PRESENTER 1: Now, for the first decade of the university, Dewey was chair of the university’s philosophy department And during that time, he founded what became known as the Chicago School of Pragmatism, and intellectual movement that applied scientific methods to societal problems And also during that time period, he founded the university’s laboratory schools Now, in 1981, our then dean of the law school, Gerhard Casper, decided the law school should recognize Dewey’s contributions to the university and his contributions to legal theory So he corresponded with the philosopher Sidney Hook, who was then president of the John Dewey Foundation, about establishing a lectureship here in Dewey’s name And Hook readily agreed and supported the establishment of this lectureship in jurisprudence Now, the Dewey Lecture is so in keeping with the mission of the university, and particularly the mission of the law school Our law school was founded on the idea that lawyers needed to know more than just dry legal doctrines They needed to understand the theoretical underpinnings of the very idea of law and of lawmaking that are so crucial, and have become part of legal education here at the law school and, I think, throughout the legal academy across America Now, to understand those deeper underpinnings, legal education has to be interdisciplinary And here again, from our founding, our law school has been very interdisciplinary, and has drawn on philosophical insights and understanding We’re very happy that the Dewey Lecture has brought to the law school many distinguished philosophers to help us explore these foundations I note– I won’t list everyone who has given the Dewey Lecture in the past, but I will note that John Rawls’ famous paper, The Idea of Public Reason Revisited, was initially a Dewey Lecture, and then was published in our law review And today, the law school is delighted to welcome today’s speaker, Seyla Benhabib, the Eugene Meyer Professor of Political Science and Professor of Philosophy at Yale University and Senior Fellow at the Columbia Center for Contemporary Critical Theory Professor Benhabib is a scholar of tremendous imagination, insight, and influence She is author of dozens of books, numerous collected volumes, and over 100 articles Her ideas and works are discussed and read all over the globe– I note that they were being discussed right here on our campus earlier today– and they’ve been translated into more than a dozen languages Her scholarship and the influence of her scholarship is evident in the many accolades she has received I will not list them all I would take the entire hour listing them all They include the Ernst Bloch Prize, the Leopold Lucas Prize, the Eckhart Prize of the Identity Foundation and the University of Cologne, in addition to numerous other fellowships, honorary degrees Professor Benhabib’s most recent book is Exile, Statelessness, and Migration– Playing Chess With History from Hannah Arendt to Isaiah Berlin Her scholarship in political philosophy draws on political critical theory and feminist political theory She advocates for dialogues across cultures to explore the most fundamental tenets of human civilization, including cultural identity, freedom of association, and fundamental human rights Her work explores the impact of culture on such complex issues as sovereignty, borders, and human migration Her lecture today will explore the 1951 Refugee Convention and its 1967 Protocol, which face new challenges with the globalization of the refugee crisis We are thrilled and honored to welcome Professor Benhabib as our 2020 Dewey Lecturer Welcome [APPLAUSE] SEYLA BENHABIB: Thank you very much to you, Miles, for this wonderful introduction, and thank you, Professor Nussbaum, for organizing and initiating this It’s a real pleasure to be here among so many friends and former students What I will present this afternoon is part of a larger project I’m calling The New Sovereigntism It is about the revival of the concept of sovereignty, both on the right and the left, but also the contentious relationship, increasingly, between state sovereignty and international law So I also look forward to learning from you, since, as a philosopher, political philosopher, I am jumping into this domain During the summer of 2018, a ship of refugees, the Aquarius, sailing from the coast of Africa

with 629 people on board, including 123 minors traveling alone, 11 children, and 7 pregnant women, stood at the center of the European refugee crisis Denied admission to Italy by the interior minister, the then interior minister, Matteo Salvini, of the anti-immigrant and neo-fascist Lega Nord Party, the Aquarius drifted around the sea for days, and was eventually granted permission to disembark at the port of Valencia by Spain’s newly elected socialist government The Aquarius affair was preceded by an interception at sea by the Libyan Coast Guard under a bilateral agreement with the Italian government of a humanitarian rescue operation in November 6, 2017, which led to the death, again, of at least 20 migrants The article documenting this event, and signed by several migration scholars, was called It’s an Act of Murder– How Europe Outsources Suffering as Migrants Drown And in fact, the Aquarius was decommissioned after this affair, and Medecins Sans Frontieres, Doctors Without Borders, who operated the ship, gave its rescue operations Such encounters at sea take place under the aegis of international law and agreements The sea captain, who is on international waters, has an obligation to accept these individuals on board as long as this can be done without great danger to the vessel, and bring them to safety ashore to some country where they can place their request for asylum If the refugee vessel encounters ships sailing on designated national waters carrying the flag of a national government, there is an obligation to bring the refugees ashore under the jurisdiction of that particular national government, which is then obliged to process their asylum application in accordance with international law In the case of the Aquarius, this would have been Italy, which rescinded its obligations under international and EU law and