1.0

96.8 100.0% 1,999

97.2 100.0% 1,117

94.8 100.0% 2,033

94.4 100.0% 5,098

94.5 100.0% 1,255

234 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

context of the country of settlement, the findings in the table are striking and clear-cut. Contrary to the expectations of postnational theory, the territorial scope of the vast majority of organizations that appear as claim makers in the public sphere of all five countries (between 95 percent and 97 percent) does not extend beyond the receiving nation-state. There is very little evidence of supranational or transnational organizations, either state or civil society actors, intervening to a significant extent in public controversies over immigration and ethnic relations, neither from above in the form of supranational organizations, nor horizontally by way of interventions by organizations or authorities from other countries. In the light of the fact that the academic literatures on postnationalism and multilevel governance usually point to the process of European integration as an exemplary case in point, it is perhaps most surprising that claim makers who organize on the European level are virtually absent (less than 1 percent in all countries). Other forms of supranational organization play a somewhat more important role, up to a level of 4 percent of all claim makers in France and Switzerland. The most important organizations of this type were the UNHCR and a number of supranational NGOs, with Amnesty International as the most frequently occurring example. Organizations from countries other than the country of settlement do not occur frequently, either, especially in France and the United Kingdom where they are even more marginal than organizations with a European scope. In Germany, Switzerland, and the Netherlands, foreign organizations appear somewhat more frequently as claim makers (about 2 percent of all claims). These are most often governmental authorities or other organizations from migrants’ countries of origin intervening on behalf of emigrant populations in Western Europe. This tendency is related to a generally stronger homeland orientation of immigrants in these three countries compared to France and Britain.21 While our data thus contain cases that fit the type of claims making that is emphasized in theories of postnational citizenship, these remain quite marginal compared to the overwhelming majority of cases where claim makers are firmly situated within the national context of the country of settlement. On the other hand, are we not guilty of what is sometimes called “methodological nationalism,” in drawing such conclusions about the marginality of non-national actors based on national newspaper sources? This argument would be convincing if there really was an alternative for focusing on national public spheres as the arenas in which immigration and ethnic relations—or most other political issues, for that matter(are publicly debated and contested. In the absence in Europe of supranational media that reach transnational audiences, the only channel through which collective actors can mobilize public support and diffuse their messages to wider audiences are

The Denationalization of Immigration Politics 235

the national (and subnational) media. There are only a few transnational media in Europe that aim at general audiences, such as the television channel Euronews, which has in spite of strong financial support from the European Commission remained very marginal. As for newspapers, there has been a significant attempt to establish a European-wide medium in the form of The European, but tellingly this paper no longer exists because it turned out not to be commercially viable.22 In another sense, we must admit to a certain degree of methodological nationalism, because in our main sample we included claims that were made outside our countries of study only if they were directly addressed at, or referred to, actors or policies in these five countries. As a result, we may have missed some relevant claims on the supranational level. An example would be decisions or directives of European Union institutions that affect member states in a generic manner, or statements by homeland governments on the situation of their emigrants in general without addressing a specific actor in one of our countries. Fortunately, we did include such claims for part of our sample, namely, Britain for the whole period, and Germany from 1997 onward. Including these claims that are indirectly relevant for public controversies in our countries of study indeed increases the relative share of nonnational actors, but not to a very great extent. Even with this expanded definition of the relevant universe of claims, national claim makers make up 91 percent of all claims in Germany, and 96 percent in Britain. European claims profit most from this more inclusive definition, but they still do not rise above 2 percent of all claims in either of the two countries. But of course, the territorial level at which claim makers organize alone cannot seal the verdict on the relevance of the postnational thesis, as its advocates have often pointed out that supranational norms and legal frameworks in many cases are still channeled through national organizations and implemented by national authorities. We will therefore now turn to the substantive content of claims The Spatial Framing of Issues To assess the validity of the postnational relativization of the nation-state more directly, we must look at the substantive scope of claims. At the one extreme, we find claims that remain completely within the realm of national politics and refer only to national actors, institutions, and legal norms. An example were the accusations of the German Social Democrats during the early 1990s that the government legitimized violence against asylum seekers with its demand to abolish the constitutional right to asylum. Within that same asylum debate, there were also cases of claims where reference was made to actors, legal frameworks, or norms outside Germany. For instance, the

236 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

government would point out that a reform of asylum law was necessary to harmonize Germany’s legislation with that in other EU member states, opponents would say that such a reform would run against the Geneva Convention on refugees or violate the UN Children’s Convention, or German authorities would call on other EU member states to do more to secure the EU’s external borders. Claims might also refer to other nationstates, for example, when Dutch churches protested against the conclusion of a treaty between the Netherlands and Vietnam on the repatriation of refugees in return for financial aid, or when antiracist protesters gathered at Heathrow airport to protest a visit of the Italian neofascist leader Gianfranco Fini to the United Kingdom. In Table 10.2, we show the distribution of the substantive scope of claims in the overall immigration and ethnic relations field. The categories European, other supranational, and national or subnational are identical to those used in Table 10.1 for the territorial scope of actors. The category international relations is used for claims referring to other countries, as in the two last mentioned examples. As we did for the scope of actors, we have always coded the widest territorial scope of substantive reference. That is to say, if a claim referred mainly to national institutions, legislation, and norms, and only secondarily referred to the need for a common European solution, the substantive scope of the claim was coded nonetheless as “European” and not as “national.” Thus, again, we built in a bias to the advantage of theories of postnational citizenship. A final preliminary note to make is that the substantive scope of a claim was defined independent of the scope of the actor who made the claim. Thus, many of the claims with a European scope were made by national actors. The reverse also happened regularly. For instance, in many cases the interventions by national branches of transnational NGOs Table 10.2 Spatial framing of claims in immigration and ethnic relations politics, by country (MERCI data 1992–1998)

European Other supranational International relations National or subnational Total N=

Netherlands

Britain

France

1.3 1.3

4.3 2.4

2.9 1.7

Germany Switzerland 1.0 1.2

4.6 3.5

3.4

4.5

0.8

2.9

3.3

94.1 100.0% 2,215

88.8 100.0% 1,307

94.6 100.0% 2,317

94.9 100.0% 5,838

88.6 100.0% 1,324

The Denationalization of Immigration Politics 237

such as Amnesty International, Pax Christi, or Medico International remained entirely within a national frame of reference. Compared to the territorial scope of actors that we presented in Table 10.1, we find in Table 10.2 a larger number of claims that have a substantive scope of reference that extends beyond the national context of the country of settlement.23 The more important form of transnational claims making is clearly that in which national actors refer to transnational or supranational contexts, rather than collective actors organizing transnationally.24 Nonetheless, the extent to which the frame of reference of claims extends beyond the national context remains unimpressive. In the Netherlands, Germany, and France, between 94 percent and 95 percent of all claims make no references beyond the country of settlement. Surprisingly, Switzerland (which is not an EU member and only recently joined the UN) and Britain (the homeland of “Euroskepticism”) are the two countries with the lowest proportions of claims with a national frame of reference (89 percent in both countries). Claims with a European scope, in particular, are relatively frequent in these two countries (4.6 percent in Switzerland and 4.3 percent in Britain). This is related to the fact that the issue of European integration is more controversial than in the other three countries, in Britain due to strong opposition against the political and monetary integration of Europe, and in Switzerland due to controversies over whether or not Switzerland should join the EU. References to the European level (and to a lesser extent to other supranational levels) were as a consequence often negative, either with regard to extensions of supranational prerogatives, or with regard to migrant rights. The Tories, for instance, criticized the Labor Party on several occasions for their call for common European rules in dealing with asylum requests, stating that this would undermine immigration control and threaten peaceful race relations in Britain. We will come back to the valence of claims with different scopes in the next section. Again, we are able to take into account the possibility of a methodological bias in favor of claims with a national scope, using the wider definition of the relevant universe of claims for Britain and Germany that we already have referred to in our discussion of actor scopes. Including claims made abroad that do not directly address actors or policies in our countries of study only leads to a very modest decrease in the predominance of claims with a purely national scope of reference, namely to 87 percent in Britain, and to 92 percent in Germany.

238 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

Multilevel Patterns of Claims Making So far, our analysis has not reached the core of what characterizes politics beyond the nation-state according to the predominant view in the literature.25 These new forms of politics are not envisaged as a zero-sum game in which supranational and transnational forms of political action gain prominence at the cost of national political involvement. Much rather, the growing relevance of supranational and transnational institutions and norms leads to forms of multilevel politics, which may simultaneously involve several political levels. For instance, national actors in conflict with other national actors may invoke arguments drawn from international treaties or norms, or they may address supranational third parties, demanding from them to exert pressure on their adversaries in the national political arena. Viewed in their entirety, such claims are neither exclusively national nor supranational, but rather a hybrid combination of the two. In order to capture such forms of multilevel claims making, we will now look at the structure of claims in their entirety. To this end, we combine and extend the information on actor scopes and substantive frames of reference. Our results until now were based only on the primary actor (Table 10.1) and the primary issue and addressee (Table 10.2) of claims. To capture as much as possible of the potential for linkages between polity levels, we will now also include information on secondary and tertiary actors, addressees, and issues. Because claimants sometimes act in coalitions, we allowed for the coding of up to three different subject actors per claim. Moreover, each act of claims making may refer to several separate detailed issues, which we capture by coding not only the primary, but also, if relevant, the secondary and tertiary issue. Finally, we also coded up to three actors who in relation to these issues were mentioned as addressees or objects of criticism. For each of these nine variables, we coded a scope variable similar to the ones we already discussed in relation to Tables 10.1 and 10.2. Thus, we have the potential to capture very complex forms of multilevel claims making and have a very sensitive instrument that captures even slight references to contexts other than the nation-state. For instance, we might classify a claim as involving the European level based on its tertiary addressee, even if all eight other variables had a national scope. The results of this analysis are shown in Table 10.3. The total in this table does not add up to 100 percent because claims were not attributed scopes in an either/or, but rather in an additive fashion. The percentage with which the total exceeds 100 percent therefore indicates the share of multilevel claims that involved more than one level simultaneously. As a contrast, we also present the percentage of purely national claims, for example, those that did not make any reference to another polity level than the national or subnational

The Denationalization of Immigration Politics 239 Table 10.3 Overall scopes of claims in immigration and ethnic relations politics, and extent of multilevel claims making, by country (MERCI data 1992–1998)

European Other supranational International relations National or subnational Total Purely national claims N=

Netherlands

Britain

France

Germany Switzerland

2.2 2.9

5.2 5.6

3.8 8.0

2.4 6.1

8.9 10.1

5.3

5.9

1.8

7.0

6.1

99.2 109.6%

98.9 115.6%

99.7 113.3%

99.6 115.1%

99.6 124.7%

90.5% 2,231

85.3% 1,307

86.7% 2,323

86.0% 5,859

76.3% 1,324

Note: Figures add up to more than 100% because of claims encompassing multiple political levels. The difference between the sum total percentage per column and 100% indicates the percentage of multilevel claims. The figure in the bottom row for claims with a purely national scope shows the percentage of claims that contained no reference whatsoever to political levels above or beyond the national level of the country in question.

levels.26 In all five countries virtually all claims involved the national polity level in one way or another, be it because claimants were organized at the national level, because the addressees were national institutions, or because issues were framed in a national context. This result remains virtually unchanged (a decline of only 0.3 percent in the category of claims with a national or subnational dimension in both countries) if we take the broader definition of relevant claims for Britain and Germany (which includes claims made abroad that may be supranational or transnational in all dimensions). Moreover, almost all claims that were coded as having no national dimension, in fact, did have one. This is a result of our rule to code the highest scope level if an actor or issue extends across more than one polity level. For example, the claim where Pax Christi Germany called for a common European asylum policy was coded as having a European (the issue) and another supranational dimension (the actor), but the German dimension of the claimant was not captured in this case. This near universality of claims that have a national dimension implies that most of the multilevel claims are of the type involving the national level and one of the other levels. Claims involving more than two levels were relatively rare. An example was the criticism uttered by the Dutch Institute for Multicultural Development Forum that Turkish organizations in Europe were influenced too strongly by the Turkish government, a claim coded as having national Dutch (the claimant), European (the issue),

240 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

and international relations dimensions (the Turkish government as the object of criticism). For a better understanding of the findings in Table 10.3, it is useful to combine them with information on the substantive content of claims, which we display in Tables 10.4 and 10.5. Table 10.4 shows the distribution of claims with different scopes separately for the three issue fields of immigration politics, integration politics, and antiracism and xenophobia. Immigration politics includes all issues pertaining to the regulation of the entry of migrants, their residence rights, and their voluntary or involuntary return. In addition to issues concerning the crossing of state borders, such as immigration and expulsion, this includes access to work and welfare for groups who do not have full residence rights, including nonrecognized asylum seekers and refugees, illegal aliens, and temporary labor migrants. By integration politics, we refer to all issues pertaining to the regulation of the Table 10.4 Overall scopes of claims in immigration and ethnic relations politics, and extent of multilevel claims making, by issue field (MERCI data 1992–1998)

European Other supranational International relations National or subnational Total Purely national claims N (weighed) =

Immigration

Integration

Racism and xenophobia

7.9 6.6 8.1 99.4 122.0% 79.4% 6,090

1.9 4.3 3.6 99.6 109.4% 91.1% 2,973

1.6 7.9 2.1 99.4 111.0% 88.7% 4,239

Table 10.5 Average discursive position on issues in immigration and ethnic relation politics, by claim scope and issue field (MERCI data 1992–1998) Immigration European .03 Other supranational .47 International relations –.03 All claims with nonnational references .13 Purely national claims .18 Overall average .17 N (weighed) = 6,090

Integration .48 .39 .20 .36 .41 .40 2,973

Racism and xenophobia Overall average .54 .13 .79 .58 .83 .12 .76 .65 .66 4,239

.31 .39 .38 13,302

Note: Discursive positions may range from –1.00 if all claims in a category were anti-immigrant to +1.00 if all claims in a category were proimmigrant; see text for further explanation.

