Institute of Philosophy

Faculty of Humanities

Leiden University, The Netherlands

Name: Giacomo Modanesi

Student n°: s2109506

Master’s Course: Philosophy, Politics and Economics

Course year: 2019/2020

Supervisor: Thomas Fossen

1

We may say prayers when we are trying to solve the problems we face, but it is up to us to put an end to violence and bring about peace. Creating peace is our responsibility. To pray for peace while still engaging in the causes that give rise to violence is contradictory.1

1 Dalai Lama, Twitter Post, June 11th, 2018, 11.30. https://twitter.com/DalaiLama/status/1006106278681182208.

2

DEMOCRATIZING THE “EUROPEAN MIGRANTS CRISIS”

Table of Contents

Introduction

Chapter I – The ‘Boundary Problem’ and the Attempt to Democratically Decide the Scope of ‘The People’

1.1 The Classical Answer to the ‘Boundary Problem’ 1.2 The Paradox of Modern Democratic Theory Disclosed: The Relationship between Demos and Territory 1.3 Globalization and the Necessity to Re-Think Our Conception of Political Community

Chapter II – Migration Policies and the ‘European Migrants Crisis’

2.1 Migration, Nation-State Policies and the Quest for Control 2.2 Globalization and the Necessity to Re-Think Our Decision-Making Process 2.3 The ‘European Migrants Crisis’: A New Challenge for Democratic Theory

Chapter III – Migration Policies: a New Legitimization

3.1 Abizadeh’s Answer to the ‘Boundary Problem’: the “Unbounded People Thesis” 3.2 The All-Affected Principle and the All-Subjected Principle 3.3 From a State Sovereignty View to a Different and More Democratic Decision-Making Process 3.4 The Consequences of the All-Subjected Principle for EU Migration Policies: a More Democratic Legitimization and Implementation Process

Chapter IV – The Relationship between the ‘People of Migrants’ and the Classical Conception of Demos Disclosed - The New Legitimization Process to the Test

4.1 A Traditional Conception of Demos: Miller on What Constitutes a Good Demos 4.2 Can a Group of Individuals such as that of Migrants Be Considered a Demos? 4.3 The Challenge for Today’s Democratic System: The Change Is Necessary

Conclusions

3 INTRODUCTION

In this thesis, I shall address a present-day issue for the European Union, that of the ‘European migrants crisis’. I am interested in the relationship between the migration waves that Europe is facing and modern democratic theory. In particular, I want to answer the following questions: could the EU address the migration crisis in a democratically legitimate way? And in order to do so, who should be included in the decision-making process about EU migration polices? These questions cannot be answered lightly because I strongly believe that the migration crisis Europe is experiencing represent a new challenge for democratic theory as a whole. My attempt to reply these questions will show that the new challenge posed to democratic theory consists of the necessity to re-think our decision-making process, yet in order to do so it is also necessary to re-think our conception of political community.

In order to have more effective and inclusive migration policies, I suggest that there should be three agents taking part in the policymaking: the EU Member States, the EU neighboring countries and a new representative of what I named the ‘people of migrants’. My enquiry, then, turns to investigate how this new decision-making process could be legitimized. In particular, I argue that the ‘people of migrants’ should be entitled to a representation. I strongly argue for a legitimization of the ‘people of migrants’, whose entrance in the political debate on migration I consider a necessary change to cope with an international issue, which until now has caused an harsh political debate within the EU, yet an extremely mild and ineffective response.

My journey into this fascinating topic was sparked by today’s political debate over the migration problem, which has often seen Italy, my native country, as a key player in the discussion. When I first began to investigate into this subject, it became soon evident that nor a single nation-state, nor the EU policymaking would solve the issue on their own. After some research on the topic, I came across an important political debate concerning democratic theory, which I thought would help me figuring out a viable solution. This political debate is the so-called ‘boundary problem’. For the purpose of my thesis, it is pivotal to analyze in depth the general background around this topic as it functions as theoretical support for the thesis itself.

In the first chapter, I provide some general background on the political discussion trying to answer a crucial question for democratic theory: who decides the scope of the people? The enquiry to answer this question is known as the ‘boundary problem’. In this debate, Frederick Whelan plays a crucial role as he unveils an important paradox for democratic theory, the impossibility to democratically decide who is and who is not part of a certain constituency. The apparent impossibility to do so is due to the overlapping role of the demos, who is contemporarily the group of people who legitimize political power as well as the group upon whom the very same power is exercised. The main consequence of this paradox is that ‘the people’ should be deciced a propri.

4 As I argue in the first chapter endorsing Sofia Näström’s analysis, this paradox has been used to legitimize nation-states through the notion of territory without really trying to answer the question. However, with the increasing of de-territorialized phenomena such as globalization and migrations, the nation-states answer to the scope of the people is becoming more and more ineffective because problems need to be handled on a larger scale. Therefore, for the purpose of my thesis, I decided to embrace Näström’s answer to the ‘boundary problem’. She does not provide a fixed answer to the scope of the people, yet she leaves space to change the constituency depending on the subject at stake. She proposes to keep the gap at the heart of democratic thought continuously open. I thought her solution would be perfect to identify the right agents who could decide on a wide-ranging topic such as that of migration. More generally, I suggest that the first need to approach the subject of migration correctly is by re-thinking our concept of political community. A territorial based political community such as that of nation-states is, in fact, unable to cope efficiently with the issue at stake.

Following the necessity to re-think our concept of political community is the consequent need to re-think our decision-making process. This is the subject of my second chapter. I argue not only that nation-state policymaking over migration processes has no longer efficacy because of globalization, yet that nation-states also lack the legitimacy to continue to legislate on the subject. I, then, conclude with the suggestion that regarding the specific case of the ‘European migrants crisis’, the decision-making process needs to be enlarged to three agents: the EU Members States, the EU neighboring countries and the ‘people of migrants’. The implementation of this new decision-making process is, I believe, the great challenge posed to democratic theory by the ‘European migrants crisis’.