was subsequently condemned by the Italian High Court, as well as the European Court of Human Rights Only a few years ago, we would have clucked our tongues at such episodes of European xenophobia and considered ourselves, as Americans, blissfully exempt from the perfidies of regimes violating the rights of refugees But no more The United States, long considered a country of immigrants and proud of offering refuge to the huddled masses coming to its shores, in recent years has joined in the othering and criminalization of refugees There is firm evidence, as I shall explain below, that recent US actions and policies along the US-Mexico border violate the principle of non-refoulement of the 1951 Geneva Convention, incorporated into US law through the Immigration and Nationality Act of 1980 As Nanjala Nyabola observes in a trenchant article which inspired the title for my lecture– her article is called The End of Asylum– A Pillar of the Liberal Order is Collapsing, but Does Anyone Care– there is enough blame to go around The United States, she notes, is far from the only country to slam its gates on those fleeing crumbling social, political, and economic systems Around the world, rich and poor countries alike are pulling up their drawbridges, slashing the number of refugees they’re willing to accept, and denying asylum to those who might have been admitted in the past In Africa, Asia, and South America, she concludes, the mood is much the same This is an article from Foreign Affairs This is happening at a time when the number and needs of refugees are growing I think here is the first item on your handout A report by the United Nations High Commissioner of Refugees notes that the number of forcibly displaced persons worldwide stood at 68.5 million at the end of 2017 Today, it is around 70 million This is the highest level on record

And with no end in sight to conflicts in places such as Syria, Somalia, Afghanistan, Iraq, and the Central African Republic, Myanmar, and the Democratic Republic of the Congo, already, in 2016, 1 in every 113 persons was displaced the world over Now, some distinctions Among displaced persons, only those who cross internationally recognized borders are called refugees The UNHCR classifies 40 million people as internally displaced persons, of whom 25.4 million are refugees, but among whom 5.4 million stand under UNRWA, United Nations Relief and Works Agency, for Palestine Refugees in the Near East, and 3.1 are asylum seekers, those who have, in fact, initiated or been accepted to initiate asylum procedures As the number of forcibly displaced persons has increased worldwide, not only has the number of camps grown, but camps have ceased to be places where people are held temporarily Rather, they have become semi-permanent Kenya’s Dadaab, which you see in the picture here, is part of a mega refugee camp It’s 20 years old, and houses 420,000 people Palestinian refugee camps in Lebanon are 70 to 50 years old, depending on whether the refugee population was created in 1948 or 1967 The refugees who live in Palestinian camps and, in some cases, have spent their whole lives there have become what is called PRSes, those in protracted refugee situations Refugees, asylees, IDPs– internally displaced persons– PRSes– those in protracted refugee situations– and stateless persons are new categories of human beings created by an international state system in turmoil, and are subject to a special kind of precarious existence As Hannah Arendt anticipated in 1949, their plight reveals a fateful disjunction between so-called human rights, or the rights of men in the older locution, and the rights of the citizen between the universal claims to human dignity and equality and the real indignity suffered by people who possess nothing but their human rights From Arendt’s justly famous discussion of the right to have rights and the origins of totalitarianism, to Giorgio Agamben’s Homo sacer, to Judith Butler’s concept of precarious lives, and Jacques Ranciere’s call to the enactment of rights The asylum seeker, the stateless person, and the refugee have become metaphors as well as symptoms of a deeper malaise in the politics of– late politics of late modernity I will characterize dismal as originating with the dual commitments of the state system to respect territorial circumscribed sovereignty or jurisdiction Presumably equal– on the one hand, sorry, and the internationalization of human rights on the other There are no easy solutions, either in theory or practice, to dual commitments to a territorial sovereignty on international and human rights And my task in this lecture is to explore their contradictions rather than to offer facile solutions I want to begin with the development of the 1951 Refugee Convention Then, after analysis of the doctrine or difficulties of the ’51 convention, I will turn to contemporary state practices, which are, in effect, gutting the spirit of the convention Then I’ll turn to the United States, and will conclude with some general suggestions about how we might think about the contemporary crisis Now, the 1951 Refugee Convention is one of the seminal texts of the post World War II international human rights regime, along with the UDHR Charter of the United Nations, the Genocide Convention And it was signed in recognition of the dangers to human beings of rendered homeless and stateless through persecution The articles relevant for the convention are already laid out in the UDHR