The Denationalization of Immigration Politics 241

integration of resident migrants, including issues relating to their social, political, and cultural rights, as well as claims about discrimination. The third issue field concerns the politics of antiracism and xenophobia, which covers those claims relating to real and perceived acts of overt racist abuse or violence in the public domain, including both such acts themselves, and the antiracist claims against them.27 Instead of five separate tables for each country, we have here taken the countries together because the differences between the three subfields were highly consistent across them. In order not to give countries (especially Germany) with high numbers of cases a greater impact on the overall result, we have weighed the data in such a way that each country contributes equally to the total. Table 10.5 shows us additionally the average valence of claims of different scopes in these three issue fields, measured on a scale from “–1.00” if a claim aimed at a deterioration (or opposed improvements) in immigrant’s situation and rights, to “+1.00” if a claim implied improvements for immigrants (or opposed deterioration). Claims received a score of “0” if they were ambivalent or neutral regarding immigrants’ situations and rights The scores in the table are averages computed across all claims in a certain category. Looking in Table 10.3 at claims with a European dimension, we see that surprisingly such claims occurred by far most frequently in non-EU member Switzerland (9 percent) followed at some distance by Euroskeptic Britain (5 percent). As Table 10.4 shows, claims with a European dimension were strongly concentrated in the immigration field, where they make up 8 percent of all claims. Moreover, Table 10.5 shows that claims with a European dimension were more likely than the average claim to imply restrictions in the rights of immigrants and to emphasize strict entry criteria and border controls (see the average valence of .03 for European claims in Table 10.5 compared to the .17 overall average for immigration claims). Sometimes such claims were made in line with existing European policies to control immigration (e.g., Schengen), but in Britain and to a greater extent still in Switzerland, the European dimension of claims often consisted of a negative reference toward both the EU and immigrants. In Switzerland, such claims were typically inserted in the conflictive debates that raged throughout the 1990s about whether or not the country should join the EU, conclude treaties with it, or adapt its legislation to EU legislation. One prominent argument of EU opponents in this debate was that adaptation to or membership of the EU would lead to increased and uncontrolled immigration to Switzerland. This would for instance give North African immigrants holding the French nationality unrestrained entry to Switzerland, as the radical right leader Christoph Blocher argued. Similar arguments about the linkage

242 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

between EU integration and fears of loosing control over immigration flows were made by the British conservatives. Contrary to European claims, other supranational claims are more evenly spread across the three issue fields (see Table 10.4) and are(with the exception of integration issues(more often than the average claim in favor of immigrants and the protection and improvement of their rights (see Table 10.5). Switzerland also has the highest proportion of other supranational claims (10 percent, see Table 10.3) among our countries. Unlike the European dimension, which is often invoked by opponents of immigration, immigrants and their supporters in Switzerland frequently draw on supranational sources of legitimacy to criticize Swiss immigration and ethnic relations policies. Switzerland is both the seat of many supranational NGOs and institutions (e.g., the Geneva-based UNHCR(and a country that has been very reluctant to become a member of supranational institutions and subscribe to international conventions. Like the question of EU membership, Swiss membership in other supranational bodies and conventions is highly contested. While a majority of the population(at least in the dominating German-speaking cantons(remains hostile to the EU, Switzerland, after a long and controversial debate, finally joined the UN in 2002, and has recently become a signatory to several international treaties relevant to immigration issues, most importantly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which Switzerland joined in 1994. In line with the postnational thesis, these new supranational commitments of Switzerland have been welcome argumentative tools for proimmigrant groups to demand adaptation of Swiss policies to international standards. Claims with an international relations dimension are more similar to European than to other supranational claims. They are heavily concentrated in the field of immigration politics, where they make up 8 percent of all claims (Table 10.4), and they more frequently imply restrictions in immigrant rights than purely national claims. Claims involving the country of settlement and another nation-state are frequently about stricter border regimes or the repatriation of immigrants. For instance, in 1997 Gerhard Schröder (then still prime minister of Lower Saxony) proposed to make developmental aid to countries dependent on their cooperation in the repatriation of refugees. Further examples are the repatriation treaties that were concluded with countries of origin of immigrants such as Bosnia, Croatia, China, and Vietnam, or the 1994 decision of the Netherlands, Germany, and Belgium to more intensively cooperate in controlling the common borders in order to implement stricter asylum regimes. Only in the field of racism and xenophobia is there a tendency for international relations claims to be more proimmigrant than national claims. These claims are primarily interventions by

The Denationalization of Immigration Politics 243

homeland organizations against discrimination and racist violence in the countries of origin. Germany was for instance on several occasions criticized by the Turkish government and by Turkish media for not doing enough to protect Turkish immigrants from racist violence. For similar reasons, Germany was under the scrutiny of foreign Jewish organizations such as the American Jewish Committee, and of the Israeli government, which criticized anti-Semitic tendencies and expressed concern about the safety of Jewish immigrants from the former Soviet Union. Postnational theorists paint a picture in which restrictive nation-states are compelled by supranational norms and transnational interdependencies to relax immigration controls and grant rights to immigrants. This, our data show, is a very rosy and one-sided picture of the political space beyond the nation-state. As Table 10.5 shows, claims with aspects that reach beyond the country of settlement are on average less rather than more in favor of immigration and immigrant rights (compare the valences of claims with any nonnational reference to those of purely national claims). This is true for immigration politics as well as integration politics (but not for antiracism), and holds in four of our five countries (only in France there is no difference; not shown in the table). Behind this result lie of course important differences between European and international claims on the one hand, and other supranational claims, on the other. The former two tend to be focused on interstate cooperation or supranational coordination of border controls, restrictive entry and recognition regimes, as well as the control of international crime and terrorism (e.g., several claims on Turkish-German cooperation to fight Kurdish separatism among immigrants living in Germany). Supranational claims beyond the European level conformed more to the postnational thesis and tended to be in defense of immigrant rights, referring to international commitments and norms, as well as to treaties such as the Geneva Convention on refugees or the ICERD convention on racism. These variations receive further profile from the results in Table 10.6, which shows the distribution of actors for claims with different scopes. This enables us to see which actors are able to profit from the normative and institutional spaces beyond the nation-state. We use the notion of a political space here in a nonterritorial sense. For example, a claim forms part of the European space if it refers in one or more aspects to the European level, irrespective of where the claim is made or whether it simultaneously refers to other political spaces. Against the optimism about the European Union empowering immigrants and sustaining their rights against restrictive member states that often prevails in the literature, the European Union arena turns out to be a not very conducive environment for civil society actors in general, and immigrants in particular. Much more still than on the national level,

244 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy Table 10.6 Distribution of actors by overall claim scope (MERCI data 1992–1998) European Governments Legislatives and political parties Judiciary State executive agencies Total state and party actors Socioeconomic interest groups Migrants and minorities Extreme right and racist actors Antiracist and prominority groups Other civil society groups Total civil society actors Total N (weighed) =

Other International Purely national supranational relations claims

31.1

12.1

38.2

20.6

33.2 2.6 9.4

9.6 1.8 10.5

16.0 2.6 6.5

25.6 5.4 9.0

76.3

34.0

63.4

60.6

5.5 2.3

5.9 12.4

5.2 13.6

7.5 9.9

3.1

3.9

1.8

5.5

8.0

18.5

7.0

7.6

4.9

25.2

9.1

8.9

23.7 100.0% 601

66.0 100.0% 868

36.6 100.0% 691

39.4 100.0% 11,301

Note: Discursive positions may range from –1.00 if all claims in a category were anti-immigrant to +1.00 if all claims in a category were proimmigrant; see text for further explanation.

state and party actors(and governmental actors in particular(are the dominant actors in claims making relating to the European Union (76 percent for European claims compared to 61 percent for purely national claims). Civil society groups are correspondingly less prominent in the European political space. The most striking finding, however, is that immigrants are virtually absent from European claims making, and are five times less prominent (2 percent against 10 percent) than within the purely national context. Claims with international relations dimensions resemble European claims to some extent. State and party actors are 63 percent clearly less prominent than among European claims, but still more than on the national level. Government actors (38 percent) are particularly prominent in claims making involving actors or policies in other states, most frequently immigrants’ countries of origin. Contrary to the European Union space, this international political space offers better opportunities for immigrants, who are more

The Denationalization of Immigration Politics 245

prominent here than in exclusively national claims making (14 percent against 10 percent). This result holds in all five countries: in each of them, the share of immigrants among international claims is higher than among the purely national claims (not shown in the table). The supranational arena beyond the EU again deviates strongly. Here, civil society actors are with a share of 66 percent much more prominent than in either of the other political spaces. Immigrants, with a share of 12 percent, profit somewhat from the normative and institutional opportunities of these supranational spaces, which are often linked to institutions and conventions in the context of the United Nations. The most important beneficiaries, though, are advocacy NGOs that support immigrants or fight racism (19 percent against 8 percent on the purely national level), as well as the category of “other civil society groups” (25 percent against 9 percent on the purely national level), the most important component parts of which are welfare organizations, churches, and human rights and developmental NGOs, such as Amnesty International or Terre des Hommes. With these qualifications about the ambivalent nature of non-national political spaces from the point of view of immigrants and their rights in mind, we now assess the magnitude of tendencies of denationalization and multileveling. If we return to the results displayed in Table 10.3, we see that altogether between 10 percent (the Netherlands) and 25 percent (Switzerland) of all claims referred to political spaces beyond the country of settlement. In Table 10.4, we have seen that there are important differences among the three subfields in the extent of multilevel claims making, which is clearly more relevant in the immigration field (22 percent) than in the fields of integration (9 percent) and racism and xenophobia (11 percent), which have remained more strongly topics that are debated and fought out in a purely national context. It is a somewhat arbitrary judgment whether to see these levels of multilevel claims making as being great or small. Compared to the 76–91 percent that remain fully within the national context (see Table 10.3), the magnitude of multilevel claims making does not seem impressive, especially if one considers the built-in bias in favor of non-national spaces in our categorization of claims. All aspects of a claim must be national in order to classify as a purely national claim, whereas it is sufficient for a claim to be classified as European if only a secondary or tertiary aspect refers to the European level. One might arrive at a different assessment of these 10–25 percent multilevel claims if one considers them as the vanguard of a trend toward an evergreater erosion of the exclusive relevance of national sovereignty and citizenship. The question then becomes whether references to political spaces beyond the nation-state are indeed becoming increasingly frequent over time.

246 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

Figure 10.1 Development of percentage claims with different scopes across five countries (MERCI data 1990–1999) Note: The 1990 and 1991 figures exclude the Netherlands; the 1999 data exclude Switzerland.

Our MERCI data cover only a period of seven years (1992–1998), which we can extend to ten years (1990–1999) for some countries. This is a rather short time period, which does not allow us to settle the issue conclusively, but if postnational citizenship and multilevel claims making are strongly emergent phenomena, we should be able to trace their rise even across a relatively short time period. Figure 10.1 shows the development of the shares of European, other supranational, international, and purely national claims for the period of 1990–1999. For 1990 and 1991, the data exclude the Netherlands, for 1999 they exclude France and Switzerland. The figure does not provide evidence for a growing importance of nonnational political spaces for the field of immigration and ethnic relations. This is again perhaps most revealing and unexpected for claims with a European dimension. Since the beginning of the 1990s, the European integration process has undoubtedly accelerated, by way of milestones such as the Maastricht and Amsterdam treaties, the introduction of the common currency, and the admission of new members. These developments do not seem to have affected claims making on immigration and ethnic relations to an important extent, at least not until the end of the 1990s. The institutions of

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the European Union do not have any competencies in integration politics (except relating to immigrants from other member states, who are not a publicly contested category of immigrants), and have only developed some symbolic policies in the field of antiracism (e.g., the 1997 European Year Against Racism). In the immigration field, there is some coordination in the context of the second Justice and Internal Affairs pillar, but decision making here is of the intergovernmental type and can only take place by unanimity among all fifteen member states. This has often stood in the way of the development of effective common policies, for instance regarding asylum procedures. Supranational and transnational political spaces beyond the European Union do not seem to be in the process of mounting a strong challenge against the nation-state’s predominance, either. Figure 10.1 shows that, with the exception of the year 1996, there even seems to be a weak overall trend toward a renationalization of claims making in the field. At the end of the 1990s, the share of purely national claims was almost ten percentage points higher (91 percent) than at the beginning of the decade (82 percent). These results largely hold if we analyze trends in the subfields separately. In all three of them, we find a tendency for multilevel claims to decrease rather than to increase over time. This trend is weak to insignificant in the field of immigration politics, where the levels of European and other supranational claims are relatively stable across the decade. We do however find a significant decline in international relations claims, which refer most often to relationships between receiving and sending countries of immigration. Such forms of claims making decline is bad news for the transnational perspective on immigration politics, which claims that precisely such links typify contestation over immigration in the modern era. Renationalization tendencies are much more pronounced in the field of integration politics. European, other supranational, and transnational claims were still significant—on a level comparable to that in immigration politics—in integration politics at the beginning of the 1990s, but by the end of the decade as much as 98 percent of all claims were of the purely national type, with no reference to foreign or supranational contexts whatsoever.28 Claims Making on Immigration in German Print Media, 1980–2002 The Europub data for Germany allow us to observe longer-term trends in immigration politics, starting in 1980, when immigration was only just emerging as a contentious issue in European politics, and ending in 2002. In addition, the Europub data allow us to look at the entire distribution of claims across political space, including also claims from the foreign politics pages of German newspapers, which report on immigration issues around the

248 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy

world that may have no direct bearing on Germany. To allow comparison, Figure 10.2, based on the Europub data, is structured in a similar way as Figure 10.1, which is based on the MERCI data. For the comparison it is important to remember that all claims in Figure 10.1 have some bearing on German immigration politics as this was the criterion for inclusion. A claim with a European dimension in Figure 10.1 is thus always a claim on European issues that implicate German immigration politics. This includes both European claims with a specifically German dimension (e.g., the German government’s call for common European asylum guidelines), and general European claims that have repercussions on all member states, including Germany (e.g., discussions on the Schengen agreement). European claims in Figure 10.2, however, also include claims that do not implicate Germany, for example, a comment by the European Commission on the French-British controversy over asylum seekers. The other categories similarly have a wider definition in Figure 10.2. In Figure 10.1, “international relations” refers to claims that make a connection between Germany and another country, for example claims on deportation treaties. In Figure 10.2, we distinguish two types of claims with an international dimension: those that refer to the politics of, or actors in, other EU

Figure 10.2 Development of multilevel claim scopes in immigration in the German press (Europub data 1980–2002)