In the third chapter, I focus my attention on properly legitimizing the new decision- making process which I proposed in the second chapter. In order to be implemented, in fact, it needs some sort of legitimization. Furthermore, I also need to cope with the legitimization of the ‘people of migrants’, who is a new agent risking to appear quite feeble on a first look. These are pivotal subjects that I need to address if I want to argue for the implementation of the new decision-making process that I suggested above.

First, I argue for the legitimization of the new and enlarged decision-making process. To do so, I root my argumentation on Arash Abizadeh’s unbounded demos thesis. This thesis allows me to challenge the nation-state sovereign view, which allocates nation-states as the only rightful agents of policymaking. Second, I argue that nonmembers such as the ‘people of migrants’ should be part of the decision-making process because of the all-subjected principle, which gives right to a democratic say to all of those people over whom power is exercised. This is the case of migration policies, for instance, since they can and do coerce many migrants reducing their range of choices, affecting therefore their autonomy.

I conclude this chapter, then, having demonstrated a strong legitimization of the new decision-making process that I had previously suggested. I did this by showing that the decision-making process for the implementation of migration policies must be legitimized to all of the subjected agents, which are EU institutions and MS governments, EU neighboring countries and the new representative institution, which represents the ‘people of migrants’.

5 In the last chapter, I face some counter-arguments to my thesis related to probably the weakest of the above agents, the ‘people of migrants’. In particular, I reply to some arguments brought up by David Miller challenging their status as a proper demos. I, instead, argue for their right to be considered a proper political community, a ‘people’. Furthermore, Miller doubts the feasibility of a proposal such as mine due to some pragmatic issues concerning the smoothness of such an enlarged democratic procedure. I conclude stating that although I am aware that there might be practical difficulties in the decision-making which would need further investigation, I firmly believe this change is a necessity because of its increased efficacy, its improved fairness and a solid future perspective.

6 CHAPTER I

The ‘Boundary Problem’ and the Attempt to Democratically Decide the Scope of ‘The People’

1.1 The Classical Answer to the ‘Boundary Problem’

All conceptions of democracy share a common feature; they all refer to some kind of community of individuals. This community is usually called demos, from the ancient Greek word δῆμος. The term used to mark the group of citizens of an ancient Greek city-state (polis), but today it usually refers the common populace of a state, ‘the people’.2

Kratos, on the other hand, means power or rule therefore, in its entirety the term democracy indicates “power or rule of the people”. This being the etymology of the word, I can define democracy as a group of people who collectively govern themselves. The so-called ‘boundary problem’ enquires into the notion of demos and its limitations.

In the second half of the XX Century, Robert Dahl realizes that “how to decide who legitimately make up ‘the people’ and hence are entitled to govern themselves […] is a problem almost totally neglected by great political philosophers who wrote about democracy”.3 Although it is not accurate to claim that in the history of ideas the problem has been completely overlooked in political debate, I believe that Dhal is the person who emphasizes the importance of raising again a political debate over the topic.

Since Dahl’s contribution, the topic of the people’s boundaries has generated intense discussions. Many intellectuals have tried to provide an answer to the question of who is eligible in taking part of the process of decision-making. Despite the proliferation of many different answers, I think that two main trends may be distinguished. I shall name one the “nationalist” approach because its theorists tend to identify the boundaries of ‘the people’ with nation-states. Among these, there are Whelan, Christiano, Miller and Song.4

The other, instead, is the “cosmopolitan” view, which endorses the idea that in principle the demos has no confines. I shall name this view cosmopolitan because it is consistent with different cosmopolitan perspectives such as Held’s belief of one only demos correspondent

2 From now on, I shall use the terms demos and ‘the people’ interchangeably. 3 Robert A. Dahl, After the Revolution? Authority in a Good Society (New Haven: Yale University Press, 1970), 60-61. 4 See Frederick G. Whelan, “Democratic Theory and the Boundary Problem”, Nomos 25 (1983): 13-47; Thomas Christiano, “A Democratic Theory of Territory and Some Puzzles about Global Democracy”, Journal of Social Philosophy 37, no. 1 (2006): 81-107; David Miller, “Democracy’s Domain”, Philosophy and Public Affairs 37, no. 3 (2009): 201-228; Sarah Song, “The Boundary Problem in Democratic Theory: Why the Demos Should Be Bounded by the State”, International Theory 4, no.1 (2012): 39-68.

7 with everyone in the world or Carens’ proposal of a worldwide freedom of movement.5 Theorists such as Goodin, Abizadeh and Agne hold this second position.6

The reason why the ‘boundary problem’ has generated such a heated discussion is twofold. The first and most obvious reason concerns the pragmatic value of the issue. The ‘boundary problem’, in fact, investigates the concrete problem of who forms the constituency with regard to the particular problem considered. For instance, what is the proper constituency for a democratic solution in the conflict with the Kurds? Should the Kurdish people alone approve a referendum for their independency, or should it also involve those states where the Kurds are living like Turkey, Iraq, Iran and Syria?

If we take into account as the proper constituency for such a referendum the Kurdish people only, it is more likely that the outcome of it would result in a claim of independency for the Kurds. On the other hand, if we decide that the proper constituency is composed of all the citizens of the interested states (Turkey, Iraq, Iran, Syria), the referendum is more likely to have a negative outcome for the independency claim of Kurdish people because of the many political, economic and social factors at stake.

From this case, I think it is clear that different answers to the question of constituency would greatly affect the outcome of political decisions. The example is only meant to explain the practical value of the ‘boundary problem’, and I am not going to go any deeper into the Kurds problem since these questions would need an essay of their own to be answered properly. However, it is important to highlight pragmatism as a focal characteristic of the issue because its importance will rise in the second chapter when I shall investigate the relationship between the ‘boundary problem’ and migration.