For the purposes of time, you have the hand out Article 13 grants everyone the freedom of movement and residence within the borders of each state– crossing state boundaries Article 14 is the one that encodes the right to asylum, and says, everyone has the right to seek and enjoy in countries asylum from prosecution Of course, there are some limits as to– war criminals are not entitled ipso to be granted the right for asylum Article 15 guarantees naturalization or loss of citizenship It states that everyone has a right to nationality, which has then repeated in the ICCPR But as we know, there is no international convention obliging states to grant nationality, or even what that would entail And may be minor, but important point in view of growing epidemic of statelessness now recorded is 10 million the globe over The preamble of the 1951 Convention acknowledges the Charter of the United Nations and the UDHR as the legitimizing original documents Article A-1 of the convention reads, for the purposes of this convention– this is item 3– the term the refugee shall apply to any person who, as a result of events occurring before January 1st 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country, or who not having a nationality, and being outside the country of his former habitual residence, as a result of such events is unable, or owing to such fear, is unwilling to return to it Now, there was a lengthy discussion about the problem of statelessness and refugees during the drawing up of the convention Subsequently, a separate convention was drawn up regulating the conditional persons who are stateless So I’m not going to go into that issue here I will stay with ’51 But you can see that the convention here is trying to distinguish between country of habitual residence or country of nationality, which a lot of refugees at the time did not have because they were de-nationalized The convention originally restricted the scope of the Article 1A to quote, events occurring in Europe before January 1st 1951 With the 1967 Protocol, the refugee status was universalized outside Europe because new refugee situations have arisen since the convention was adopted It’s written UNHCR rights and refugees concerned may, therefore, not fall within the scope of the convention Originally, the convention that was signed by 26 state parties, heavily representing North America and Europe And was attended by a significant number of international organizations and NGOs who participated in the deliberations Today, there are 146 state parties to the convention, but the universalization of the refugee status through the ’67 protocol has given rise to a series of discrepancies between the letter of the convention and the purposes it is being asked to serve In particular, the five so-called protected categories specified by the convention have come under criticism So item number four in the handout, I’m not going to go and do– I don’t know if it is doctrinal or philosophical, but some analysis of the ’51 convention, OK? First, the limits of the five protected categories The convention reads, the principle of non-refoulement– that’s a French word meaning you cannot be sent back to where you came from– is so fundamental that no reservations or derogations may be made to it It provides that no one shall expel or return a refugee against his or her will in any manner whatsoever to a territory where he or she fears threats to life or freedom On the other hand, to establish the well-founded fear

of a threat to life or freedom, the convention stipulates five protected categories Race, religion, nationality, political opinion, and membership of a particular social group Again, historical evidence of the debates surrounding the convention shows that this particular social group was introduced, I think, by the Swedish delegate, in particular, to cover the questions of Nazi persecution of people with different abilities But today, the category of membership in a social group, MSG, has been expanded a gender-based on gender-related crimes such as the protection of lesbian, bisexual, intersex, and transgender applicants as well as those fleeing practices of child marriages and female genital mutilation Canada and the US have led this in many ways Still, as noted by many scholars with regards to the five protected categories, this limitation seems to be a matter of policy rather than of principle It seems implausible that persecution, one scholar writes, is the only valid form of necessity And of course, as I’m sure many of you are interested in these issues today know, there is no provision for climate-related refugee movements, which is going to be the big issue now in our times OK, number two There are tensions between the eurocentric discourse and jurisprudence of the refugee protection And the fact that the largest numbers of the world’s refugees are housed in third world countries For example, the 1951 Convention requires proof of individual persecution, imposing on refugees themselves and the receiving states a heavy administrative procedure of examination and verification It has often been said that the ideal refugee presupposed by the convention is the political dissident But in an age of increased generalized violence, ethnic cleansing, civil wars, and armed confrontation among non-state groups, in what sense are such practices, as specified by the convention, adequate to deal with the rights of the most vulnerable? And in response to such concerns, the head of State of the Organizations of African Unity formulated a convention in 1974 in Addis Ababa to govern the specific aspects of convention of refugee movement in Africa And there is also a 1984 Cartagena declaration on refugees adopted in Cartagena, Colombia The significance of both of these regional conventions is that they broadened the definition of the refugee conditions to include conditions of generalized violence in the country of origin, foreign aggression, internal conflicts, and massive violation of human rights and not just individual proof of persecution, OK? Add three In an attempt to respond to some of the shortcomings of the 1951 Convention in the light of the global changing situation, the legal scholars James Hathaway and Michelle Foster propose a striking reinterpretation of the convention and its protocol by reading it in light of further developments in international human rights Refugee law or right maybe the world’s most powerful international human rights mechanism Noting that there is no single body charged with the authoritative interpretation of the 1951 Convention, such as to resolve conflictual issues, they warn of the growing risk of fragmentation and regionalization And they propose what they call a principled treaty interpretation And Hathaway and Foster acknowledged the difficulty of linking the convention to older developments in international human rights law But they argue that quote, so long as the risk of denial of a broadly accepted international human right is sustained, in that sense, as a practical matter, it is ongoing or systematic It can reasonably be said that there is a risk of being persecuted of the kind that may engage and convention obligations And in five, I list the relevant international human rights