The Denationalization of Immigration Politics 249

member states29 and those that refer to other countries of the world. Some of the claims in these two categories refer, like those in the international relations category of Figure 10.1, to relations between Germany and other countries. However, the majority of the “other member states” and “other international” claims in Figure 10.2 are claims on the immigration politics of other countries without reference to Germany (e.g., a statement by a Danish politician on stricter immigration legislation in Denmark) or they refer to relations between third countries (e.g., between Spain and Morocco) or between third countries and supranational institutions (e.g., a claim by a UNHCR representative on a threatening refugee crisis as a result of the Soviet invasion of Afghanistan). Even with this all-inclusive definition of the universe of relevant claims, we find that claims with a German dimension continue to predominate in the German press. Only in 1980 were claims with a German dimension a plurality rather than an absolute majority. This should however not be seen as an indicator for a particularly high level of international orientation of German media coverage in that year, but rather is due to the fact that immigration had not yet become a salient issue of political controversy in Germany.30 With some minor fluctuations, the share of claims with a German dimension has been fairly constant since 1985, ranging between 65 percent and 85 percent of all claims. Interestingly, in 1980 and 1985 the categories of “German” and “purely German” overlapped almost perfectly, implying that when during the 1980s claims referred to German immigration politics they referred to that and to nothing else. This changes considerably in the period from 1990 onward. A sizeable part of claims referring to Germany now become multilevel claims, which also refer to other countries or to supranational polity levels. The share of such multilevel claims ranges between 20 (in 2002) and almost 50 percent (in 1990) of all claims with a German dimension. This finding indicates that the lack of a trend toward more multilevel claims making in Figure 10.1 is due to the fact that the time series in that figure starts after the major increase in multilevel claims making during the 1980s has already taken place. At the same time, Figure 10.2 does confirm the finding from Figure 10.1 that the extent of multilevel claims making has not further increased since 1990. To the contrary, from 1990 to 2002 we observe a decline in the share of multilevel claims in both data sets. We must thus refine the conclusions we drew on the basis of our earlier analysis. During the 1980s, and in all likelihood particularly toward the end of the decade when the bipolar world order crumbled and the Iron Curtain fell, a marked denationalization of immigration discourse occurred. However, it seems that this moment of relaxed international tensions and concomitant

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enthusiasm for transnational and supranational solutions to political problems was at the same time the heyday of postnationalism in immigration politics. Since then, the tendency to frame immigration issues in terms of German actors, causes, and solutions is on the rise again. Qualitative impressions on public debates in other countries (e.g., in the Netherlands) suggest that this is not just a German phenomenon. For Europeanized forms of claims making, Figure 10.2 allows a more positive assessment than Figure 10.1. While the share of claims referring to nonEU member states declines steadily since 1990 and other supranational claims remain at about the same low level, claims referring to EU member states and to the EU level display a rising trend. Claims referring to the EU level and to other member states were virtually absent in the 1980s, but have each commanded a share of 10–20 percent of all claims reported in the German press since 1990. Closer inspection of both these categories shows that what has increased are not claims that refer to Germany and to the EUlevel or to other member states (such claims have commanded a relatively stable share since 1990), but rather claims that are either about another member state’s immigration politics (e.g., legalization of undocumented immigrants in Italy), or claims involving the EU and other member states. Thus, what we see is a form of “horizontal” Europeanization31 in which growing interdependencies among member states lead to growing awareness of, and attribution of, relevance to what happens in other member states. Of course, it remains to be investigated whether these findings can be generalized beyond Germany. Future analyses of the Europub data will be able to answer that question at least partially, because the project includes data for six other Western European countries besides Germany, albeit the time frame for these countries is limited to 1990–2002 and does not include the 1980s, in which—if we can generalize from the German data—the greatest changes in the direction of Europeanization and multilevel claims making seem to have taken place. While the longer time frame and greater inclusiveness of the Europub data reveal stronger denationalization tendencies than the MERCI data for the 1990s, this says nothing about the question of what denationalization of immigration politics in as far as it occurs implies for the distribution of power in the public discourse. The MERCI data have shown that Europeanization and transnationalization benefit powerful, institutional actors relative to weaker civil society actors, and to immigrants and their organizations in particular. Related to this, European and transnational claims tend to be more often about restrictions in immigrant rights than claims that remain within a national frame of reference. Tables 10.7 and 10.8 replicate the analysis of Tables 10.5 and 10.6, but now on the basis of the Europub data.

The Denationalization of Immigration Politics 251 Table 10.7 Average discursive position on immigration politics by claim scope (Europub data, 1980–2002) European .06 Other supranational .59 -.04 International relations All claims with non-national references .00 Purely national claims .17 Overall average .07 N (weighed) = 240 Note: Discursive positions may range from –1.00 if all claims in a category were anti-immigrant to +1.00 if all claims in a category were proimmigrant; see text for further explanation.

Table 10.8 Distribution of actors in immigration politics by overall claim scope (Europub data, 1980–2002) European Governments 61.5 Legislatives and political parties 19.7 Judiciary 1.7 State executive agencies 1.8 Total state and party actors 84.6 Socioeconomic interest groups 1.8 Media and journalists 5.1 Migrants and minorities 2.6 Extreme right and racist actors 0.0 Antiracist and prominority groups 1.7 Other civil society groups 4.3 Total civil society actors 15.4 Total 100.0% N (weighed) = 117

Other International Purely national supranational relations claims 46.6

53.4

35.0

0.0 3.3 23.3 73.3

7.2 3.8 13.4 77.9

24.6 8.1 4.2 72.0

0.0 0.0 6.7

1.0 4.3 4.3

6.1 8.1 4.7

0.0

0.0

0.0

13.3 6.6 26.7 100.0% 30

1.4 11.0 22.1 100.0% 208

0.9 10.0 28.0 100.0% 211

We can be relatively short about the results displayed in these two tables because they are exactly in line with what we earlier found. If we compare the first column of Table 10.5 (which refers to immigration politics) with Table 10.7, we see that in both tables claims that refer to relations between nationstates tend to be the ones that have the most negative implications for immigrants, followed by claims with a European dimension. Purely national claims, by contrast, tend to be more than average favorable toward immigrants and

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their rights. The only form of claims making in both tables that is clearly more favorable for immigrants than purely national claims are those claims that refer to supranational contexts beyond Europe, primarily the UN and its subsidiary organizations and treaties. Table 10.8, finally, confirms the finding of Table 10.6 that Europeanized claims making is strongly dominated by institutional actors, particularly those from the governmental and administrative level. Civil society actors, by contrast, are very weakly represented among the claims with European dimensions, and immigrants in particular have a share of only 3 percent among claims with a European frame of reference. Purely national claims provide the clearest contrast. Although still not impressive, the share of immigrants in purely national debates is higher (5 percent) and the share of all civil society actors taken together is almost twice as high as among Europeanized claims (28 versus 15 percent). Other supranational claims making also provides a relatively conducive environment for proimmigrant claims making. Although the share of all civil society actors together is slightly lower than among the purely national claims, immigrants command a higher share among other supranational claims (7 percent), and like in Table 10.6, the collective actors that feel most at home in the supranational political space are antiracist, prominority, and human rights organizations (13 percent). Conclusions What conclusion on the relevance of the postnational and transnational theses can we draw from our analyses? Although our data show that multilevel claims making is a significant phenomenon in the politics of immigration and ethnic relations, the erosion of the nation-state as a frame of reference for political contestation is not nearly as dramatic as some would have it. To begin with, European, supranational, and transnational claims are primarily relevant in the immigration subfield, which deals with issues of entry and exit and rights of residence. The role of postnational and transnational claims in integration politics, which deals with immigrants’ citizenship rights in the social, economic, political, and cultural domains, has much more strongly remained a nationally framed field. Moreover, while in this subfield postnational and transnational dimensions had a certain modest relevance at the beginning of the 1990s, we see a strong renationalization of public debates on immigrant integration over the course of the 1990s. Taking a longer-term perspective for the German case over the period 1980–2002, we saw that the major shift toward increased multilevel claims making in the subfield of immigration politics has—at least in Germany— occurred during the 1980s. This analysis also confirms, however, that since

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the early 1990s the tendency is in the direction of a renationalization of public debates rather than of a further increase in multilevel claims making. Europeanized immigration claims, which either refer to immigration politics in other member states or to the EU level, are an exception to this trend and remain stable or increase even further after 1990. A more realistic view on political spaces beyond the nation-state is not only in order regarding their as yet modest extent, but also if we consider the effect of denationalization tendencies on the influence of different actors and positions in public debates on immigration and ethnic relations. Our results show that denationalization as such does not necessarily improve the opportunities for proimmigrant claims making over those available in the national political arena. State actors are powerful actors in the transnational and supranational arenas, and much of their efforts there are geared toward interstate cooperation to strengthen immigration controls, emphasizing a framing of immigration in the context of crime prevention and security. Against these tendencies, some supranational arenas, particularly those linked to the United Nations, provide better opportunities for proimmigrant NGOs, and transnational linkages to migrants’ homelands provide some leverage for immigrant mobilization. On the whole, however, it is questionable whether these forms of claims making that fit the postnational view provide an effective counterbalance against the restrictive actions of state actors in the supranational and international arenas. Our data indicate that within the context of the European Union in particular, the balance of forces is such that until now, denationalization tendencies have been harmful rather than beneficial for immigrants and their interests. References 1. For example, Held, D. 1996. “The Decline of the Nation State.” In Becoming National: A Reader, ed. G. Eley and R. G. Suny. Oxford: Oxford University Press; Basch L., N. Glick Schiller, and C. Szanton Blanc. 1994. Nations Unbound: Transnationalized Projects and the Deterritorialized Nation-State. New York: Gordon and Breach; Sassen, Saskia. 1998. “The de facto Transnationalizing of Immigration Policy.” In Challenge to the Nation-State. Immigration in Western Europe and the United States, ed. Christian Joppke, 49–85. Oxford: Oxford University Press; Cohen, Jean L. 1999. “Changing Paradigms of Citizenship and the Exclusiveness of the Demos.” International Sociology 14 (3): 245–68. 2. Soysal, Y. N. 1994. Limits of Citizenship. Chicago: University of Chicago Press; Jacobson, D. 1996. Rights across Borders. Immigration and the Decline of Citizenship. Baltimore: Johns Hopkins University Press. 3. Jacobson, D. 1996: Rights across Borders. Immigration and the Decline of Citizenship. Baltimore: Johns Hopkins University Press.

254 Ruud Koopmans, Paul Statham, Marco Giugni, and Florence Passy 4. E.g., Meehan, E. 1993. Citizenship and the European Community. London: Sage; Rosas, A., and E. Antola, eds. 1995. A Citizens’ Europe. In Search of a New Order. London: Sage; Wiener, A. 1997. “Making sense of the new geography of citizenship: Fragmented citizenship in the European Union.” Theory and Society 26:529–60. 5. E.g., Roche, M. and R. van Berkel, eds. 1997. European Citizenship and Social Exclusion. Aldershot, UK: Ashgate; Thränhardt, Miles, Robert Thränhardt, and Dietrich Thränhardt eds. 1995. Migration and European Integration. The Dynamics of Inclusion and Exclusion. London: Pinter; Overbeek, Henk. 1995. “Towards a new international migration regime: Globalization, migration and the internationalization of the state.” In Migration and European Integration. The Dynamics of Inclusion and Exclusion, ed. R. Miles and D. Tränhard. London: Pinter. 6. Hailbronner, K. 1995. “Third-Country Nationals and EC Law.” In A Citizens’ Europe. In Search of a New Order, ed. Allen Rosas and Esco Antola. London: Sage. 7. Faist, T. 1995. “Boundaries of welfare states: immigrants and social rights on the national and supranational level.” In Migration and European Integration. The Dynamics of Inclusion and Exclusion, ed. R. Miles and D. Thränhardt. London: Pinter, 192. 8. Joppke, Christian. 1997. “Asylum and State Sovereignty. A Comparison of the United states, Germany, and Britain.” Comparative Political Studies 30 (3): 259–98. 9. Faist, Thomas. 1997. “Immigration, Citizenship and Nationalism. Internal Internationalization in Germany and Europe.” In European Citizenship and Social Exclusion, ed. Maurice Roche and Rik van Berkel. Aldershot, UK: Ashgate, 213. 10. Joppke, C. 1999. Immigration and the Nation-State. The United States, Germany, and Great Britain. New York: Oxford University Press. 11. Freeman, G. P. 1995. “Modes of Immigration Politics in Liberal Democratic States.” International Migration Review 29 (4): 881–902. 12. See Soysal, Y. N. 1994. Limits of Citizenship. Chicago: University of Chicago Press; Soysal, Y. N. 1997. “Changing parameters of citizenship and claims-making: Organized Islam in European public spheres.” Theory and Society 26:509–27, for examples. 13. Koopmans R., and P Statham. 1999a. “Challenging the Liberal Nation-State? Postnationalism, Multiculturalism, and the Collective Claims Making of Migrants and Ethnic Minorities in Britain and Germany.” American Journal of Sociology 105 (3): 652–96. 14. Koopmans R., and P Statham. 2001. “How national citizenship shapes transnationalism. A comparative analysis of migrant claims-making in Germany, Great Britain and the Netherlands.” Revue Européenne des Migrations Internationales 17:63–100.

The Denationalization of Immigration Politics 255 15. For an overview, see Rucht, D., Koopmans, R. and F. Neidhardt, eds. 1999. Acts of Dissent—New Developments in the Study of Protest. Lanham, MD: Rowman and Littlefield. 16. See Koopmans, R., and P. Statham. 1999b. “Political Claims Analysis: Integrating Protest Event and Public Discourse Approaches.” Mobilization 4 (2): 203–22. 17. We would like to thank Thom Duyvené de Wit who gathered the data for the Dutch case and who is finishing his PhD dissertation on the Dutch case. 18. See Koopmans, R. 2004. “Movements and media: Selection processes and evolutionary dynamics in the public sphere.” Theory and Society 33, (3–4): 367–391. 19. McCarthy, J. D., C. McPhail, and J. Smith. 1996. “Images of Protest: Estimating Selection Bias in Media Coverage in Washington Demonstrations, 1982, 1991.” American Sociological Review 61:478–99. 20. This project is sponsored by the European Commission in the context of its fifth Framework program (project number HPSE-CT2001-00046). See further the project Web site at http://europub.wz-berlin.de. 21. See Koopmans, R., and P. Statham. 2001. “How national citizenship shapes transnationalism. A comparative analysis of migrant claims-making in Germany, Great Britain and the Netherlands.” Revue Européenne des Migrations Internationales 17:63–100; Koopmans, Ruud, Paul Statham, Marco Giugni, and Florence Passy. 2005. Contested Citizenship. Immigration and Cultural Diversity in Europe. Minneapolis: University of Minnesota Press. 22. There are a few transnational newspapers catering to business elites, such as the Financial Times. While these might be relevant for public debates on economic issues, they hardly play a role for debates on immigration and ethnic relations. 23. Claims with a supranational scope of reference are the only non-national type where the percentage shares are generally lower in Table 10.2 than in Table 10.1. This is due to the decision to code national branches of international NGOs such as Amnesty International as supranational actors, even if they act entirely within a national context. 24. For a similar conclusion regarding protest mobilization, see Imig, D., and S. Tarrow, eds. 2001. Contentious Europeans. Protest and Politics in an Emerging Polity. Lanham: Rowman and Littlefield. 25. E.g., Held, D. A. McGrew, D. Goldblatt, and P. Jonathan. 1999. Global Transformations. Politics, Economics and Culture. Stanford, CA: Stanford University Press; Zürn, Michael. 1998. Regieren jenseits des Nationalstaates. Frankfurt: Suhrkamp. 26. Of course, multileveling of claims can also occur within the nation-state context if claims simultaneously have national, regional, and local dimensions. In our coding, we have not systematically distinguished these different scopes within the national context. For the present discussion, however, it is irrelevant to what extent multilevel claims making occurs within the national context. 27. The difference between discrimination claims and antiracist claims is that the latter refer to overt abuse or violence, whereas discrimination claims refer to hidden or structural sources of inequality. Our use of the term “racism” here is thus more

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28.