If the practical worth of the ‘boundary problem’ is quite evident, on the contrary, it may not be as clear that the ‘boundary problem’ also involves a legitimacy issue. This is the second reason why the discussion is so important. On the topic, Frederick G. Whelan writes:

Democracy is commonly put forward as the sole foundation of legitimate government, and as the sole legitimate method to make binding public decisions of all sorts. […] The boundary problem, however, reveal one of the limits of the applicability of democracy, and acknowledgement of this may have the beneficial effect of moderating the sometimes-excessive claims that are made on its name.7

5 See David Held, Democracy and the Global Order: from the Modern State to Cosmopolitan Governance, Oxford: Polity Press, 1995; and Joseph Carens, “Aliens and Citizens: The Case for Open Borders”, Review of Politics 49, no. 2 (1987): 251-273. 6 See Robert Goodin, “Enfranchising All Affected Interests and and Its Alternatives”, Philosopophy and Public Affairs 35, no. 1 (2007): 40-68; Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 37-65; Hans Agne, “Why Democracy Must Be Global: Self-Founding and Democratic Intervention”, International Theory 2, no. 3 (2010): 381-409. 7 Frederick G. Whelan, “Prologue: Democratic Theory and the Boundary Problem”, Nomos 25 (1983): 40-42.

8 Whelan refers to a limitation in the application of democracy; in order to implement a democratic government or a specific policy, you first have to identify ‘the people’ upon which the political power is exercised. The identification of a demos, then, is the political precondition to democracy. This is the first legitimization issue, which consists in how to determine the scope of ‘the people’.

Furthermore, in modern democratic theory ‘the people’ does not only constitute the individuals subjected to political power, ‘the people’ also furnishes the political legitimacy to political power. In fact, as previously stated, democracy identifies a group of individuals who rule themselves, and the sovereignty belongs to the demos (popular sovereignty). This is the second legitimization issue, which concerns the legitimization of political power, or the government.

Therefore, in modern democratic theory ‘the people’ is both the legitimization principle of democracy as well as the group of people subjected to the same power they legitimize. This shows us that democratic theory is self-referential since the principle legitimizing political power and the individuals subjected to this power correspond. The problem in this self- referential circuit is that in order to have a steady legitimization principle, you have to answer the question of boundaries. How do you identify the scope of ‘the people’? How do you choose the limits of the constituency? The question of boundaries must necessarily be answered before the question of political legitimacy.

Now, how to delimit the scope of ‘the people’ has also been a harsh debate. In Whelan’s opinion, for example, the boundary question cannot be answered with a democratic process. This line of thought gives rise to what some people consider the greatest paradox of modern democratic theory. For Whelan, as Abizadeh well explains, the ‘boundary problem’ raises when we realize that “democratic theory appears incapable of specifying a political procedure, consistent with its own account of legitimacy, by which the boundaries of the demos can be democratically legitimized.”8 Whelan and others thinkers, then, seem to tend to overlook the issue of boundaries and the legitimization of ‘the people’ to focus on the legitimization of political power.

However, not all political intellectuals share their same belief. In the next section, I shall explore in depth the origins of the paradox Whelan refers to. My analysis will show that this paradox is actually just the consequence of the historical embedment between the demos and the concept of territory. I strongly believe this is a crucial step if we still want to deal democratically with the new global political, social and economic challenges.

1.2 The Paradox of Modern Democratic Theory Disclosed: The Relationship between Demos and Territory

8 Arash Abizadeh, “On the Demos and Its Kin: Nationalism, Democracy and the Boundary Problem”, Americal Political Science Review 106, no. 4 (November 2012): 874.

9 In the previous section, I have claimed that any democratic government must be legitimized by a demos. The latter constitutes, however, a political community whose boundaries cannot be democratically identified. If we follow this reasoning, a legitimization gap opens at the core of democracy itself. In fact, for ‘the people’ to constitute a legitimate source of political power, we first need to determine the scope of the demos. Yet, the scope of ‘the people’ cannot be democratically decided. The apparent impossibility to do so is what give rise to the paradox of modern democratic theory. Is it really impossible to determine democratically the scope of the demos? In order to answer this question, which is pivotal for the remainder of my thesis, I endorse Sofia Näström’s argumentation on the topic. I believe her analysis is so important to approach correctly my thesis that I want to report it in its entirety in this section.

She presents two arguments. The first argument wonders whether a people can voluntarily associate as free and equal individuals. This argument is based on the notion of unanimous consent. However, “in practice no society is founded on the consent of individuals” because a unanimous consent between free and equal individuals is unlikely to occur. Indeed, each individual would probably rely on a personal definition of ‘the people’, which, in turn, would correspond to a different feeling of belonging to a certain political community rather than another.9

Therefore, this first argument seems to deny any feasible solution to the conflict of boundaries. Important authors such as John Rawls and Jürgen Habermas believe that this first argument is nothing but a political ideal.10 If ‘the people’ cannot decide its boundaries on their own, what is left is the assumption of an existing people. In order to interrupt the vicious circuit, in fact, the demos should be prior to itself; it should be decided a priori. Being this the conclusion of the first argument, it is clear that this is not a solution achieved through a democratic process.