conventions of the post World War II period in the light of which Hathaway and Foster attempt to interpret the ’51 convention And it seems to me that, from the standpoint of legal scholarship, this is now the most contentious and maybe also the most original development Point number four One of the biggest challenges facing the convention is the distinction between political persecution and economic deprivation It is well established that the ’51 convention does not recognize conditions of extreme poverty and material deprivation as legitimate grounds for requesting asylum Economic migrants are considered individuals who raise purious claims to protection and refuge But how valid is this binarism between deserving refugees and economic migrants? Why are extreme poverty and material deprivation not legitimate grounds for escaping from them? Persecution on the basis of race, religion, and nationality and political opinion that result in unemployment or underemployment, job discrimination as well as economic marginalization There just is no plausible way to really try to make this distinction, I think, theoretically and in practice But as I will argue in my conclusion, it’s one of the hardest chestnuts to swallow from the standpoint of state practice So let me just move quickly because I am realizing that this first part has taken a little longer than I expected Point number five, which is that a perverse consequence of the distinction between deserving refugees and undeserving economic migrants is that those who gain convention refugee status become a kind of aristocracy who are deeply envied by others There are reports– ugly reports– of Afghani and refugees in Greek refugee camps, for example, of stealing Syrian refugees documents or falsifying their own identity papers to pass as Syrian since the latter are recognized as convention refugees, OK? So this is one point when you can sometimes see that the law, despite itself by creating these categories, also subjects individuals to humiliation and unexpectedly violent consequences Now, as Matthew Gibney observes, increasingly the term asylum seekers became shorthand in public and media discourse for economic refugees, people taking advantage of the asylum route to escape normal migration control, immigrants in pursuit of the benefits of welfare state at the expense of citizens, or especially after September 11, 2001, as potential terrorists or security threats Economic migration and movements of refugees fleeing conflict became increasingly entangled and criminalized Gibney’s reflections lead him to the haunting phrase, 1,000 little Guantanamo’s And to the conclusion that we have reached the reductio ad absurdum of the contemporary paradoxical attitude towards refugees Western states now acknowledge the rights of refugees, but simultaneously criminalize the search for asylum Now, I want to talk very briefly, again– I’m sure many of you want me to get to what about the United States– very briefly about state practices of deterritorialization This is an important development Now, by using the phrase 1,000 little Guantanamo’s, Gibney means– and here he is assuming that Guantanamo does not stand under any kind of sovereign jurisdiction of the United States, which is not true after the Hamdi and Hamdan decisions, OK? But by 1,000 little Guantanamo’s what he means is that centers of power have been created where states and they’re formal and informal agents act free from the constraints imposed upon their activities by courts, international and domestic law, human rights groups, and the public at large So 1,000 little Guantanamo’s really

refers to what has also been called the creation of legal black holes And this is really spreading in the state practices of encountering refugees Such centers where states encounter refugees emerged through the use of exclusionary visa measures, imposition of carrier sanctions on airlines and shipping companies, through the employment of immigration staff on airlines, or even on ships, vessels, and planes Declaration of airports as international zones in which states would not be obliged to offer those in such places the protections available on state territory For example, the Frankfurt airport has a huge building where refugees still are held because it’s suppose they are not on German territory, and thus, covered by the European Convention on Human Rights Thus, states are expanding the encounter with refugees to sites that escape the supervision of their national jurisdictions A process of deterritorialization analogous to the search for tax-free havens by international companies That is, escaping from national jurisdiction is developing But not only in this paradoxical process of deterritorialization there is an expansion, there is also a shrinking And the shrinking here– the best example here is in one of the most radical measures of this kind, Australia in 2001 excised Christmas island’s agent called Ashmore Reef, the Cocos Islands, and other territories from its migration law zone so that the landing of asylum seekers on these territories did not engage the country’s convention obligations And now, of course, Nauru is the site of these refugee camps or the legal black holes There has been some change back and forth in the Australian government’s practices, but this is still going on A consequence– and I think this is important from the standpoint of both normative politics and the law– a consequence of these deterritorialization strategies is the de-linking of the bond between territory, jurisdiction, and the public in whose name and with whose authorization law and coercion in democratic societies are supposedly exercised Scholars call these processes border induced displacements as well And argue that an ethical and political distance is created between migrants and refugees upon whose body the law is exercised