29.

30.

31.

narrowly circumscribed to abuse and violence in the public domain than it often is in common parlance. In our coding, it is not the language used in the claim that is decisive, but rather whether the claim refers to a structural context of inequality in which case it belongs to integration politics, or whether it relates to a real or perceived instance of abuse or violence in which case it belongs to racism and xenophobia. For example, claims against “institutional racism” of the police in Britain could arise in relation to either of these contexts. The pattern for the field of antiracism and xenophobia is more erratic, but also points toward an overall decline in the various categories of multilevel claims and an increase in entirely nationally confined ones. In order not to bias the time trend in favor of increasing Europeanization, the category of member states was not defined on the basis of the actual member states at a particular point in time (i.e., nine in 1980, twelve in 1985 and 1990, and fifteen from 1995 onward), but rather on the basis of a constant set of countries, namely the fifteen member states as of 1995. From 1980 to 2000 the data show a fairly regular and more than sevenfold increase in the number of claims on German immigration politics. In 2002 the number declines again to about the same level as in 1995. The peak in 2000 is due to the intense controversy over the government’s plan for a new, more liberal immigration law (Zuwanderungsgesetz), which played an important role in several regional elections during that year. Koopmans, R., and J. Erbe. 2004. “Towards a European public sphere? Vertical and horizontal dimensions of Europeanised political communication.” Innovation 17:97–118.

CHAPTER 11

Immigrants and Participation beyond the Nation-State Opportunity-Capability Rift in EU Immigration Policy Process Saime Ozcurumez

Introduction

E

fforts at Europeanizing immigration policy in the post-Maastricht era were set against a backdrop of transformations in politics and governance in the European Union (EU). Commitments to increasing openness of, and participation in, the supranational policy process aimed to alleviate the democratic deficit in the EU through imagining an “ever closer union.” Accordingly, the tiers of EU policy making proliferated, the channels of participation into the EU policy process multiplied, and the policy actors diversified. As stakeholders, non-EU migrants themselves were the most recent newcomers to the emerging policy scene. In this chapter, I aim to investigate the supranational engagement of Turkish migrant associations in France and Germany in the EU immigration policy process: what explains similarities and differences in terms of forms and levels of participation by migrant associations in different national contexts as they engage in the EU immigration policy process? In addressing this question, I analyze the forms and levels of migrants’ supranational engagement by focusing on the combined impact of macro-level (EU institutional context) and micro-level (nation-state–level actors engaged in supranational collective organization) variables. I argue that regardless of the newly introduced supranational channels into the EU policy process, the collective organizational experience at the national level locks in a certain path dependency that holds back the new policy actors (migrant groups) from making full use of EU-level opportunities.

258 Saime Ozcurumez

Consequently an incompatibility emerges between the supranational opportunities provided by the EU and the capabilities of national-level stakeholders who intend to use them. Thus there exists a supranational-level opportunity/ national-level capability rift in terms of stakeholder participation in the EU policy processes. Underlying this rift are the problems intrinsic to the design of supranational opportunities that impair their potential to cater to national-level clients. At the same time, while national-level capabilities allow actors to operate in the domestic context (albeit with problems), they are not readily transposed so as to permit reaping supranational benefits. This opportunity/capability rift is further widened by the complex nature of nationallevel institutional arrangements of engagement in different member states, which define the policy arena for the immigrant groups, in turn shaping the parameters of collective supranational mobilization. I continue with a discussion on the openings through the EU institutions into the EU immigration policy process. I discuss how each opening through EU institutions has constrained supranational collective claims making by stakeholders in the immigration policy making. Second, I analyze a set of collective action problems underlying incentive structures, objectives, and characteristics of the issue area. I conclude by reflecting on the implications of stakeholder mobilization beyond the nation-state for the emergence of an EU immigration policy process and whether these transnational efforts challenge the centrality of the nation-state. Setting the Scene for Stakeholder Involvement in the EU In the aftermath of the Maastricht Treaty, scholars portrayed the EU increasingly as a multilevel governance (MLG) context.1 Accordingly, the nationstate came to be presented as one among many actors whereby they share power with other groups and are far from monopolizing decision making. From this MLG perspective, the EU constitutes a unique kind of polity whereby nation-states operate within a multiactor and multitier “negotiating system.”2 Such conceptualization of the EU opens up a line of inquiry emphasizing the role of nonstate actors without overlooking the impact of nation-states on governance in the EU.3 Moreover, EU governance and policy processes intersect in contributing to a heightened interest in processes of the “Europeanization” of participatory rules, institutions, and practices.4 In this way, therefore, a new polity engenders a new politics whereby parameters (actors, venues of participation, and channels) are Europeanized. Such processes culminate in transformations in terms of the stage, scope, and actors of governing, which constitute the point of departure for the present inquiry. Thus EU immigration politics and policy are viewed here within the

Immigrants and Participation beyond the Nation-State 259

framework of an emerging system of multilevel governance. I share the fundamental premise of MLG theorists that “disperse allocation of governing authority stimulated all kinds of actors to go transnational.”5 However, there remains doubt whether this shift to transnationalism dispels the centrality of the nation-state. POS and the Supranational Institutional Context in Immigration Policy Scholars working on the political opportunity structures (POS) can be differentiated along two lines with respect to their view on whether the EU itself is a new venue, or if it is a part of a larger set of international opportunity structures. Those who claim that the EU itself constitutes a venue underline the emergence of this entity as leading to the reformulation of new opportunity structures that led to “venue shopping” by various national and transnational interest groups.6 For this first group, EU-level political opportunities constrain the visibility, mobility, and shape of nonstate actors by mainly removing the exclusive role for nation-states in policy processes. This genre of research maintains that EU-level social movements’ capacity to mobilize and impact policy processes depend on their ability to adapt to opportunities and constraints at the new level. Moreover, movements might benefit from EU structures to the extent that those structures are receptive or open to their demands.7 For those in the second group, the EU constitutes one option among a larger strategy of global venue shopping to pursue interests.8 Such works, in parallel to the first group, argue that transnational action provides activists and interest groups with a certain level of autonomy from the nation-states for influencing overall direction of policy.9 In this chapter, I adopt a broad definition of the POS as each channel that aims to facilitate participation in decision making while displaying certain similar structural features that might differ across channels.10 Therefore the EU is a venue for participation that operates through its institutions. In this context, the POS constitute the independent/macrolevel variable that shapes the ways in which migrant associations participate in the EU policy process. Migrant Mobilization, POS, and Institutionalist Accounts Within the current research on examining the mobilization of nonstate actors, several studies have centered on the questions pertaining to the role of migration and migrant mobilization from a range of perspectives and emphasizing a variety of levels. The initial focus was on Europeanization of ethnic and racial relations,11 the changes in cultural pluralism and diversity,12 successful

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transnational mobilization,13 and migrant political organizations.14 Diverse viewpoints and a multitude of explanations surfaced on themes such as mobilization and representation of ethnic minorities and migrants in a crossnational perspective, limits of multicultural Europe, and the dynamics of the shifts in ethnic identities and claims making.15 Most have conveniently, fashionably, and to a certain extent convincingly emphasized more the problem of democratic deficit in the EU, “limits” of European citizenship, and the agenda on antiracism. However, despite versatile and varied conclusions in terms of the impact of these factors, all remained limited with respect to analyzing the underlying institutional dynamics of these processes. Comparative studies inspired by variants of new institutionalism(s) have been utilized in other studies.16 A more recent set of works aimed to focus exclusively on EUlevel mobilization on migrant-related policies.17 These works were also partially institutionalist and focused on supranational opportunity structures and on activities of promigrant lobby groups, and various supranational institutions such as the directorate generals (DGs), which opened up on issues concerning immigration and minorities in Europe. The partial novelty of this line of study was the reference made to the former European Union Migrants’ Forum (EUMF), and its challenges so as to draw attention to the issues concerning its effectiveness as a supranational intermediary body between national migrant groups and the supranational level. They also established a set of criteria such as transparency and accessibility18 of the POS in general through which I assess supranational participation. Macrolevel Variables: POS and Immigration Policy Involvement The emergence of the multilevel, multi-actor EU makes possible a systematic analysis of EU-level POS use by nationally organized groups. This study differs from previous work, first, as it explains how and why a similar ethnic group situated in two EU member states with considerably different immigrant incorporation regimes differed very little in terms of their participation in the EU policy process. In this study, my focus is on the supranational dimension using a comparative case study of the same migrant group in two sufficiently contrasting European countries. Second, I do not aim to assess policy influence but rather mainly evaluate participatory efforts. Third, my research draws on existing studies to combine the examination of both the supranational and the national level to define and explain the supranational opportunity/national capability rift in EU immigration policy from the standpoint of nonstate actor/stakeholder involvement.

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Microlevel Variables: Collective Action Problems Nationally organized migrant associations encounter classic problems of collective action as they engage in supranational policy participation. Drawing on the literature on collective action, I emphasize incentives for collective action, characteristics of collaboration with other groups (national and supranational level), and the nature of the policy area. The instrument offered in the literature to overcome the collective action dilemma is the provision of an incentive structure within which exclusive goods are available only to group members. The availability of incentives allow for the “rational actors” to reevaluate the costs and benefits to be incurred by engaging in collective action. Accordingly those groups that aim at influencing public policy outcome form coalitions to reach desired goals. Hence the presence of strategic, policy oriented, and material incentives increases the likelihood of collective action for supranational participation by nationally organized migrant associations. Moreover, two factors come into play in shaping collective action. First, the possibility to collaborate with other groups that pursue similar interests increases the likelihood of supranational collective action. In the case of migrant associations at the national level that aim at pursuing migrants’ interests at the EU level, their main partners were the former umbrella organizations, EUMF (European Union Migrants’ Forum) and ECAS (European Citizen Action Service). It is significant to observe whether collaboration with these strategic partners is fully operational for the nationally organized migrant groups. Second, complexity of issue area increases the likelihood of collaboration. The contributing factors to success are not only the numerical advantage but also the enhanced capacity to disseminate clear, concise information that in turn improves understanding and deliberate action for both the public and policy makers.19 Therefore, in theory, the complexity of the EU immigration policy area would lead to increased transnational collective action by migrant groups. In this section, I have briefly introduced the microlevel variables that frame my empirical analysis in the cases of Turkish immigrant associations in France and Germany. Now I turn to my findings regarding the supranational opportunity/national capability rift with respect to my first proposition on the relationship between the POS and supranational participation. Prospects and Problems of Supranational Participation The EU has taken concrete steps, an earlier one of which was the introduction of EU citizenship, with a view to construct a polity closer to its peoples and to enhance its legitimacy before its citizens. Such efforts are

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encapsulated in attempts to promote increased access to information, to enforce transparency, and to simplify decision-making processes. The access points for formal participatory channels are identified in this study as different European Community institutions—the European Commission, the European Parliament, and the European Court of Justice.20 Despite a common concern for promoting an idealized participatory democracy, they differ in levels and scope of opportunities offered to stakeholders such as nationally organized migrant associations. The Commission With the goal of enhancing its transparency and accessibility, the Commission identified multiple channels that are in principle open to use by the legally resident individuals as they intend to voice their claims at the “agenda-setting” phase of policy process. The question for this study is whether stakeholders represented by nationally organized migrant associations have been able to use these structures, and the extent to which they have successfully affected forms and levels of participation of stakeholders in the area of EU immigration policy. First, the citizens can write letters to the Commission in three different categories under its competence: complaints about nonimplementation of EC law, requests for information and documents, and general statements. The significance of this POS for immigration policy and migrant associations is that it presents an opportunity to advance demands in a complex policy field by reacting in a fairly unregulated manner. My interviews revealed that the Commission has not been addressed by Turkish migrant associations directly through this POS. Such apparent lack of deployment of this channel suggests problems with each of the two criteria I put forth for understanding the use (hence suitability) of EU-level POS for supranational claims making. Second, through Green and White Papers, the Commission aims to involve all groups concerned by giving them the opportunity to present their opinions. Accordingly, it identifies the initiatives with wide implications from its annual working program. Those groups that might be interested in shaping the decisions are informed about the initiatives and are expected to participate in consultations. In terms of immigration policy, input into Green and White paper formulations are limited to expert groups rather than migrant associations. The Commission also organizes conferences, hearings, and information seminars as another tool to initiate deliberations for policy projects. One of the examples for a hearing is the Green Paper on a Community Return Policy on Illegal Residents, which has been called in June

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2002 encouraging oral statements and written contributions by nongovernmental organizations along with nation-states and international organizations. My findings confirmed that most of the participants were from expert communities. Among the contributions, ENAR (European Network Against Racism)—mostly focusing on antidiscrimination and racism—served as a conduit for nationally organized migrant associations from Germany since some were its members while none of the Turkish migrant associations from France were directly involved with it. Moreover, my findings suggest that the notification and invitations to meetings were irregular and also lacking follow-up mechanisms. Third, the Commission is viewed to be accessible to activities of interest groups by acting as a transnational forum for migrant associations through their advisory committees, expert groups or ad hoc contacts.21 In the immigration policy field, the social partners, in other words, the ETUC (European Trade Union Confederation), UNICE (Union of Industrial Employers’ Confederations of Europe, current Business Europe), and CEEP (Center of Enterprises with Public Participation and Enterprises of General Economic Interest) are considered as the clear candidates for analysis of stakeholder participation since they were also the first to be addressed in the Communication on the Community Immigration Policy. In addition to the social partners, the EUMF stands out as the significant platform for migrants’ interests. Although UNICE was an active partner to the Commission, UNICE’s sole partner remains to be TÜSIAD (Turkish Industrialists’ and Businessmen Association)—the voice of business interests in Turkey, and not migrants’ businessmen associations’ interests in France and Germany. Second, ETUC, with its mandate for representing workers’ interests within the EU, could have constituted a partner to Turkish migrant associations in their efforts at influencing the Commission in formulating EU immigration policy. None of the migrant associations interviewed, however, seemed to have used ETUC as a strategic partner for accessing the Commission. Although migrant associations in both France and Germany were actively involved with trade unions at the national level, such lack of partnership with the supranational trade union confederation in pursuing EU immigration policy input per se raises questions about the significance of the supranational level. In terms of the EUMF’s role as a prospective bridge for migrant associations in their efforts at influencing EU immigration policy through the Commission, the EUMF as “ambassadors of multiculturalism and diversity” presents itself as another critical access point for migrants. The EUMF itself in the period leading to the Amsterdam Treaty had consistently raised