Many political thinkers have adopted the premise of the impossibility to identify a people’s boundaries. Among them, there are Frederick Whelan, of course, but also John Rawls, Jürgen Habermas, Seyla Benhabib and Rogers Smith.11 They all believe that “political philosophy is bound to take the existence of society for granted.”12

Her second argument, instead, does not concern the practical unfeasibility of ‘the people’ self-definition, yet its logical impossibility. Let suppose one cast a vote to choose the proper constituency. Furthermore, let assume everyone come and that a unanimous consensus on

9 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 628. 10 See John Rawls, A Theory of Justice, Cambridge: Harvard University Press, 1971, 13; and Jürgen Habermas, “The European Nation-State: On the Past and Future of Sovereignty and Citizenship”, Inclusion of the Other: Studies in Political Theory, Cambridge: MIT Press, 1998, 115-116. 11 See Frederick G. Whelan, “Prologue: Democratic Theory and the Boundary Problem”, Nomos 25 (1983): 16; John Rawls, A Theory of Justice, Cambridge, Harvard University Press, 1971; Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles”, Political Theory 29 (2001): 774; Seyla Benhabib, The Rights of Others, Cambridge: Cambridge University Press, 2004, 15-19; Rogers M. Smith, Stories of Peoplehood: The Politics and Morals ofPolitical Membership, Cambridge: Cambridge University Press, 2003, 154, 158. 12 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 628.

10 who constitutes ‘the people’ is achieved. In this situation, the question of who must be called to vote raises. Even if the ideal situation considered by the first argument occurs, it does not solve the issue of boundaries. In fact, the vicious circuit re-proposes. Therefore, it is clear that “the vote does not concede legitimacy to the people. It presupposes it.”13 Once again, the argument shows that the best solution appears to postulate who is part of the demos.

This second argument is stronger than the first in its claim for the impossibility to democratically individuate the demos’ boundaries because it rules out also the political ideal of ‘the people’ self-determination. The only solution left, Näström continues, may seem for political philosophers to avoid the paradox by implementing external factors to determine a priori the scope of ‘the people’.14

Nevertheless, Sofia Näström has recently challenged this view. She argues that the decision to exclude the demos’ boundaries from the debate of legitimacy and let the scope of it being chosen through the guidelines of the “contingent forces of history” correspond to the rise of modern nation states. Following the historical steps of this process through the lens of the social contract theory, the real conceptual basis for modern democracy, she explains the reasons that took to the tight relationship between the notion of territory and that of demos.15

Becoming aware of the historical value of the relationship between territory and the scope of ‘the people’ is very important for my analysis because it allows me to show the more general relationship between territory and modern democratic thought. This analysis will be helpful later in my argumentation as it gives the basis to counter the classical nation-state view by realizing how much this view is indebted to the notion of territory. In the next section, it will become clear that Näström’s analysis function as first crucial step towards overcoming the nation-state view. In particular, the tight relationship between territory and the answers to the ‘boundary problem’ (cosmopolitan and nationalist views) shall be the topic for my next section but let us focus on Näström’s argument now. Her analysis is twofold.

Firstly, Näström challenges the idea that history may be able to identify ‘the people’. She argues that Burke’s hopeless dereliction to history has taken to the popular solution of the “historical” social contract theory or to the definition of ‘the people’ by mere historical chance.16 Burke, in fact, believes that the political ideal of a free organization of equal individuals is to be re-conducted to an imaginary social contract theory. People are compelled by historical forces that cannot be controlled; they are defenseless subjects of history. In his view, society originates from a contract, yet this is a continuous relationship, which ties together many generations of individuals.17

Such a view, however, justifies any kind of societal governance, included an authoritarian one, because it simply abandons any kind of willingness to change the status quo. In order to avoid these authoritarian tendencies, which in the XVII Century had begun to be questioned

13 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 630. 14 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 631. 15 Sofia Näström, “What Globalization Overshadows”, Political Theory 31, no. 6 (December 2003): 815-821. 16 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 631-633. 17 Edmund Burke, Reflections on the Revolution in France, Oxford: Oxford University Press, 1993, 95-97.

11 along with the divine legitimization of political power and the absolute monarchs, the most popular solution adopted is that of a historically based social agreement.18

Thomas Hobbes, for example, with his Leviathan is one of the first intellectuals to come up with the idea of a social contract theory. He imagines that before society there was a “state of nature”, where all individuals were free and equals. However, the state of nature was also a war state where each one was willing to fight each other. This perpetual state of war is what took people together to form a society with laws to regulate their lives.19

His social contract is different from Burke’s because he thinks of it as a historical agreement that happens at all times within each country. Furthermore, this contract is so powerful that there is no law over it except for the laws of nature. These are crucial differences, which allow Hobbes to circumvent the hopeless abandon to history depicted by Burke.20

Another more recent solution to evade Burke’s trap, instead, endorses the perspective that society is not made through a voluntary agreement between individuals, yet it is given by mere historical chance. This second solution is supported, for example, by Jürgen Habermas.21

Näström criticizes both solutions because they overlook the real “gap at the heart of democracy”: the legitimization of the scope of the demos. Instead of tackling the gap, these solutions simply evade the problem and shift the focus on the legitimization of political power. They simply externalize the issue and let the legitimization of ‘the people’ be “guided by factors independent of the history of legitimacy, such as contingent forces of history.”22 This attempt, however, leads to opposite ideas.

Comparing the arguments for the people’s legitimacy to those of power legitimacy, their logical mistake rises. In fact, to justify political power they rely on the principle of consent, yet when they are asked to justify the scope of ‘the people’ they rely on historical circumstance such as an agreement or a war. Despite the practical outcome of these solutions, the demands for the legitimacy of the scope of ‘the people’ do not vanish.23 As Bernard Yak writes:

Resignation to the contingencies of history does not at all fit with the rhetoric of popular sovereignty. Yet, in effect, that is what many liberal democratic theorists seem to demand from peoples uncomfortable with the shape of their communities: that they should accept whatever potential injustices history has served up to them with the boundaries of states so that we can all get on with the task of establishing liberal democratic forms of government. That this advice almost invariably comes from people who are quite

18 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 631 19 Thomas Hobbes, The Leviathan, Oxford: Oxford University Press, 1996. 20 Ibidem, Chapters XIII and XXX. 21 Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles”, Political Theory 29, no. 6 (2001): 774. 22 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 631. 23 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 633.