and the National Public in whose name such law functions The most significant example of such extraterritorialization is the agreement between the European Union and Turkey But I’m not going to go into that If you want to ask any questions about it, we can further discuss OK, and what about the United States? I’m sure many in this audience probably know more about some of these developments than I do American law is quite difficult. But here we go As has been often noted by scholars of international law, although the United States has been at the forefront of many human rights treaties and conventions in the post World War II period, its own compliance with these and accession to them can only be characterized in Michael Ignatieff’s words as exceptionalism morphing into exemptionalism The US basically exempts itself from all the treaties that it has, in many cases, taken the leadership for the international community to accept Thus, although the United States was a high contracting party to the 1951 Geneva Convention, it only acceded to the ’67 protocol in ’68, but did not pass legislation implementing this convention until 1980 After the Vietnam debacle, Congress passed the Refugee Act of 1980, which established procedures for admitting refugees and handling asylum applications Nevertheless, the United States avails itself of all the measures of state behavior that I listed above to circumvent or dispense

with its obligations under the Refugee Convention, and has been doing this for quite some time One of the first examples of a bilateral agreement, such as that signed between Libya and Italy or the European Union and Turkey, was the case involving the interception of Haitians, I’m sorry, on high seas, and their forcible return to Haiti In 1981, President Reagan entered into an agreement with the Haitian government to interdict vessels sailing for the United States with only short refugees screening interviews by coast guards conducted on the ships According to the so-called Tonton [INAUDIBLE],, in 1992, responding to a large increase in Haitian immigration flowing from military coup in that country, President Bush ordered interdiction and returned with no screening whatsoever Although President Clinton had denounced the Bush policy during the presidential campaign, the Clinton administration continued to forcibly interdict all Haitian boats headed toward the United States Nor is the practice of extraterritorial detention unfamiliar in the US Haitian refugees who have tested positive for HIV were detained at Guantanamo Bay because the statute in force at the time made persons with communicable diseases of public health significance excludable from US territory The law was amended in 1993 Through a mass prejudgment of refugees without proper interviews, and the routine detention of asylum seekers, the United States contravened the spirit, if not the letter, of the convention Now, all this pales in comparison with the transformation of American immigration and refugee law in the wake of the attacks of September 11, 2001 Not since prohibition has a single category been prosecuted in such record numbers by the federal government, writes Ingrid Eagly in an article in the Northwestern Law Journal Judith Resnik, my colleague at Yale Law School from whom I’ve learned a great deal, notes that quote, in the years between 2008 and 2015, immigration prosecutions have represented more than half of the annual federal caseload In addition to criminal prosecutions, incarceration and deportation have become the preferred punishment for dealing with migration felonies, leading to the emergence of a system called crim imm or crimmigration As early as the fall of 2014, the Obama administration had begun detaining mothers and children from the Northern Triangle countries, namely El Salvador, Honduras, and Guatemala Again, scholar Shoba Wadhia recounts these developments She quotes, on February 20th, 2015, a federal judge certified the class of mothers and children and issued a preliminary injunction blocking DHS policy Undeterred, in January 2016, DHS began arresting mothers and children in order to detain and deport them In some cases, they were transferred to family centers in Texas and Pennsylvania I’m afraid that the so-called emergency at the border has been a long time brewing, and is more continuous with democratic administrations policies than has been acknowledged or we would like to acknowledge Now, a brief filed by Elora Mukherjee and the Center for Refugee Rights out of Columbia University and other colleagues, a brief called Al Otro Lado versus– the secretary then, Kirstjen Neilsen I’m quoting from the brief says, quote, the Immigration and Nationality Act and its implementing regulations set forth a wide variety of ways in which such individuals may seek protection in the USA More precisely, the INA gives any non-citizen who is physically present, or who arrives in the United States, a statutory right to apply for asylum, regardless of such individual’s immigration status And under Article 8 USC and code of federal regulations CBP must refer for a credible fear interview

any non-citizen who presents itself at the point of entry and indicates an intention to apply for asylum, or on the basis of fear of persecution This is a non-refoulement clause integrated into the United States Instead, what has happened through a combination of tactics involving misrepresentation of refugee rights and US law by officials, outright lies in many cases, coercion, deceit, and the creation of an ad hoc procedure called a waiting list, in joining asylum seekers to return to Mexico to get a number for their interview, and then to cross over to the United States The customs border patrol officials, CBP, and the Department of Homeland Security, have most likely violated US and international law and created an emergency situation in the US Mexico border The emergency is not only caused, or was caused, by the number of refugees arriving per month, about a year, year and a half ago There are legitimate logistical and personal issues that need to be handled, such as the dearth of immigration judges But the real emergency is that this crisis may be