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concerns about the transparency and clarity of the Commission’s proposals. The EUMF ceased to exist as of mid-2002, resulting in the closing of an institutionalized channel, however problematic, for participation of nationally organized migrants. In the case of the Commission, therefore, the channels available for participation do not meet a threshold of accessibility and transparency, which facilitates participation by nationally organized migrant associations. The Commission itself views the migrants as constituting a complicated group of stakeholders, and it raised concerns with not being able to devise an effective advisory body for this group. The experience with interest articulation at the supranational level through the Commission from 1992 onward points to the lack of use of any channels through the Commission into the EU policy process by migrant associations, save for the limited role of the EUMF in the earlier years. The European Parliament In the context of the legislation concerning EU immigration policy, since the 1999 Tampere European Council, the European Parliament (EP) has been involved in a variety of issues and items involving common immigration policy. Despite its perception among interest groups as an open and inclusive channel into EU policy making, the EP’s role in formulating EU immigration policy has remained limited, though there are various channels to be characterized as the EU-level POS for the migrant associations. First, political rights, particularly voting rights for the EP, are a significant EU-POS for individual migrants with citizenship status. Recognition of voting rights as a significant venue for participation has initiated several proposals to be put forward in order to facilitate access to voting rights through European citizenship, access to which remains through member state citizenship. Among the Members of European Parliament (MEPs) of the fifth term (1999–2004), two MEPs were of Turkish origin and both were elected from Germany (Ozan Ceyhun within the Group of the Party of European Socialists, and Cem Özdemir was in the Green Group). MEPs of Turkish origin have been active members in the Committee on Civil Liberties, Justice, and Home Affairs where the issues concerning immigration policy are mostly discussed. As suggested by the representatives of migrant associations, the MEPs of Turkish origin have been their “single critical access to the EP policy processes” and mainly for migrant associations in Germany. In one newspaper by migrant associations, the EP is portrayed as “the voice of Europe’s conscience” and as gaining prominence in the EU policy process as likely to

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affect “European Turks.” The article also draws the attention of migrant associations to this “evolving” institution.22 Second, two forms of nonjudicial means of redress associated with EU citizenship of the union come to the fore as possible channels of participation. First, with the Treaty on European Union (TEU) the right to petition the legislature has been formally granted to the European citizens, resident nonnationals as individuals or in association with others. However, reports of the EP indicate that most petitions are inadmissible, which indicates substantial problem of accessibility. Evidence supports this finding in that none of the representatives of the migrant associations interviewed have mentioned this form of participation as a mechanism they have used, or even heard of. Second, any physical or legal person (including migrants) has the right to apply to the European Ombudsman. Created by the TEU, and reinforced by the European Charter of Fundamental Rights, the Ombudsman is identified as a mechanism that will improve democratic accountability and transparency in the EU while protecting the citizens in instances of maladministration. An overwhelmingly high proportion (varying between 65 percent in 1996 to 75 percent in 2003) of the complaints are deemed outside the mandate of the Ombudsman, or inadmissible. Since complaints about lack of transparency and accessibility have been consistently voiced in the interviews, the finding that none of the migrant associations resorted to the Ombudsman as a channel indicates that this channel for supranational participation remained indeed remote to stakeholders. Third, committees of the EP occasionally organize hearings or conferences with experts. Such deliberations, however, are not accessible as a supranational POS for migrant associations. Evidence indicates that despite the official discourse addressing the involvement of all stakeholders, these deliberations overwhelmingly favor members of “epistemic communities.” In the case of immigration policy, the main expert group accredited to the EP, for example, is the Migration Policy Group (MPG). Moreover, there are different committees consisting of MEPs that hold meetings concerning immigration issues such as the EP Committee on Citizens’ Freedoms and Rights, Justice, and Home Affairs, the Committee on Legal Affairs and the Internal Market, and the EP Committee on Employment and Social Affairs. These committees arrange “hearings” on an ad hoc basis whose schedule could be obtained from the EP Web site. My interviews indicated that the migrant associations were aware of these hearings but found it extremely difficult to follow them. They also maintained that following these procedures would require the recruitment of a separate staff member assigned for this task, which they lacked and did not have funds for. Another form of consulting stakeholders takes the form of “public conferences” and workshops. There is

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no evidence as to whether stakeholders are consistently admitted or invited. In terms of the hearings, conferences, and the workshops, a closer examination of the rules of procedure suggests that limits on written as well as oral contributions restrict participation in the actual policy process. Therefore, although they appear open and accessible, using hearings and conferences as a POS is fraught with various constraints originating from the problems with the procedures to participate and the lack of staff, resources, and time. Fourth, citizens may contact their MEPs directly to call for EU-wide attention to a policy problem. When addressed personally, MEPs may attempt to amend the EP agenda or formulate a written or oral question to the Commission or the Council. To this extent, stakeholders may influence the agenda of not only the EP but also of the other institutions as well. Second, they may actively participate in the EP’s committees. Empirical evidence indicates that this opportunity to contact has been utilized by nationally organized Turkish migrant associations as they contacted MEPs of Turkish origin. For example, Ozan Ceyhun performed as an active participant for the report on the proposal for a Council Directive on the right to family reunification. The representatives of migrant associations in Germany have indicated that they have established informal networks with Mr. Ceyhun so as to facilitate their understanding of and participation through the EP. None of the associations in France mentioned any formal or informal contact with the MEPs. This overview of various channels of participation through the EP suggests that the EU-level POS via the EP is far from being accessible and transparent. The evidence indicates that voting rights are far from operational; however, there exist substantial attempts on the part of migrant associations to highlight the significance of acquisition of political rights to be able to vote for the EP elections, and there are successful attempts to nominate as well as elect a few MEPs of Turkish origin. Although the numbers are certainly disproportionate to the population of Turks in Europe in general, in France and Germany in particular, these MEPs seem to constitute the most suitable channel in the eyes of the migrant associations at the present time. The activities of collective consultations through conferences and hearings remain to be developed for the initial attempts, indicating that only a limited number of associations do participate, if at all, and the structure of participation, the timing, and the resources available still bring the suitability of this EU-level participatory channel into question. The recourse to nonjudicial remedies is not utilized nor does there exist a substantial awareness of these remedies. Therefore, the EP still needs to develop these channels in order to sustain its image of maintaining close links with nationally organized stakeholders, in this case, migrants.

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European Court of Justice Proceedings before the European Court of Justice (ECJ) constitute an EUlevel POS to the extent that the ECJ operates similar to a typical constitutional court.23 The task of the ECJ is to ensure lawful interpretation and application of the treaty provisions. Moreover, it guarantees that if the decisions or measures of either the member states or the EU institutions do not correspond to EU law, then the decisions of the ECJ oblige them to change their policy and practice. It is possible to cite many examples where actions raised by citizens have had a direct impact on Member States’ and Community policies. Moreover, the doctrine of direct effect and supremacy of EC law empower the individuals for recourse to judicial review, however, there remain some difficulties with respect to the ways in which national judges’ might prefer to proceed with the interpretation of different directives.24 In response to these optimistic suggestions on behalf of the role of the ECJ in enhancing channels into the EU policy process, a closer analysis of how citizens may utilize the ECJ and the extent to which the ECJ contributes to the dimensions of democratic accountability concludes that the ECJ’s role is at best marginal in terms of remedying the democratic deficit.25 The scholarly claim is that “the length, costs and risks of direct action” impede individuals from resorting to the ECJ except for big business groups and powerful lobby groups.26 In terms of immigration policy, the ECJ’s role has evolved and expanded from the TEU onward. In the case of migrants of Turkish origin and their associations, the role of the ECJ takes a slightly different turn. The court has acted to a certain extent as interpreting the decisions of the Association Council established by the Association Agreement between Turkey and the EC, and it has supremacy over national law in accordance with Articles 228 and 238 of the Treaty of Rome. The ECJ stated that “those provisions [arising from the Association Agreement] merely clarify the obligations of Member States to take such administrative provisions, without empowering the Member States to make conditional or restrict the application of the precise unconditional rights which the decision grants Turkish workers.”27 Among the core members of the migrant associations such as that of Türkische Gemeinde in Deutschland (TGD) were lawyers; however, they have not indicated the use of ECJ as a resort for their members. Similarly, none of the associations in France have mentioned using the ECJ for rights expansion. Accordingly, the limits of ECJ as an EU-level POS are twofold. First, the process of litigation requires specialization, is costly, and takes time. These resources are scarce in the case of migrant associations. Although Article 76 of the Rules of Procedure of the Court provides for legal aid allowing for the

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application of any time albeit with a limited budget, none of the migrant associations resort to such means. Second, the jurisdiction of the court in the field of immigration policy is subject to limitations that make the court an unsuitable venue for seeking judicial remedy for enhancing effective and democratic governance in this field. Therefore, the ECJ, too, fails to act as a fairly accessible and transparent EU-POS for immigrant participation through national associations. This is not to de-emphasize the role of the ECJ in the expansion of rights for legal resident migrants in general or Turkish nationals in particular. To the contrary, the ECJ is most progressive in interpreting the EU law to the advantage of Turkish nationals, especially within the framework of the EC-Turkey Association Agreement. Comparing Collective Action Problems of Turkish Migrant Associations in France and Germany A review of the brief history of the associational activity of Turkish migrants in France and Germany reveals that Turkish migrants have established hundreds or even thousands of associations with varying aims and structures. For this study, I have selected those associations that have among their objectives the explicit goal of participation at the EU level. Therefore, in this section I review the proposition provided by the literature on collective action and assess how these propositions fare in migrants’ supranational participation. Heterogeneity of Group Overshadows Power of Numbers According to recent statistics, around two hundred thousand people of Turkish origin live and work in France, and they have founded around four hundred immigrant associations based on estimates provided by their representatives. As far as strategic incentives are concerned, what brought together Turkish immigrant associations in France around Conseil Français des Associations d’Immigrés de Turquie (CFAIT), Associations Travailleur de Turquie (ATT), and A Ta Turquie is the perceived weakness, if not absence, of dialogue among associations. Despite forming confederations, various factors such as “human nature,” “lack of communication,” and heterogeneity of the migrant population are seen as major impediments to collective action at the national as well as at the supranational level.28 Therefore, the power of numbers is undermined both by irreconcilable intragroup ideological differences dating back to associational and immigration history, and by lack of coordination and exchange of information within the group as a whole. As a result, for example, the major federative structure in France for Turkish migrants, CFAIT, is criticized for not having realized its goals of unity and representation. Such challenges are magnified especially at the supranational

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level since finding a goal oriented lowest common denominator at the EU level was even more difficult. Exact numbers of Turkish migrant associations in Germany are difficult to verify as well although my research shows that there exist more than a thousand with membership ranging from three to hundreds of people, with a scope from hometown associations to sports clubs to advocacy organizations. The rationale provided for the formation of a Turkish Community in Germany (TGD) was the absence of an “effective and respectable” representative organization for two million migrants in Germany.29 It has been repeatedly emphasized that “the most important aspect is to be strong. In order to do so, unification is inevitable. What is needed is few and strong associations and not many associations.”30 In terms of strategic incentives, immigrant associations in Germany seem to have united in the form of federations for mainly two reasons. First, migrant groups have come to realize that there was a need for taking care of their own problems especially in the absence of an entity attending to “migrant problems.” Second, these groups perceived the need to “overcome internal differences” that had hindered previous efforts at organizing, mobilizing, and “acting on behalf of migrants by migrants.” In addition to protracted internal political fragmentation that characterizes the composition of associations, the prevailing mindset of “owning a small association rather than being assimilated into a larger one” surfaces as an impediment for collaborating under an umbrella organization. Moreover, for example, the frequent turnover in terms of the executive within associations has caused a lack of expertise and sustained relations especially with the German authorities. Additionally, the success and participation of the associations were seen as occurring in their incipient stages because of financial and personnel problems. A challenge similar to the French case was noted as serious problems concerning the relations with the grassroots. Another challenge was stated as that until the umbrella organizations have been set, most associations would limit scope and form of participation to the local problems or just exist for socialization purposes, and not be interested in immigration policy issues unless it immediately affected them. Therefore in the German context the mere larger numbers of Turkish population—almost eight times that in France—did not necessarily translate into an immediate and consistent federative structure and or collective organization encouraging supranational participation. Policy-Oriented Incentives: Too Complex To Handle In terms of the nature of EU immigration policy area and its implications for collective action, my findings reveal that the immigrant associations in both France and Germany are divided in terms of purpose and ways in which they

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need to mobilize. Some representatives of migrant associations have suggested that various groups, hinting at mostly the mosque associations, refrained from even recognizing a “question of immigration” for themselves in France since their perception of problems experienced by immigrants in France was limited to whether they were able to perform their religious practices without any intervention by state authorities.31 Moreover, representatives of all associations, especially CFAIT, have noted that all migrant groups find it daunting to initiate and engage in collective action on any topic related to immigration policy. One of the most significant instances has been experienced in early 2000s with the j’y vis donc j’y vote (I live there, therefore I vote there) campaign when migrant groups engaged in collective action for granting of political rights to non-EU nationals in France. Alternatively, on topics such as family reunification, the Turkish migrant associations have not been able to organize any effective collective action for the national or the EU level. One representative suggested that lack of professionalization on immigration matters with experts within the association impeded their efforts to participate at the supranational level. Alternatively, ELELE has produced an information guide in Turkish and French on family reunification in France as depicted by the French constitution, funded partly by DPM and Ministre de l’Aménagement du Territoire de la Ville et de L’Intégration (French Ministry of Country and City Planning and Integration). Accordingly, the migrants’ activities were confined to the national- or the city-level consultative mechanisms, limiting their horizon of activity in terms of a central item in immigration policy, that is, family reunification. In the case of Germany, some migrant associations have suggested that they have engaged in European-level activities since their inception in 1989 whereby they have been able to secure funding from the Commission for various projects addressing the youth, education, and antidiscrimination. Föderation Türkischer Elternvereine Deutschland (FöTED) also cited that they did participate in the projects at the EU level, and actively in EUMF along with Föderation der Volksvereine Türkischer Sozialdemokratene. In contrast to the French context, in Germany a research center founded and run by Turks, the ZfT (Zentrum fur Turkeistudien [Center for Turkish Studies]), has various research activities, reports, and initiatives that are aimed at influencing the direction of policy in Germany and also engaging in activities at the European level. The problem, similar to the French context, persists referring to the issue of the perception of a certain level of weakness in terms of the capacity of associations to realize policy goals. Several executives have stated that Germany remains a “closed box” for the Turks and that Europe remains