12 comfortable and unexposed within the given boundaries of states, people who, in effect, are happy with the partners they were given when the music stopped playing at the dance of history, makes it harder to accept than it would otherwise be.24

This logical gap in their argumentation is mostly evident in later social contract theories such as Locke’s. In his work, in fact, it is evident the process of the division of the social agreement in two distinct contracts.25 One horizontal agreement stipulated among each individual aiming to form the political community, or ‘the people’. The second contract, instead, is vertical and its goal is the establishment of the relationship between ‘the people’ and its ruler.26

If the second kind of agreement is explained at length, the first one is surrounded by uncertainty for there is no explicit, nor distinct identification of the political community he refers to.27 In the state of nature both him and Hobbes, Näström argues, only refer to the idea of a multitude, without ever try to distinguish one multitude from the other.28

Now that the idea that of history may be able to identify ‘the people’ has been disclosed, she can conclude that the idea of the impossibility to democratically identify the boundaries of the demos has just been a clumsy attempt to avoid the real gap at the heart of democracy. Her new proposal shall be presented in the next section. Now, Näström can proceed to the second part of her argumentation. In this part, she focuses on the historical and political reasons why social contract theory generally neglects to justify the legitimization of ‘the people’.

With Locke, she claims, the conception of popular sovereignty, which has progressively substituted the previous absolute kind of sovereignty, probably reaches its greatest definition. In Locke’s historical time, Näström thinks that the legitimization of ‘the people’ is not a central focus of investigation because the scope of ‘the people’ is given by the territorial boundaries of the rising nation-state. When the French Revolution strikes and the absolute sovereignty is definitely abandoned, what we now call nation-states were finally consolidated. Many political thinkers of the period take advantage of this political and historical change and implicitly find their solution both to ‘the people’ legitimacy and to the power legitimacy in the concept of nation-state.29 As Held often remarks in his arguments, modern democracies heavily depend on the notion of territorial nation-states.30

24 Bernard Yack, “Popular Sovereignty and Nationalism”, Political Theory 29, no. 4 (2001): 529. 25 There is an on-going academic debate whether Locke identifies one or two kind of contracts, which I cannot face in this essay. If you are interested in the debate, however, the two contract theory is supported by Hannah Arendt, “Civil Disobedience”, in Crisis of the Republic, New York: Harcourt Brace Jovanovich, 1972; and Samuel Pufendorf, On the Duty of Man and Citizens, Cambridge: Cambridge University Press, Book II, Ch. 6, 1991. 26 John Locke, Two Treatises on Government, London: printed for R. Butler, 1821. Bartley.com, 2010. www.bartley.com/169/. 27 Ibidem, Second Treatise on Government, p. 331 28 Sofia Näström, “The Legitimacy of People”, Political Theory 35, no. 5 (2007): 638. 29 Sofia Näström, “What Globalization Overshadows”, Political Theory 31, no. 6 (December 2003): 816. 30 David Held, “The Transformation of Political Community: Rethinking Democracy in the Context of Globalization”, Democracy’s Edges, Cambridge: Cambridge University Press, 1998, 106.

13 The reason of the value of nation-states for democratic theory is clear, and Näström highlights it. She argues that the notion of nation-states has been the perfect move to solve both legitimizing issues at once. The nation-state, in fact, furnishes the identification of ‘the people’ boundaries throughout the correspondence of the scope of it with territorial borders of the country. Furthermore, it provides an indirect source of political authority. As Näström explains, the concept of nation-state is “abstract enough to bestow legitimacy upon ‘the people’ without falling victim of the petitio principii inherent in the foundation of democracy. The reason is that the nation is ‘the people’ prior to the foundation of democracy.” From that moment on, she concludes, the notion of nation-state becomes embedded with that of ‘the people’.31

I believe this argument has a twofold importance. First, despite temporarily filling the gap at the core of democratic theory, the concept of nation-state, being an external factor to identify ‘the people’, is subjected to the forces of history. Therefore, as I showed earlier it does not really solve the ‘boundary problem’ because it just never really explains how the demos is to be identified in the first place. The question of boundaries to identify a particular community then is persisting.

Second, it shows that the relationship between nation-states and the demos to identify a political community rely on the common notion of territory since it depends on the existing nation boundaries. Nowadays, however, this very close relationship between the concept of territory and that of demos, mediated by the notion of nation-states, is under the constant pressure of globalizing processes.

In the next section, I shall focus on globalization and how it has re-opened the legitimization crisis at the heart of modern democratic thought. I claim that globalization has brought the political debate back to talk about the people’s boundaries because it questions the notion of territory. My analysis, in turn, shall highlight the necessity to re-think our conception of political community, which, as Näström very well explains, highly rely on the notion of territory. Finally, I shall put forward Näström’s proposal to find the roots for a new conception of demos.

1.3 Globalization and the Necessity to Re-Think Our Conception of Political Community

In my opinion, there is a general confusion on what globalization is. Often, a proper definition of the term is troublesome because of the many facets it involves; therefore, I want to give my own definition. Globalization is an on-going process, which indicates the general internationalizing drive concerning social, political and economic spheres. Generally, it indicates a trend of growing worldwide interactions between individuals but also political and economic agents.

31 Sofia Näström, “What Globalization Overshadows”, Political Theory 31, no. 6 (December 2003): 818.

14 One of the main feature of globalization is de-territorialization. As the word says, de- territorialization is the process of extrapolating concepts and ideas connected to a delimited territory in order to transplant the same on an international and worldwide level. This process, basically, entails that geographical boundaries are not as important as they were before.32

For example, on the economic sphere, an integrated global economy has been increasingly implemented. A global economy has been especially favored by free trade, free flow of capital and the tapper of cheaper foreign labour market. The component of de- territorialization within globalization is very important for my enquiry, especially on its political level. For centuries, in fact, as I showed in the previous section, modern democratic thought has been counting on the notion of territorial nation-states to fill the legitimization gap at the heart of democratic theory.