manipulated, and is being manipulated, to become a state of exception in which the Constitution is suspended, and the most intense and extreme antagonism, in the words of Colin Schmidt, between friend and enemy unfolds OK, moving towards a conclusion How did we get here? Why is it the case that most liberal democracies, such as the United States, Germany, Italy, the UK, France, Australia, and the list can go wrong, are abdicating their commitments to human rights, violating international law, and creating zones of lawlessness I think part of the answer is that– and I’ll be brief here– in an age of rapid transformations in which the coordinates of our everyday lives are melting into thin air, the refugee and the migrant have become the quintessential others and strangers In the age of liquid modernity, to use a felicitous expression of Zygmunt Bauman’s, blaming the stranger is a way of reducing complexity and avoiding responsibility The perception of strangers as dangers is easy, seductive, and psychologically deep seated when human beings themselves are threatened and feel insecure The sense of being abandoned by their own state, while being dumped upon to care for the poor migrant and the displaced asylum seeker in their own neighborhoods and schools that are already suffering exacerbates fears among the native population that they, too, could find themselves in the predicament of the unwanted and vulnerable stranger, deserted or abandoned by their own state Do liberal democracies have the moral, political, and intellectual resources to deal with these dynamics, or must they succumb to the politics of fear and ressentiment The political philosopher Judith Shklar once noted that the principal task of liberal societies was not only to render justice done but also to forbid cruelty Cruelty inflicts not only physical harm and torture on its subject, but it subjects them, sorry, to humiliation and indignity Cruelty is spreading in liberal democracies at the cost of those who are most vulnerable, whether within or outside our borders How can the politics of cruelty be avoided? I’m going to offer now, after this very large picture, a number of concluding thoughts which are invitations to a conversation The issues that I’m still working on I think first it is necessary to decriminalize the transnational movement of peoples, including that of refugees and migrants To decriminalize does not mean open borders, which I’m not advocating But it does mean regulating porous borders under international law Today, by contrast, what we have is the treatment of the refugee as a trespasser and a lawbreaker, rather than as a human being endowed to the right to have rights States build walls, perfect border controls, create electronic surveillance fences,

and spend millions forming quasi military border patrols of dubious political orientation and loyalty They are neither police nor soldiers Who are they really? Members of the CBB The major stumbling block one has to admit in theory and practice to the ’51 convention remains the unstable and fluid distinction between the persecuted refugee and the needy economic migrants In many cases, this distinction is bogus and untenable Yet, to assure continuing state support for the convention as well as public solidarity with the refugee, some such distinction will need to be maintained The work of public enlightenment, which is what I think we are doing, is to uncover the historical and anthropological dimensions of human movement throughout the centuries, and by deflating what I will call the ontology of containment And what I mean by the ontology of containment is to consider the refugee problem always from the standpoint of the recipient state of the one who comes to us, of the one who destabilizes us, of the one outside who is coming in or who wants to come in The perspective of the state is that of an ontology of containment that denies the radical fluidity, historical variability, and interdependence of peoples, histories, cultures, and territories on both sides of the border You would think that in the United States, one would not have needed to emphasize that But look at Australia also, a country of immigrants One’s reaction, read refugee policies Human mobility is an anthropologically deep seated driver of the human species And the regulation of human mobility through national borders is quite recent in human history This is not a plea for a world without borders because I believe that democracies require jurisdictional boundaries We must know in whose name the law is being enacted and applied, and how we can request accountability from those who enact it But these jurisdictional boundaries need not be co-terminus with militarily armed and violently guarded border regimes If we move our gaze below as well as above the level of the state, we see that municipalities, regions, border lands, transnational alliances shape and define the interdependency of citizens and strangers A very important point to understand migration in terms of border lands, not bordered lands, but border lands, to consider the commerce that used to exist between Tijuana and San Di– or city Juarez and Texas prior to the criminalization of the border We need to move to a broader perspective beyond the ontology of containment, such as formulated by Michael Doyle and his colleague [INAUDIBLE] proposal to model international mobility convention I recommend everyone to take a close look at it This convention seeks to elucidate the rights of all humans crossing international borders in accordance with transnational human rights standards for all economic migrants as well as refugees, students as well as tourists And here the move, is in some ways, to take the exceptionalism from the onus of being a refugee by putting a broader convention about mobility, and maybe also does weaken this sharp distinction between the refugee convention and the economic migrant by regulating rather than criminalizing global migratory movements To conclude, the 1951 Convention is one of the most important international human rights documents in our world Ushering a new sense of obligation among states towards human beings and toward one another It is in peril today everywhere But the way forward is not to weaken it further,