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outside the Turkish immigrants’ perception of levels to utilize for participation. Nevertheless the associational leaders displayed the perception that the problems of Turks in Europe would be solved with Turkey in the EU, and not before that. Along these lines, a group of elites founded BATI (the Initiative of European Turks in Berlin) in 2003. Though not as explicitly as they would have liked, the suggestion was that even if not directly, the goal was also to signal that the Turkish community might unite around a common objective. In the German case, most representatives have cited the local and the Länder level as being the most proximate and pertinent for their needs. They have identified the Arbeiterwohlfahrt (AWO) or CARITAS as helpful in service provision. Moreover, the intercultural councils have been seen as useful although limited. They have been referred to as “only for consultation and not for real participation,” or as “token” participatory efforts. Moreover, except for providing informative brochures, the efforts for immigration policy advocacy at the European level, including the area of family reunification, remained almost nonexistent. Despite this negative attitude with respect to European-level activity, the leader of FÖTED stated, “The Turkish minority is much better organized than the other immigrants in Germany. However, at the same time, none other is as fragmented as the Turkish community. The sheer numbers of organizations reach thousands, however, when it comes to collective action, there are serious ideological divisions.”32 The most successful campaign, the one around dual citizenship that brought TGD on the agenda of German and Turkish politics, nonetheless has not transposed to the EU level. Material Incentives: Funding Does Not Suffice for Mobilization The European level becomes most relevant in the aftermath of the TEU as a prospective funding source. According to unofficial statistics on forty-six nationally organized associations examined in late 1998, the major source of funding for the associations was membership dues, second was Fonds d’action sociale (FAS). The financial contributions of the governorships and the embassies followed. Most of the associations, although aware of some sources of public funding, found it very challenging to participate for the national level. Similar assessments have been made for EU-level funding and how it is provided. Even substantial sums of bids do not render the EU level as an attractive source for many of the organizations. Although some of them seem to have used them for various infrastructure activities, and continue to engage in European wide network activities with European-level funding, they still expressed challenges with respect to finding partners in other countries or logging into networks. Additional skepticism of the EU level resonated in

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remarks with respect to how the projects were being distributed. The themes for which immigrants apply also relate at best to integration projects and not necessarily projects on enhancing decision making for participation by stakeholders in EU immigration policy items. As an incentive to rally around CFAIT and Association de Travailleur de Turquie en France (ATTF [l’ACORT since 2002]), “resource saving and sharing” has been emphasized as one of the major reasons. However, such a prospect does not necessarily qualify as facilitating European-level collaboration nor does it signal a sustainable material incentive for national-level collective action. Finding building facilities did not seem to constitute an issue for any of the organizations, as most of them had their own space and staff for their activities and meetings. Some were puzzled more by the fact that they owned infrastructure such as offices; however, they were still unable to engage effectively in collective action. Almost none complained vehemently about financial resources and suggested FAS as being significant for their continuity as associations, while some raised their concerns, and even the most conventional means of attracting groups, in other words, the offering of funds, did not seem to magnify the EU level as a suitable sponsor or partner. Various reasons have been put forth regarding the attempts to unify the associations in Germany, and among the reasons were “pooling resources and power” and “forming a strong lobby.” The representatives also referred to sharing resources or staff as major reasons for their collaboration. All the associations had their own building facilities with meeting rooms, auditoriums, staff offices, and computer equipment. However, the funding issues have come to the fore regularly as membership dues or support from the government agencies were limited for the scale of the operations that the associations aimed to pursue. A creative solution in 2000 formed a for-profit organization to generate income for the association that would be titled TurkCOM Communication in Europa in collaboration with the company ALOVATAN. Moreover, they would increase project-funding applications with the Federal Ministry for the Family, Youth, and Seniors as well as the EU bids, and various foundations such as the Konrad-Adenauer or the Friedrich Ebert Stiftung. All the material incentives concerning positive effects of being able to reap financial benefits from the EU-level activities have not translated as a sufficiently persuasive incentives for the associations to unite and apply for funding. Collaboration with Other Groups at the EU Level In terms of the relationship between possible partners and collaboration, it is hypothesized that the associations might participate in the policy process

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through collaboration with other groups that pursue similar interests. At the national level, there is, albeit not extensive, evidence that smaller Turkish migrant associations found it beneficial to join national-level umbrella organizations. However, none of representatives of associations suggested that joining EU-level trade union federations, for example, ETUC, or employee associations’ federations, for example UNICE, was advantageous for their supranational-level policy advocacy. The main concern for these associations was lack of any EU-level network on migration that was accessible and clear for them. One organization, ELELE, was more visible in most Europeanlevel cooperation efforts and participatory arrangements, including the EUMF. Membership to the former EUMF would qualify as one evident attempt to become an active participant in the EU policy process. Turkish migrants in France were represented in the EUMF through six member associations: ATTF, Conseil de la Jeunnesse Pluriculturelle (COJEP), CFAIT, Fédération des Associations Turques (FAT), Horizon Turcs (HT), and ELELE. As for one other federation, which considered the EU level as less than useful, the EUMF was problematic since its inception. However, membership to the EUMF does not seem to have been substantiated by any form of sustained activity at this level. Moreover, some representatives did not even mention EUMF until they were specifically asked whether they would be able to think of an EU-level association or institution “by migrants and for migrants.” Most had also suggested that the EUMF was bound to have problems, as the structure and the flow of information throughout was problematic after a few years. The EUMF, though, began its EU-level efforts with a clear objective of influencing immigration policy. The goals concerning the involvement of national-level organizations is stated as aiming to secure support from grassroots associations and promoting participatory democracy. However, the farreaching objectives seem to have evaporated before they reached the local addressees of the messages. One representative even suggested that they were not informed or invited to EUMF; this was interpreted as a sign that the very organization that was for migrants was itself being exclusive in the first place. The associations had found the founding of EUMF as a constructive gesture and suggested that they would indeed take this effort seriously. However, their trust in EUMF was already shaken by that time. Decisions such as enforcing transparency in the political and administrative management of the forum, emphasis on elected bodies, and the curbing of activities due to crises generated in the organization vis-à-vis certain member associations indicate the initial signs of problems. Other possible strategic partners—such as ETUC, MPG, ECAS, UNICE, or Social Platform for NGOs—have also not been used or mentioned as EU-level partners for prospective cooperation or

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sources of information. However, two trends have been visible when the interviewees have expressed their views on partners. First, they emphasized the importance of collaboration with other associations of migrants of Turkish origin in France. Second, they have emphasized the significance of and attempts to collaborate with Turkish migrant associations in other European countries and North America. Although in the German case, one interviewee had suggested that because the language used by most migrants in the EUMF and EU institutions was French, they had felt that the Turkish migrant associations in France had better access to and were more actively involved at the EU level. However, none of the interviewees addressed this as an advantage nor suggested any observation to this effect for EU-level participation. In Germany, in terms of the relationship between possible partners and collaboration, it is hypothesized that they have an opportunity to participate in the policy process through collaboration with other groups that pursue similar interests. Therefore, smaller national-level organizations of Turkish migrants preferred to join national-level organizations. Moreover, the umbrella organizations themselves have promoted the founding of branches in various länder. However, these associations did not demonstrate that the relations with the local, länder, and federal level facilitated their supranational-level participation. Smaller associations have always referred to the umbrella association as being their main intermediary organization with EUlevel activities. In the interviews, both HDF and FÖTED referred to the EUMF, yet neither cited it as an effective body. These associations did not mention the audit procedures for the EUMF, unlike in France. The HDF representative suggested that the administration of the EUMF was completely unprofessional, and the flow of information was very sporadic as was also observed by the FÖTED representative. Most of the other associations had heard of EUMF; however the consensus was that the EUMF did not constitute a valid and effective platform. Some association representatives also found it exclusive similar to observations made in France. Most associations have mentioned the importance of collaboration with other Turkish migrant associations in Germany, and also other European countries. Most associations, except for HDF, seemed to have only sporadically been in contact with the Turkish migrant associations across borders. Similar to the French case, the importance of collaboration with other Turkish migrant associations in other European countries came to the forefront. Moreover, associations from France were thought to be using the Brussels institutions more frequently. All associations have identified the Turkish government as a strategic partner for realizing their objectives, and some insisted on the foundation of a “Ministry for Turks Abroad” in Turkey, with substantially more policy-making powers than an advisory council. The

Immigrants and Participation beyond the Nation-State 275

perception among the migrant associations in Germany as in France with respect to partners at the national and the supranational level could be summarized as cautious and skeptical. Conclusions This chapter highlighted the problems intrinsic to the various EU-POS in terms of assessing the participation of nationally organized Turkish migrant groups. It constituted a discussion of the macro-level explanatory variables and micro-level variables for understanding forms and levels of participation by stakeholders. Overall the conclusion is that despite channels available for participation in principle, at closer examination, the institutional structure itself is problematic for facilitating engagement by nationally organized stakeholders. Each institution, and in turn, each channel within the institution, presents different constraints with respect to accessibility and transparency. However, this review only explains part of the puzzle about forms and levels of participation by affected stakeholders. Part of the supranational opportunity/national capability rift, therefore, is caused by the characteristics of the EU-level POS, and the ways in which they define actions of nationally organized stakeholders. My findings with respect to the case of Turkish migrant associations in France suggest several conclusions in terms of their implications for supranational participation. The federations or umbrella organizations seemingly have glazed over the differences that were fundamental and unavoidable during the past thirty-five years of associational activity of Turkish migrants in France. As far as the incentive structures and objectives are concerned, the associations seem to have realized the power of numbers for claims-making, and this is why they have come together forming federations in the 1990s. However, whether they have been able to go beyond gathering under one roof organization is questionable. The associations seem to have used the federations for access to information on immigration policy matters. The nature of their activities seems to confirm the elitist nature of supranational participation as it was the elite of these groups, and not the grass roots, that have been active at the EU level. The existence of the possibility of collaboration with EU-level NGOs did not necessarily imply that the associations perceived them as strategic partners for policy collaboration. Their limited collaboration with the EUMF seemed to have discouraged them about the EU level rather than closing the gap. The complexity of the EU immigration policy domain seemed to have initially motivated them to engage in collective action, however, they have cited limited resources and difficulty with having access to pertinent information regarding items on the policy agenda and how to address them. Moreover, their experience at the national and

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subnational levels seemed to have reinforced their belief in the relevance and centrality of these levels rather than the EU level. The findings in the case of Turkish migrant associations in France suggest various conclusions with respect to the impact of collective action problems. The federations and umbrella organizations were formed with great expectations for collaborative effort. The associations were very aware of the power of numbers, and they united due to this reason. The collaboration effort has not been a smooth one, nonetheless. The most significant difference is that the organizations are present in parallel patterns in each länder and local level. They collaborate with similar institutions in the länder. In contrast to the French case, they have a consistent and grand claim to become a part of the political establishment through membership in municipal councils, political parties, or becoming members of parliament. The transnational level seems less relevant in comparison to the associations in France. They seem to have collaborated with the EUMF, although in a very limited form, and they found it very problematic for transnational collaboration or enhancing trust. They do not perceive the immigration policy area as accessible except for their informal relations with the MEPs. Consequently, supranational efforts to enhance inclusiveness so as to engage novel policy actors is fraught with problems and fairly far from the cries of new forms of democratic governance that the EU promises to design and implement. Notes 1. Hooghe, L., and G. Marks. 1996. “Contending models of governance in the EU.” In Europe’s Ambiguous Unity, ed. A. Cafruny and C. Lankowski. Boulder, CO: Lynne Rienner. 2. Christiansen, T. 1997. “Reconstructing European Space: From territorial Politics to multilevel Governance.” In Reflective Approaches to European Governance, ed. K. E. Jørgensen. Basingstoke, UK: Macmillan. 3. Eberlein, B., and D. Kerwer. 2002. “Theorising the New Modes of European Union Governance.” European Integration online Papers, (EIoP) 6 (5). http:// eiop.or.at/eiop/ texte/2002-005a.htm. 4. Risse, T., M. Green Cowles, and J. Caporaso. 2001. “Europeanisation and Domestic Change: Introduction.” In Transforming Europe: Europeanization and Domestic Change, ed. M. Green Cowles, J. Caporaso and T. Risse. Ithaca, NY: Cornell University Press; Héritier, A. et al. 2001. Differential Europe—New Opportunities and Restrictions for Policy Making in Member States. Lanham, MD: Rowman and Littlefield. 5. Jachtenfuchs, M., and B. Kohler-Koch. 2004. “Governance and Institutional Development.” In European Integration Theory, ed. T. Diez and A. Wiener. Oxford: Oxford University Press, 104.