However, with the on-going process of globalization, the concept of nation-state as well as that of territory are becoming troublesome. Globalizing tendencies look at the world without constrains of some physical limitation such as that of national borders. As Scheuerman notices, the self-evidence of nation-states as “self-sufficient schemes of cooperation for all the essential purposes of human life” has been widely questioned.33

On a political level, there is also the feeling that political decisions are pouring outside national borders.34 As David Held well explains:

Territorial boundaries specify the basis on which individuals are included and excluded from participation in decisions affecting their lives (however limited the participation might be), but the outcomes of these decisions, and the decisions of those in other political communities and agencies, often stretch beyond national frontiers. The implications of this are troubling, not only for the categories of consent and legitimacy, but for all the key ideas of democracy.35

I think Held’s citation catches very well the impossibility for democracy to depend on a conception of demos, which highly rely on the notion of territory. As I showed in the previous section, nation-states and ‘the people’ are concepts that become embedded right through the concept of territory.

Therefore, as Näström notices, the tension between nation-states, which rely on the notion of territory, and globalization, which instead is a de-territorialized process, raises the

32 William E. Scheuerman, “Globalization”, The Stanford Encyclopedia of Philosophy (Summer 2014). 33 William E. Scheuerman, Liberal Democracy and the Social Acceleration of Time, Baltimore: Johns Hopkins Press, 2004. 34 For further discussion on the tension between nation-states and globalization, I suggest the following readings: -David Held, “Regulating Globalization? The Reinvention of Politics”, International Sociology 15, no. 2 (2000): 394-408. -Michael Mann, “Has Globalization Ended the Rise and the Rise of Nation-State?”, Review of International Political Economy 4, no. 3 (1997): 472-496. -Susan Strange, The Retreat of the State. The Diffusion of Power in the World Economy. Cambridge: Cambridge University Press, 1996. 35 David Held, Models of Democracy, Cambridge, UK: Polity, 1996, 338.

15 issue of re-thinking the modern notion of political community. With globalization, the gap at the basis of democratic thought, the identification of the scope of the people, is found to have “remained open all along”.36 I believe this section of Näström’s analysis is pivotal to expand my thesis in the next chapters because she opens to the possibility of individuating a different kind of demos than the one corresponding to a particular nation-state. This helps greatly my analysis on the opportunity to involve multiple agents in the decision-making process, also allowing me to legitimize the work of their representatives.

If we cannot rely anymore on the notion of nation-states to identify the scope of ‘the people’, and we cannot legitimize the scope of ‘the people’ recurring to the contingency forces of history, what alternative do we have to fill the hiatus nation-states are leaving behind?

Usually, globalization processes are blamed for the interruption of the bond between territorial nation-states and political community. However, as Sofia Näström notices “it is one thing to argue that globalization has opened the door to a problem within modern political thought, quite another to argue that globalization is the origin of this problem.” She argues that the problem has not been caused by globalization; the problem has always been there and it is related to the very core of democratic theory. The issue that modern political thought is facing, she concludes, is not globalization, but rather the struggle in providing a feasible response to globalization.37

In this panorama, she suggests that the answer to globalization may be found within the very same concept of globalization. The necessity to re-think our political community may be adapted to the new de-territorialized world we live in. Her option is the exploration of a de- territorialized understanding of the legitimacy issue. She proposes to keep the gap at the heart of democratic thought continuously open.38

This solution would be beneficial because it recognizes that “there is no perfect symmetry between ‘the people’ and its legitimacy.” It would have, then, the positive outcome of determining the scope of demos in a more democratic way. This acknowledgement would highlight the necessity to develop a kind of demos whose boundaries vary with the question we want to ask.39

In practice, however, this may be a very difficult task because it implies the necessity to change the constituency every time we face a problem and because it would be demanding to individuate the proper constituency each time. In addition, this process in a globalized world could entail the possibility of a cosmopolitan constituency, which groups together all individuals in the world. This is a scenario hardly feasible without a global governance.

This section has highlighted the reason why the question of the ‘boundary problem’ has been avoided for such a long time. Globalization has eventually put back at the centre of the

36 Sofia Näström, “What Globalization Overshadows”, Political Theory 31, no. 6 (December 2003): 819. 37 Ibidem, 811. 38 Ibidem, 829. 39 Ibidem, 829.

16 discussion the concept of demos and the necessity to find a feasible answer to this issue, too long avoided by political thought.

Perhaps you are wondering how this discussion is related to migration. I think that migration is the perfect globalizing social phenomenon to analyse the possibility proposed by Näström. In particular, the study of migration is rather useful because it allows me to examine how different answers to the issue of constituency may affect migration policies and their legitimization. I shall come to that in the next chapter where I shall also introduce what migration is, and the so-called ‘migrants crisis’ Europe is currently facing.

17 CHAPTER II

Migration Policies and the ‘European Migrant Crisis’

2.1 Migration, Nation-States Policies and The Quest for Control

As briefly described in the first chapter, globalization affects many spheres, from the economic to the political one. It also affects the social sphere, and I am particularly interested in the social phenomenon of migration which globalization has highly exacerbated. Before proceeding with my argumentation, let me define the term.

I define ‘migration’ as the movement of a person or a group of people who leave their place of origin to settle in another country. This movement implies the crossing of political and administrative boundaries. There are many kind of migration; it can be temporal or permanent, voluntary of forced. Migration is certainly not a new concept; historically speaking people have always had migratory lifestyles.