but rather to embed it in a broader perspective of cosmopolitan justice that proceeds from the ubiquity of human movement throughout the centuries in search of freedom and opportunity relief from persecution as well as the hope for a better future for one’s children No liberal society can remain true to its values if it does not also respect and uphold the rights of the needy strangers who come to its borders Thank you for listening PRESENTER 2: Thank you very much I don’t know if I’m supposed to use a mic to do the questions I really want to thank Professor Benhabib very warmly for a terrific lecture that really marries philosophy of law in exactly the way that we have wanted from the beginning of this series of doing lectures And thank you all for coming Of course, the move to noon hour, though it allows so many more people to come, it shortens the time So we have really about 15 minutes, let’s say, for questions And I’m going to ask the people who are having lunch with Professor Benhabib later on to hold your fire till then OK, David AUDIENCE: Two questions One of them is the focus of your lecture is on people presenting themselves at borders And if the majority of people that are refugees are in camps like that– I might guess there’s 5 million people in camps It really hasn’t been decided, the number But either way, it’s very, very large And [INAUDIBLE] has gone down Maybe that’s the key The United States has [INAUDIBLE] It is taking years for the United States to accept all those people The question is, isn’t the real problem that we’re not [INAUDIBLE]? And then the second question is on [INAUDIBLE] You attributed the treatment of the people at the border of the United States as a racist thing [INAUDIBLE] But I guess the question is, how have you excluded other possibilities from that treatment? So the treatment has been consistent across different administrations In Spain, the government hasn’t been accepting many people Obama did pretty much the same thing as Trump [INAUDIBLE] was under Obama How do we know what the real cost is of [INAUDIBLE]?? PRESENTER 1: How do we know that state’s rejection of refugees given that it shows– AUDIENCE: Consistent across governments all around the world– left, right governments, you name it The questions is whether something else is causing it other than racism PRESENTER 1: Yeah The first question I think that you are quite right that one should also focus on the condition of refugees in these camps because the number of camps are multiplying I don’t know that I want to say this is all we need to do, but I agree with you that this is incredibly important And that the camps are a site of some kind of deep failure of the state system And Greece, right? There are still close to 50,000 refugees on the islands And at the beginning, Greece was very receptive to the refugees, but now people are beginning to turn– have already begun to turn against them because they cannot rent their hotels, Airbnb’s and so on Now, why is this happening? This is happening, I mean, if I can’t get technical, because the European Union will not accept refugees to be airlifted, OK? I mean, it’s not quite at the level at which you were asking this question, but sometimes there are specific difficulties that create that condition Some of these refugees– a lot of them want to go to Germany, many want to go to Sweden, the Netherlands, et cetera In some cases, refugees from the camps can be resettled They are being stuck there because states cannot agree among themselves I mean, as you can tell, I’m more of a European scholar They cannot agree among themselves about burden sharing And so because they can’t agree, they get stuck there Now, an interesting case, in my opinion, is what’s going on with Syrians in Turkey Turkey now is the largest refugee receiving country in the world something like 3.6 million, right?

And Turkey is not a signatory to the ’67 protocol, which is to say that the Syrian refugees who come to Turkey are under Turkish law Now, there are a few United Nations camps where about 10,000 refugees are awaiting entry into the United States These are families who have been vetted and so on It’s not happening under President Trump Now, what’s going on? I mean, this is really an interesting case Not only because I was born in Turkey and so on But what is going on is that, in this instance, the majority of the Syrians are mixing in with the population And this is causing conflicts in workplaces There is– I’m going to try to come to the point here, but it’s fascinating There are now tremendous issues about under age marriages The Syrian families practice it Turkish law now is having to adjust itself, et cetera But why is this happening? It is happening, to some extent, because of ethnic and religious continuity That this kind of refugee condition is not giving rise to the nightmares of the Afghanis and the Iraqis who are stuck in Greek refugee camps An authoritarian regime that is managing this somewhat better So I think that, just to bring this to the point, most refugees want to be moved out of camps They want to become permanent residents, or they need to be given state status And of course, now we have the situation of Myanmar with one million Rohingya who are hanging out in suspension I agree with you that we should also focus on this I don’t believe that this is just the United States responsibility So you had this statistic about $650 650 people It’s not just our responsibility Our responsibility is to go back into a position of leadership and integration, and saying let’s get on with it The United States matters It matters a lot What is done in this country gives every one of us a license to violate international law and to continue certain practices So it’s not the moral task of the United States to accept all of the world’s refugees They don’t even want to come here They want to go up– OK Why are there practices of rejection? Two answers I’m sorry, I’m being a bit long winded if you had other questions But these are– you said you didn’t say racism Well, I didn’t say racism because Donald Trump is a racist, but the continuity in