Immigrants and Participation beyond the Nation-State 277 6. Mazey, S. 1998. “The European Union and Women’s Rights: From Europeanization of National Agendas to the Nationalization of a European Agenda.” Journal of European Public Policy 5 (1): 131–52; Guiraudon, V. 2001. “Weak Weapons of the Weak? Mobilizing around Migration at the EU-level.” In Contentious Europeans: Protest and Politics in an Emerging Polity, ed. S. Tarrow and D. McAdam. New York: Rowman and Littlefield, 163–83; Favell, A., and A. Geddes. 2000. “Immigration and European integration: New opportunities for transnational political mobilisation?” In Challenging Ethnic Relations Politics in Europe: Comparative and Transnational Perspectives, ed. R. Koopmans and P. Statham. Oxford: Oxford University Press. 7. Marks, G., and D. McAdam. 1996. “Social Movements and the Changing Structure of Political Opportunities in the EU.” West European Politics 19 (2): 249–78. 8. Keck, M. E., and K. Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press. 9. See among others, Smith, J. 1998. “Global Civil Society? Transnational Social Movement Organizations and Social Capital.” American Behavioral Scientist 42 (1): 93–107; Della Porta, D., H. Kriesi, and D. Rucht. 1999. Social Movements in a Globalizing World. New York: St. Martin’s; Passy, F. 1999. “Supranational political opportunities as a channel of globalization of political conflicts. The case of the rights of indigenous peoples.” In Social Movements in a globalizing world, ed. D. della Porta, H. Kriesi, and D. Rucht. New York: St. Martin’s, 148–69. 10. Nentwich, M. 1998. “Opportunity Structures for Citizens’ Participation: The Case of the European Union.” In Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship, ed. M. Nentwich and A.Weale. London: Routledge. 11. R. Miles and D. Thränhardt (eds) (1995), Migration and European Integration: The Dynamics of Inclusion and Exclusion, London: Pinter. 12. Favell A. 1998. Philosophies of Integration: Immigration and the Idea of Citizenship in Britain and France. London: Macmillan. 13. Blom, A. 1999. “Is there such a thing as transnational belonging.” In The Politics of Belonging: Migrants and Minorities in Contemporary Europe, ed. A. Geddes and A. Favell. Aldershot, UK: Ashgate. 14. Amiraux, V. 1998. “Transnationalism as a Resource for Turkish Islamic Associations in Germany.” Seminar Paper MIG/25. Florence: Europan University Institute; ögelman, N. 2003. Transnational Politics: Turks and Kurds in Germany. London: Routledge. 15. Martiniello, M. 1995. Migration, Citizenship and Ethno-national Identities in the European Union. Aldershot, UK: Avebury; Kastoryano, R. 1998. Quelle identité pour l’Europe? Le multiculturalisme à l’épreuve. Paris: Presses de Sciences Po. 16. Ireland, P. 2000. “Reaping What They Sow: Institutions and Immigrant Political Participation in Western Europe.” In Challenging Immigration and Ethnic Relations Politics, ed. R. Koopmans and R. Statham. Oxford: Oxford University Press, 233–82; Soysal, Y. 1994. Limits of Citizenship: Migrants and post-national

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17.

18.

19.

20.

21. 22. 23. 24. 25. 26. 27.

28. 29. 30. 31. 32.

membership in Europe. Chicago: University of Chicago Press; Freeman, G. 1995. “Modes of Immigration Politics in Liberal Democratic States.” International Migration Review 29 (112): 881–902; Guiraudon, V. 1997. “Policy Change Behind Gilded Doors: Explaining the Evolution of Aliens’ Rights in Contemporary Western Europe.” PhD thesis, Cambridge, MA: Harvard University; Joppke C. 1998. Challenge to the Nation-state, Immigration in Western Europe and the United States. Oxford: Oxford University Press. Favell, A., and A. Geddes. 2000. “Immigration and European integration: New opportunities for transnational political mobilisation?” In Challenging Ethnic Relations Politics in Europe: Comparative and Transnational Perspectives, ed. R. Koopmans and P. Statham. Oxford: Oxford University Press. Marks, G., and D. McAdam. 1996. “Social Movements and the changing structure of political opportunity in the European Union.” In Governance in the European Union, ed. G. Marks, F. Scharpf, P. Schmitter, and W. Streeck. London: Sage, 95–120; Deckmyn, V. 2002. Increasing Transparency in the European Union. Maastricht, Netherlands: European Institute of Public Administration. Geddes, A., and Guiraudon, V. 2004. “Britain, France, and EU AntiDiscrimination Policy: The Emergence of an EU Policy Paradigm,” West European Politics 27 (2): 334–53. Loomis, B. A. 1986. “Coalitions of Interest: Building Bridges in Balkanized State.” In Interest Group Politics, ed. A. J. Cigler and B. A. Loomis. 4th ed. Washington, D.C.: Congressional Quarterly Press, 268. Nentwich M. 1998. “Opportunity Structures for Citizens’ Participation: The Case of the European Union.” In Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship, ed. M. Nentwich and A.Weale. London: Routledge. Greenwood, J., and M. Aspinwall. 1998. Collective Action in the European Union. Routledge: New York. Anadolu, September–October, 1998, no. 10. Costa, O. 2003. “The European Court of Justice and democratic control in the European Union.” Journal of European Public Policy 10 (5): 740–61. Mattli and Slaughter 1998; Guiraudon 2003. Costa, O. 2003. “The European Court of Justice and democratic control in the European Union.” Journal of European Public Policy 10 (5): 740–61. Ibid., 748. Guild, E. 1998. “Competence, discretion and third country nationals: The European Union’s legal struggle with migration.” Journal of Ethnic and Migration Studies 24 (4): 613–25. Gözlem/l’Observateur 1998. Ruhr Postası, January 11, 1995. Hürriyet, March 12, 1995. Gözlem/Observateur, no. 10. Interview with Dr. Ertekin Ozcan, FÖTED leader.

CONCLUSION

Crossing Borders of States and Border-Crossing of Rights Saime Ozcurumez

O

nce the most intriguing scholarly question in the field of political science was: what is the state? The usual answer would begin by referring to territory, borders, sovereignty, and a nation. In time the inquiry became more complex, leading to questions along the lines of: What challenges the state? How does it do so, and why? One of the responses to these questions relates to the consequences of the increasing mobility of people crossing the borders of states—both literally and metaphorically. These consequences include but are not limited to people’s access to rights and status as border-crossing noncitizens. The central normative and empirical query of this volume is in this contested domain. On the one hand, the contemporary Western nation-state preserves legally its sovereign right to determine who has the right to cross its borders as well as to exercise the political, social, and economic rights within its borders. On the other hand, rising levels of migration and increasing numbers and diversity of noncitizens within the borders of the nation-state challenge the extent to which the state may strike a balance between providing liberal, universally applicable rights and preserving its inherently distinctive identity and sovereignty. This volume is about paradoxes and limits. The central paradox addressed by all the authors is that of promoting universal human rights while at the same time maintaining the nation-state’s sovereignty and self-determination over decisions concerning the acquisition of citizenship and access to rights within its territory. All the contributions in this volume address the limits of the different concepts and processes put to test by this paradox. The contributions differ, albeit with nuances, in their disciplinary references along

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legal (Webber, Galloway), social-political (Schmidtke, Koopmans et al., Kastoryano, Gerdes and Faist, Geddes, Kruse, Böcker and Thränhardt, and Ozcurumez), and theoretical/normative (Carens) lines. The findings of each chapter, however, confirm the centrality and significance of the nation-state across all European and North American cases studied in this volume for all processes and actors involved in governing migration, integration, and citizenship. On Paradoxes: Nation-States and Universal Rights In all three parts, the contributors tackle the question of whether (and if so, to what extent) the nation-state has let go its exclusive reign over rights regarding crossing its borders in general and the border-crossing rights of noncitizens in particular. A central issue of consensus among all contributors is that the nation-state is alive and well with respect to defending, sustaining, and expanding its own interpretation of inclusion and exclusion. The chapters in the first part, “The Normative Debate on the ‘Liberal Paradox’: Of States, Rights, and Social Closure,” focus on the theoretical debates on borders, territoriality, and rights of noncitizens. Informed by political theory, Carens contests the idea that immigration per se engenders a “liberal paradox”—a tension between “the ideal of universal human rights and the ideal of democratic self-determination.” He suggests that such a paradox is similar to the “democratic paradox” on legitimacy, which is certainly not alien to any democratic polity that aims to balance the will of the people and independent standards of morality. Carens concludes, however, that increased levels of immigration present us with different dimensions of this paradox in relation to rights concerning membership to the polity. In a similar vein, Galloway, Webber, and Schmidtke address the normative overtones of this paradox with diverse empirical references. Galloway examines the domestic legal decision-making process, mainly the role of the courts, to analyze evidence from the justice system in addressing disputes over the rights and status of noncitizens. He shows that courts exercise differentiated treatment toward noncitizens in upholding the rule of law in the name of the nation-state. Webber supports these claims through his research on the treatment of asylum seekers in Australia. The main policy actor in Webber’s case is the executive authority that uses both the post–September 11 discourse of securitization and the rule of law to solidify the primacy of national sovereignty in the domain of asylum policy. Likewise, Schmidtke analyzes the elite and media discourses during the 1990s and 2000s in Germany to investigate the role of the borders in determining the parameters of social inclusion and exclusion in debates over the latest changes in citizenship law in

Conclusion 281

Germany. He also concludes that borders are becoming even more relevant in terms of defining states’ territory and of delineating limits of belonging to a community. The contributions under the second part, “Limits of Governing Migration and Citizenship,” affirm the centrality of the nation-state mainly by focusing on the domestic transformation of citizenship and immigration regimes through an examination of a wide array of actors and debates. Geddes and Faist trace the episodes of reform initiatives and their subsequent content in German citizenship law to also conclude that, though the terms have changed to a debate between “liberal democrats and statist communitarians,” the nation-state is alive and well as it is reflected in all parliamentary debates and official documents. Kruse concurs with a detailed analysis of the debates on the transformation of German immigration law that the debate in Germany remains one about the German national identity and nation-state among political parties across the political spectrum. From another standpoint, Böcker and Thränhardt compare Dutch and German naturalization and citizenship regimes to conclude that, notwithstanding differences with respect to policies about and consequences of naturalization in these countries, these cases resemble each other closely in terms of highlighting national identity and belonging for integration. Kastoryano observes a variety of discourses of “transnational nationalism” voiced by groups to raise demands and to mobilize in Western nation-states. She claims that diaspora groups affirm their cohesion only by reference to distinctiveness of the identity of their country of origin. Hence, while it transcends the borders of one nation-state while it raises demands for an expansion of rights, such transnationalism reaffirms the imagined borders of another. The chapters in the third part, “Toward a Postnational Constellation? Politics and Policy Formation in Europe,” examine the relative significance of the European and national-level policy regimes, debates, and actors. Geddes is intrigued by the “bounded space” created and re-created in the European Union in relation to borders, territory, territoriality, and international immigration. His conclusion after studying the European migration regime is that the emerging regime is “profoundly territorial” with respect to its organizational and institutional dynamics. Koopmans et al. examine the postnational, transnational, and supranational claims on immigration and integration from a cross-national comparative perspective for the period from the 1990s to the early 2000s. They conclude that while the “postnational” and “supranational” levels become increasingly relevant for immigration policy and politics, the national level still remains the central locus for integration policy. Ozcurumez analyzes the relevance of openings at the European level by focusing on nationally organized collective action by immigrants in France and

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Germany as they aim to participate in European-level policy process. She concludes that the national level remains central for participation strategies of main stakeholders in an emerging European immigration regime for immigration-related claims. The general findings of this volume point to mounting evidence for the nation-state’s almost exclusive hold on sovereingty in an environment of regional and global pressures for expansion of rights of noncitizens while governing migration. On Limits of Citizenship Regimes, Equality, and Supranational Participation The contributions recapitulate how the nation-state remains relevant and perhaps even central in determining, drawing, and preserving its own boundaries of territory and belonging along three dimensions: citizenship regimes, equality of rights, and levels for policy process. First, in terms of limits of citizenship regimes, all contributions, to one degree or another, agree that citizenship regimes undergo a historic transformation mainly with respect to acquisition of citizenship increasingly through the territorially based ius soli rather than the blood-based ius sanguinis. However, nation-states do restrict the potential expansionary implications of such change by facilitating acquisition of citizenship—although generally through constraining dual citizenship or introducing challenging integration schemes. By doing so, states assert their control over membership rules and access to rights. Moreover, any international-level institutional arrangement for transnational membership is at best in its incipient stages. The underdeveloped nature of these arrangements only reinforces the nation-state’s grasp and affirms the lack of any credible alternative to the nation-state’s centrality in governing migration and creating and sustaining membership to a polity. Second, in terms of the limits of equality across citizens and noncitizens, all contributions suggest that nation-states struggle with the idea of granting political, social, and economic rights to noncitizens against a background of protracted opposition against immigration. The nation-state, according to these authors, still upholds the prerequisites of national democracy and the contours of its welfare state confined mainly to its citizens. At the same time, in the face of nationalistic mobilization of citizens voicing security concerns, the nation-state continues to take action in constraining the rights of noncitizens. Accordingly, applying the principle of equality of rights for all residents in a community remains at the discretion of the states. Third, in terms of the limits of levels of policy process, most contributions support the argument that Europeanization of immigration regimes does

Conclusion 283

matter for European cases with respect to moving the debates and actors beyond the nation-state. At the same time, they endorse the view that the European level is neither the most noteworthy catalyst behind transformation of citizenship and immigration regimes nor the most pertinent level for policy process as of yet. Therefore, the conclusion remains that as states engage in determining the boundaries of rights, the parameters of social closure rest within their own mainly domestic realm of power while they are continuously contested by regional as well as global dynamics. Before the End The increasing mobility of people for business, family, economic, political, social, and a multitude of other reasons is an incontestable reality. The modern nation-state faces a strategic, moral, and political dilemma when encountering rights of noncitizens: whether to uphold the fundamental principles of liberal democracy so as to protect individuals’ rights and ensure equality, or to preserve its territorial and national unity, security, and economic competitiveness. The contributions to this volume individually and collectively challenge the commonplace assertion that governing migration becomes global as transnational cooperation proceeds. On the contrary, the contributors insist on the centrality of the nation-state vis-à-vis a major challenge to its centuries-old reign over self-determination and territoriality: granting rights and membership to noncitizens. The volume raises deeper questions for further research on how attemps at resolving the paradox unfold and proliferate, and how the challenges to testing the boundaries of states, rights, and social closure remain ever more contested across time and space.