In the history of man, there have been several migration processes, all of which were caused by particular events during those times. For a long time, migration trends have been thought to be determined by market forces.40 This conception has been suggested mainly by neoclassical migration theorists, who have argued that this is how the market works. They have also conveyed the idea that nation-state actions towards migration were merely distortion of the free market, which has often been affected negatively by these interventions.41

However, as Stephen Castles suggests, the truth is that nation-states have long tried to regulate migration trends. He argues that governments have perpetuated several attempts to control migration by implementing border controls to impede the departure of people from their territory, or otherwise forced people outside their territories. Some examples may be the XX Century European fascist regimes, or the Cuban isolationist model, which began to fade only a few years ago, in 2014. More generally, nation-states policies have affected migration trends because of the wide interest in who enters and who exits their borders.42

Nation-states have long attempted to control migration(s) for serving their interests. This is clear, for example, in the control national government had over cheap labour recruitment. The first control attempts date back to the ancient times when conquests were motivated by

40 Here the word “market forces” is intended in a broader sense than the meaning usually given to it by economists. It refers to the market society as a whole, not only to the market economy. Therefore, it does not only include the rules of market economy, but other factors such as life quality, political conditions, immigration policies, income opportunity, etc. 41 See for example, George J. Borjas, “Economic Theory and International Migration”, The International Migration Review 23, n. 3 (1989): 457-485. 42 Stephen Castles, “The Factor That Make and Unmake Migration Policies”, The International Migration Review 38, no. 3 (Fall 2004): 855.

18 the acquisition of cheap labour workers under the name of slavery. More recently, the control of cheap labour has carried on with the slave trade from colonies to settler states.43

After the abolition of slavery, however, Castles argues that the system of cheap labour control has radically changed. Although governments’ quest for migration control has not vanished, migration has now become mostly voluntary and coordinated by employers, instead of states. The most famous example is probably that of the Industrial Revolution where most of the employees were actually underpaid migrants.44 What caused this paradigmatic shift?

The answer is globalization. With globalization, the migration control perpetuated by nation-states has transferred from a national to an international level. By 1990s, in fact, migration has been concerning “problems affecting relations between states, including questions of war and peace.”45 Furthermore, the quest for migration control intensified worldwide in 2001 after the fall of the Twin Towers. Surely, the focus on migration control and safety enhanced after that event, but as Castles suggests, “the perception of migration as a security issue goes back much further.”46

Probably the most relevant example of such attempts is that of European Union (EU). Since its creation, EU has been trying to apply a supranational regulation system to better control international migration through the implementation of the Schengen Agreement (1985) and the Amsterdam Treaty (1997). The former created a common area of movement where border controls have been gradually eliminated, whereas the latter adopted a European policy for migration and asylum seekers.

Nevertheless, it has not been easy to control migration trends because the factors influencing migration are various. Furthermore, as I mentioned in the previous chapter, globalization is challenging any conception based on the notion of territory, included those international social and economic cooperation between nation-states such as the EU. Therefore, I think it would be fruitful to dig deeper into the principal features of migration in order to make explicit the challenges migration poses on a political level. This is what I shall do in the next section.

2.2 Globalization and the Necessity to Re-Think Our Decision-Making Process

Castles identifies two central elements in modern migration processes. Their understanding may help my intuition that, along with the political community, it is also necessary to change the decision-making process of migration policies. The analysis of these elements shall highlight the inefficacy of national or territorial migration policies. This study

43 Ibidem, 855. 44 Ibidem, 855. 45 W. Cornelius, P.L. Martin and J.F.Hollifield, “Introduction: The Ambivalent Quest for Control”, in Controlling Immigration: A Global Perspective, Standford, CA: Standford University Press, 1994, 7. 46 Stephen Castles, “The Factor That Make and Unmake Migration Policies”, The International Migration Review 38, no. 3 (Fall 2004): 857.

19 shall raise, therefore, the necessity to re-think and probably enlarge the decision-making process that take to the implementation of migration policies.

On the one hand, migration is to be acknowledged as a social phenomenon with its own dynamics. He explains that three migration principles must be taken into consideration. The value of ‘migrant agency’, which highlight the sociological and anthropological aspect of migrants. Migrants are, in fact, “social beings who seek to achieve better outcomes for themselves, their families and their communities by actively shaping the migratory process.”47 The second principle is “the self-sustaining nature of migratory processes”, and the third is the basic dependence of immigration and emigration countries on the migration practice once it has started.48

The first principle points towards the identification of migrants as social agents who do not decide to move for no reason. There must be some factors, which push them to migrate in the first place. Two main factors may be identified: one is economic and the other is socio- political, even if the two often overlap, I shall consider them as distinct elements for the moment.49

The latter concerns all those people who migrate for socio-political reasons, the so-called ‘refugees’. Someone may move because he/she is “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and he/she is afraid or unwilling to seek the protection of the country he/she is from or the one he/she is residing.50 This standard definition of the term has been later enlarged by EU, for example, to include also all those people, who flee war-caused violence or those who returning to their home countries would be exposed to inhuman or degrading treatments such as torture or death penalty.51

The former factor, instead, concerns the so-called ‘economic migrants’ who are people moving “from one country to another to advance their economic and professional status.”52 Their move is grounded on economic reasons and the term is usually referred to those people who move from South to North parts of the world. The relationship between North and South is a very important for my analysis, and I shall better explain it when I confront the second element that Castles identifies.