American administration policies towards Central America has not always been run by racist presidents I mean, our country, demographically, we are going to be a brown/black country in the next decade So I don’t want to just throw around the term racism We know what this president is, but am I going to call all of United States treatment of refugees racist? Well, in the case of Haiti, there’s a dimension of that, for sure Look, you can push me against that, OK? You can push against that I’m just putting a position forward here But there are many– 41 states said to the administration, we are happy to receive refugees, OK? Let us not forget that The federal government, its role is not– it is according to the law, but 41 states and communities have said that it is OK I think I’m going to stop there There is a lot to be to be said, but I feel as if I’m taking up too much time PRESENTER 2: Yes Here AUDIENCE: Hi One of your conclusions– one of the points you made in your conclusion is [INAUDIBLE] decriminalize movement And I have one worry about the ways in which states might go about doing that So one way that states have decriminalized some movement is by creating complimentary forms of protection, things like temporary protected status

or [INAUDIBLE] of the United States, things like humanitarian visas in France And I’m wondering what your thoughts are, and how those forms of complementary protection might actually be misreading the refugee convention PRESENTER 1: Yeah, thank you Excellent question It’s kind of between a rock and a hard place I would say that if by criminalization we also mean criminal prosecution, detention, deportation, there is something about the state practice, in particular, of creating detentions and camps in our century And now, I’m talking in political theory terms, that I think we have to go against Partially because– I mean, not partially because the creation of detention camps, you see, as a way of states for dealing with intractable problems, is a formula that cannot repeat itself I mean, I’m making a point that I think is historically quite valid Not only prisoners of war, but the undesirable refugee, the migrant with felony convictions, and all the others It’s very easy, isn’t it, for the state to seek that one solution And I mean, there are political thinkers like [INAUDIBLE] who would say, the camps are the– there are a continuous project of liberal modernity I don’t want to say that I want to try to see if there are any normative and institutional elements in the system that can prevent us from the practice of seeing detention and camp But your question is really an excellent one There are some articles in the Refugee Convention– and forgive me if I cannot cite to you verse and number, which actually urges states to try to integrate refugees into the economic market and resolve the cases as quickly as possible But I will add one more thing It is a moment of embarrassment in the Netherlands where Martha has also held many lectures and is very well known When the state decides, in some cases, that the refugee is not to be given asylum status, this is called the– what they do is communities, basically, do not cooperate with the state, and they exercise something called duldig, which in German it means being patient But the Dutch practice of duldig is the community simply refuses to denounce the person who is out of status, OK? And I’m going to say out of status because I’m sick and tired of this language of criminality and derelict, OK? There are many of you who are foreign students here You can become out of status within the course of a month or two by some kind of thing that can happen So the term out of status is, I think, is a more humane term But you have countries where people are exercising some form of civil resistance, some form of civil disobedience, and just basically protecting deportation of these migrants And we have it in this country as well with many doctors who are going down to the border and administrating medical care when they’re actually told that they shouldn’t be doing this But it’s a tough question I’m thinking about it with you, OK? Thank you PRESENTER 2: OK, we have time for one more short question Yeah AUDIENCE: I don’t have a question, I have an observation [INAUDIBLE] seven countries where refugees are coming from I don’t think there’s a solution to the refugee problem until the fundamental problem is solved These nations where people are fleeing want jobs [INAUDIBLE] Why isn’t the effort of the Western world, Western Europe, North America, concentrating on making

these non-functional nations function so these people would want to stay where they’re at? This refugee problem is not going to be solved by just taking more refugees The fundamental problem is dysfunctional, un-functional– whatever word you want to call it– nations that [INAUDIBLE] It’s not a question, just an observation SEYLA BENHABIB: Well I think that there is some truth, of course, to what you’re saying Most people don’t want to leave their countries as refugees, believe you me People don’t pick up and track their children for 1,000 miles from Guatemala, Honduras They don’t do it just because they want to They are being driven by extreme conditions Maybe a few are not, but very, very, very few Is it also a question of establishing justice in dysfunctional governments? Of course it is But we are more implicated than we would like to think And there is some work showing that the United States drug enforcement policy, in some of these countries, which are through which drugs flow have themselves created, in many cases, the paramilitary organizations that are now challenging the governments So it’s not always– everything is not always the United States fault, OK? But this country is hegemon In this continent, it is a hegemon And in the case of what’s happening in the so-called triangle states of Honduras, El Salvador, Guatemala, our drug policies have had a great deal to do with some of the functionality of these governments PRESENTER 2: Well, I’m so sorry, but we have to get out of the room now Because we could have gone on for so much longer But I do want to thank you, Professor Benhabie [APPLAUSE]