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Index 9/11. See September 11 acculturation, 4 active citizen, 127 Adenauer, Konrad, 272 alienage. See aliens aliens, illegal and legal, 36, 43, 47–48, 52, 56, 57, 65, 68, 93, 96, 104–7, 130, 168, 240, 249 Amnesty International, 233–34, 237, 245 Amsterdam Treaty, 212–13, 263 Anderson, Benedict, 181–82 antidiscrimination legislation, 212, 214–15, 263, 270 antiracism, 240, 241, 243, 247, 260 anti-Semitic, 85, 122, 243 anti-Semitism. See anti-Semitic Arbeiterwohlfahrt (AWO), 271 Arendt, Hannah, 3, 25 Aristotle, 20–21 Armenia, 184, 185, 187 Armenians. See Armenia assimilation, 166, 172, 183, 190; institutional, 193 Association Agreement between Turkey and the EC, 267–68 asylum, 10, 64, 103, 142, 205, 206, 208, 211–13, 216, 217; application, 165; crisis, 8; law, 120, 159, 173, 236; policy, 205, 207, 211–12, 218, 239, 248; procedure, 159, 161, 165, 247; rights, 140; seekers, 51, 61–65, 67, 69–71, 73, 76, 79, 101, 103, 127, 129, 159, 160–61, 165, 217, 218, 226, 231–32, 235, 248

Australia, 61, 63, 64, 65, 67, 69, 71, 72, 77, 80, 136, 208, 232 Austria, 114, 138, 215 authority, 10, 46, 191; administrative, 10; executive, 8, 62, 64–66, 70–71, 81, 280; legal, 45; moral, 47; political, 5, 209 Balkans, 218 Bavarian Christian Social Union (CSU), 118, 120–21, 162–64, 167 Belgium, 242 Bismarck, Otto von, 136 border, 40, 51, 100, 101, 185, 197, 207, 208, 216, 281; conceptual, 17, 107, 210, 211, 214, 217–18; controls, 2, 130, 206, 226, 241, 243; crossing, 129, 130, 279–80; national, 1, 37, 91–93, 95, 97, 99, 102, 103, 105–6, 126, 180, 182, 196, 206, 240; organizational, 210, 217; soft, 152, 210 Bosnia, 233, 242 Bosnians, 145, 159, 201 boundary, 18, 95, 105, 204, 210, 283; citizenship, 115, 125; construction, 94; national, 11, 104; political, 8, 17, 179; removal, 207, 211, 213–14, 216; shift, 207–8, 211, 213, 218; symbolic, 92, 106, 107 Britain, 11, 52, 113, 127, 136, 229, 234–37, 239, 241 Brubaker, Rogers, 3, 115, 141, 168 Bundesrat, 118, 120 Bundestag, 118, 120

304 Index Canada, 30, 34, 43, 51–52, 54, 55, 136, 138–39, 152, 174, 190; Charter of Rights and Freedoms, 52; Supreme Court of, 47, 52, 53 Christian Democratic Union (CDU), 102, 116, 118, 120–21, 123, 138, 141, 159, 162, 163, 165 citizenship, 3–5, 7, 11, 17–20, 22–28, 38, 41, 44–46, 51, 53, 68, 93, 95, 101, 119, 122–24, 126–31, 143–44, 146, 148–52, 168, 188, 191, 225–29, 233–34, 236, 245–46, 252, 260; dual, 9, 23, 24, 102–3, 113, 115, 117, 120–21, 123–25, 135–40, 142, 159, 189, 192, 271; law, 40, 95–96, 102, 104, 116–17, 119–21, 123, 157, 175, 189; multiple, 3, 9, 136–37, 141–42, 144–47, 149–50; policies, 5; regimes, 3–5, 8, 91, 93–95, 99, 104–6, 228 civil society, 28, 32, 116, 118–19, 124–25, 127, 228, 234, 243–45, 250, 252 collective memory, 103, 189 Commonwealth of Independent States (CIS), 136 communitarians, 123, 281 community, 19, 45, 51, 78, 95, 99–106, 179, 182, 189–90, 211, 214, 218, 281; national, 2; political, 2–4, 7, 9, 23, 25, 36, 38, 41, 42, 46, 92, 94, 103, 105–6, 115, 123, 125–26, 130, 180–81, 190, 193, 197; transnational, 10, 180, 185, 186, 187, 191 constitution, 25, 41, 44–46, 51, 62, 65, 72, 117, 135, 205, 227 constitutionalism, 75, 80 Convention on the Elimination of All Forms of Racial Discrimination (CERD), 242 Council of Europe, 136, 187 Croatia, 242 democratic deficit, 257, 260, 267

demos, 17, 39, 46, 114, 119 denationalization, 91, 105, 106, 122, 245, 249–50, 253 denizens, 96 Denmark, 114, 227, 249 deportation, 24, 27, 31, 35, 48, 53–54, 56, 161, 162, 165, 175, 185, 248 diaspora, 179–80, 182–96, 281 discrimination, 21, 22, 24, 30, 44, 51–52, 94, 123, 179, 190, 193, 207, 231, 241, 243 disenfranchisement, 41–42 diversity, 4, 79, 185, 191, 194, 260, 263, 279 Dutch Institute for Multicultural Development Forum, 239 Enlightenment, 190 ethnic Germans, 122–23, 137–39, 141 European Charter of Fundamental Rights, 265 European Citizen Action Service (ECAS), 261 European Commission, 11, 170, 213, 214, 232, 235, 248, 262 European Convention on Human Rights (ECHR), 55, 160 European Court of Human Rights, 56, 187, 190, 232 European Court of Justice (ECJ), 11, 216, 226, 262, 267 European Fund for Integration, 170 European integration, 103, 189, 205–7, 209, 211, 226, 234, 237, 246 European Network Against Racism (ENAR), 233, 263 European Parliament (EP), 11, 188, 216, 233, 262, 264 European Refugee Council, 233 European Trade Union Confederation (ETUC), 263 European Union (EU), 11, 24, 92, 117, 140, 152, 161, 179, 189, 205, 235, 243–44, 247, 257, 281

Index 305 European Union Migrants’ Forum (EUMF), 260, 261 European Ombudsman, 265 Europeanization, 5, 7, 117, 130, 210, 226, 231, 250, 258, 282 Euroskepticism, 237 exclusion, 2, 4, 7–9, 11, 22–24, 40, 42, 52, 68–69, 81, 91, 96, 100, 103–5, 107, 117, 127, 130, 131, 158, 171, 185, 197, 280 expulsion, 34, 123, 184, 185, 240 family reunification, 10, 19, 152, 160–61, 164–65, 174, 215, 216, 225, 266, 270, 271 Federal Office for the Protection of the Constitution, 175 France, 11, 26, 115, 116, 118, 137, 142, 148, 182, 189, 190, 195, 228, 232, 237, 243, 257, 261, 266, 268–70, 272, 274–76 Free Democratic Party (FDP), 118 Geneva Convention, 76, 161, 165, 236, 243 German Constitutional Court, 135 German-Polish Friendship Society, 233 Germany, 9, 10, 93, 95, 96, 97, 100, 101, 103, 106, 115, 121, 122, 135, 137, 138, 140, 141, 142, 143, 147, 148, 150, 157, 158, 162, 165, 166, 168–75, 187, 190, 215, 227, 231, 235–37, 242, 249, 263, 266, 269, 271, 274, 281; citizenship law, 22, 102, 113, 116, 117, 123; Foreigners Law, 164; reunification, 116, 119, 120, 123 globalization, 7, 28, 71, 91, 166, 183, 189, 191, 192, 196 Green Card, 157, 159, 160 Green Party. See Greens, the Greens, the, 118, 120, 124, 141, 157, 162, 164, 170, 172, 262 guest workers, 32, 96, 101, 117, 139, 225, 227

Hague Programme, 212 headscarf ban, 10, 166, 167, 168, 172, 195 Howard, John, 8, 61, 62, 64, 66, 67, 69, 70, 72, 74, 75, 76, 78, 79, 80, 81 human trafficking, 40, 49, 50 identity, 9, 28, 62, 69, 100, 105, 122, 149, 182, 186, 197, 211, 279; collective, 94, 97, 106, 180; ethnic, 194; national, 92, 93, 102, 103, 106, 115, 158, 166, 168, 172, 173 immigration: illegal, 8, 33, 176, 212, 213, 218; law, 26, 34, 48, 52, 54, 95, 100, 157, 160, 164, 166, 170, 227, 281; policy, 5, 8, 11, 117, 123, 130, 158, 171, 173, 257, 258, 262, 263, 264, 268, 269, 270, 272, 281; politics, 11, 231, 240, 242, 243, 247, 248, 249, 250, 252; regimes, 281, 282 inclusion, social, 93, 95, 96, 126, 129, 280 institutionalism, 260 integration: capacity, 215, 216; immigrant, 121, 127, 145, 166, 170, 205, 211, 214, 216, 228, 252; politics, 122; social, 4, 9, 96, 101, 107, 116 interdependence, 192 interest groups, 159, 259, 263, 264 intergovernmental, 211–13, 226, 247 International League for Human Rights, 233 Islam, 152, 169, 189, 191, 194–96, 233 Islamic, 168 Islamism, 167, 169, 170 Islamist, 170, 186, 195 Israel, 138–39, 187, 190, 195, 233, 243 Italy, 136, 250 ius sanguinis, 41–42, 95, 113, 142–43, 282 ius soli, 9, 41–42, 96, 113–17, 121, 141–43, 147, 150, 158, 282

306 Index Justice and Home Affairs, 212, 218, 264–65 Kemalism, 186 Kohl, Helmut, 101, 118 Kurd, 186, 187, 243 Kurdish Workers Party (PKK), 120 Kurdish. See Kurd labor market, 96, 100, 128, 160, 163, 168–73, 175, 210 Labor Party, 237 Länder, 118, 140, 152, 167, 271, 274, 276 law, international, 31, 62, 70, 74, 76, 79–80, 208, 212, 226 legitimacy, democratic, 22, 73, 80, 129 liberal democracy, 38, 283 liberal paradox, 6, 8, 18, 19, 99, 158, 173, 280 liberalism, 6, 38, 191 liberties, civil, 63, 264 media, 9, 49, 93, 97, 99–100, 103, 106, 118, 141, 158, 162, 165, 173, 189, 195, 230–32, 234, 243 membership: legal, 5, 31; postnational, 5 migration policy, 5, 8, 10, 62, 70, 157, 176, 205, 208, 211, 265 Milli Görü_, 233 Mobilization of Ethnic Relations, Citizenship, and Immigration (MERCI), 29 mobilization, political, 195 modernization, 104, 157, 181 morality, 17, 19, 42, 50, 54, 280 movement, free, 207, 212 movement, nationalist, 179, 182, 184, 186 multicultural, 53, 162, 169, 191, 210, 239, 260 Muslim organizations, 195 nationalism: methodological, 2–3, 232, 234–35; transnational, 180–81, 183, 185–93, 196, 281

nationality, laws, 17, 145 nationhood, 3, 9, 92, 94, 101, 113, 115–16, 121–24, 126 naturalization, 9–10, 23–25, 28–29, 41, 68, 95, 102, 104, 113–14, 116, 119, 121, 124–25, 130, 137, 139–40, 143–52, 175, 281 Netherlands, 9, 11, 118, 137, 141, 143–51, 169, 228, 229, 234, 236, 242, 250 noncitizens, 8, 18, 25, 26–28, 32, 37–38, 40, 43, 44, 46, 50, 53–57, 64, 66, 119, 150, 279, 280, 282, 283 North American Free Trade Agreement (NAFTA), 226 NRC Handelsblad, 229 Organisation for Economic Co-operation and Development (OECD), 129 People’s Party for Freedom and Democracy (VVA), 144 personhood, 227 pluralism, 68, 191, 260 plurality, 73, 80, 249; cultural, 92; ethnic, 92, 101 political opportunity structures (POS), 259 population control, 10, 206, 208, 211, 213, 217 postnationalism, 234, 250 postnationalists, 226, 227 poverty, 49, 217 proimmigrant, 242, 252, 253 public discourse, 9, 80, 93, 97, 100, 105, 106, 116, 121, 152, 170, 226, 229, 230, 250 racism, 179, 230, 231, 233, 242, 263 racist, 52, 69, 81, 228, 241, 243 Rawls, John, 21 Red-Green government, 157–58

Index 307 refugee, 7, 40, 43, 51, 54, 63, 67, 69–70, 74, 76, 101, 122, 128, 144, 148, 159–62, 164, 165, 171, 174, 179, 187, 218, 232, 236, 240, 243, 249 religion, 22, 24, 41, 51, 115, 167, 168, 170, 182, 183, 194 renationalization, 247, 252–53 rights: asylum, 140; citizenship, 6, 7, 104, 129, 197, 252; civil, 26, 33, 37, 40, 131, 137; legal, 18, 25–28, 33, 41, 50, 175 Schengen, 93, 207, 212, 226, 241, 248 Schmitt, Carl, 8, 38, 61–75 Schröder, Gerhard, 96, 101, 117, 120, 242 securitization, 5, 7, 207 September 11, 5, 27, 69, 70, 71, 76, 97, 120, 195, 280 Social Democratic Party of Germany (SPD), 117, 118, 120, 163, 167 sovereignty: limits of, 5; popular, 74; national, 2, 4, 8, 49, 62, 64, 65, 70, 79, 101, 245, 280 stateless persons, 129 Strasbourg Convention, 145 supranational, 92, 105, 182, 183, 186, 189, 192, 197, 208, 213, 214, 216, 225, 226, 228, 233–40, 243, 250, 252, 257–65, 268–69, 270, 273–76, 281–82 Sweden, 64, 116, 119 Switzerland, 11, 228–29, 234, 237, 241–42 Tampa incident, 63, 64, 65, 67, 69, 72, 73, 74, 76, 78 Tampere European Council, 217, 264 Terre des Hommes, 245 territoriality, 179, 180, 187, 197, 206, 209, 211, 218, 280, 283 terrorism, 53, 152, 162, 169, 170, 212, 243

Tories, the, 237 Transnational: community, 10, 180, 185–90; space, 10; practices, 7, 93 Treaty of Maastricht, 117 Treaty of Rome, 267 Treaty on European Union (TEU), 265 Turkey, 125, 140, 148, 150, 182, 186, 188–90, 208, 233, 267–68, 270, 274 Turkish: migrants, 268, 273, 275; workers, 267 Turks, 139–41, 143, 145, 148, 149, 151, 265, 270, 271, 274 UN Children’s Convention, 236 Union of Industrial Employers’ Confederations of Europe (UNICE), 263, 273 United Kingdom (UK). See Britain United Nations (UN), 51, 76, 136, 159, 179, 232–33, 245, 253 United Nations Educational, Scientific, and Cultural (UNESCO), 233 United Nations High Commissioner for Refugees (UNHCR), 159, 165, 218, 232, 234, 242, 249 United States, 22, 26, 27, 29, 30, 34, 43, 48, 70–72, 76–77, 80, 136–39, 148, 150, 152, 174, 187, 189, 193, 194, 208, 210; Bush administration, 70, 72, 75–77, 79 violence, 179, 195, 229–30, 235, 241, 243; anti-immigrant, 119 Weber, Max, 94, 115, 181 welfare state, 3, 95, 100, 117, 122, 124, 128, 129, 210, 211, 282 Westphalian state system, 2 World Bank, 179 xenophobia, 230, 231, 240–42, 245 Zionism, 184, 190