47 Ibidem, 260. 48 Ibidem, 270. 49 Mervyn Piesse, “Factors influencing migration and population movements”, in Future Direction International (October 2014). http://www.futuredirections.org.au/publication/factors-influencing-migration-and-population- movements/ 50 This definition of refugee may be found in the Article 1.A.2 of the UN 1951 Refugee Convention and its Protocol (1967). 51 Art 2.C of Council Directive 2004/83/EC of 29th of April 2004 and later substituted by Council Directive 2011/95/EU of 13th December 2011. 52 Jan Semmelroggen, “The difference between asylum seekers, refugees and economic migrants”, in Independent (August 2015). https://www.independent.co.uk/news/world/europe/the-difference-between- asylum-seekers-refugees-and-economic-migrants-10460431.html

20 For now, I shall define what Castles intends for North-South pats of the world. For him, this connection does not indicate “a geographical configuration, but a political and social one. The North also includes areas and groups subject to social exclusion, while the South has elite groups and enclaves, which enjoy considerable prosperity. There are also important regions and groups in intermediate or transitional positions.” Among the North countries, he inserts North America, Western Europe, Japan, Australia and New Zealand, while among the South countries there are “the poorer countries of Africa, Asia and Latin America.”53

The second and the third principles, instead, indicate a general difficulty in exiting the migratory process once it begins. This is compelling both for nation-states, which can be emigration or immigration countries, and migrants themselves, who once they start moving, a self-sustaining process of migration begins as well. These features highlight the dependency relationship that is born between emigrant and immigrant countries as well as that among migrants themselves.

On the other hand, the second element Castles identifies is the understanding of contemporary migrations as an intrinsic phase of the development of relationships between the North and the South part of the World. He claims “policy in this area are doomed to fail unless it addresses the causes of both economic and forced migration in current patterns of global inequality. Globalization contains the inherent contradiction of producing a North- South gap and the technological and cultural means of overcoming this gap. Migration networks based on transnational dynamics will undermine migration control as long as it is based on a narrow national logic.”54 Let me articulate what he intends with these words.

As I have showed in the first chapter with Näström, Castles as well believes that globalization has exacerbate a conflict of interests, which was already there. For Castles, the conflict globalization highlights, however, is not about the legitimacy of the scope of the demos and the consequent legitimacy issue for national policies it entails, yet about the efficacy of such policies.

What migration processes overshadow, for him, is a major conflict between North and South countries. Nowadays, he believes, the pivotal international “borders are no longer between nation-states, but between North and South.”55 As Zolberg claims, in fact, borders are nowadays meant to preserve the economic and social inequality between North and South countries.56

This relationship between North-South of the world is also the reason why it is becoming difficult to separate between ‘economic migrants’ and ‘refugees’. Certain areas of the South, in fact, are growing detached from global economy, and this situation drives to economic stasis and war conflicts. These circumstances, in turn, lead to migrations driven by the

53 Stephen Castles, “The Factor That Make and Unmake Migration Policies”, The International Migration Review 38, no. 3 (Fall 2004): 862. 54 Ibidem, 871. 55 Ibidem, 862. 56 Aristide R. Zolberg, “The Next Waves: Migration Theory for a Changing World”, International Migration Review 23, no. 3 (1989): 406.

21 necessity to flee poverty and human rights violations.57 It is clear that social, economic and political factors merge within the more general distinction between North and South of the World. In order to be effective, therefore, migration policies need to understand and direct their efforts at the causes that lead both economic and forced migrants to move in the first place.

Furthermore, this reasoning shows a second feature that can be underlined within Castles’ words. The social, economic and political causes that lead to migrations are worldwide processes that cannot be efficiently faced on a national level. As Castles notices, in fact, a valuable reason for the inadequacy of modern migration policies is the “contradiction between national logic of migration control and the transnational logic of international migration in an epoch of globalization.”58 I believe it is preposterous to think a nation-state alone may engage with such task. As I shall show in the next section of this chapter, it is hard as well for a cooperation of nation-states such as the EU.

Based on these elements, I can conclude that not only is it necessary the re-thinking of our political community as I showed in the first chapter. Yet, the decision-making process of migration policies is to be renewed as well and probably enlarged because nation-state policies lack not only legitimacy, but also efficacy. We are in need of new and more comprehensive ways of decision-making.

In order to reduce the scope of my enquiry, from now on, I shall focus on a specific migration process. This process has been interesting Europe since 2015 and it is usually referred to as the ‘European migrants crisis’. In the next section I shall introduce this migration process and highlight what I think is the challenge this migration process represents for democratic theory.

2.3 The ‘European Migrant Crisis’: A New Challenge for Democratic Theory

The term ‘migration crisis’ is a highly disputable expression. It usually refers to the on- going process that Europe is experiencing. Migration waves have always affected Europe, yet from the year 2015 the number of people trying to reach Europe has drastically increased. The International Organization of Migration (IOM) assesses that about more than 1 Million migrants arrived in Europe in 2015, while only 280 thousands arrivals were registered the year before (2014).59

In 2016, the number of migrants who arrived in Europe has slightly decreased of about half million. Most of migrants reach Europe through the Mediterranean region (about 390

57 For a detailed analysis on this, you may read: Manuel Castells, End of Millennium, Oxford: Blackwell, 1998 and Mark Duffield, Global Governance and the New Wars: The Merging of Development and Security, London and New York: Zed Books, 2001. 58 Stephen Castles, “The Factor That Make and Unmake Migration Policies”, The International Migration Review 38, no. 3 (Fall 2004): 854. 59 These figures do not include those who entered Europe undetected. International Organization of Migration (2017), World Migration Report 2018, United Nations, New York, http://dx.doi.org/10.18356/f45862f3-en.

22 thousand), yet over 360 thousand of them arrived by sea. The route migrants engage in is very dangerous with estimates of over 4,500 fatalities and missing migrants only in 2016.60 These numbers are worrisome.

Furthermore, the situation is challenging because within the EU some governments want greater borders control to contain the migration waves, perhaps through the implementation of a common border law enforcement. On the other hand, some others propose integration policies and cooperation with the migrants’ country of origins. In any case, from the second half of the 2015, some EU Member States have also temporarily reintroduced borders control within the Schengen Area.61

In this context, someone argues that the EU is struggling to cope with these migration waves therefore, the term ‘crisis’ is meant to emphasise the arduous situation. I think the term ‘crisis’ is appropriate to describe today’s circumstances, not because of the allegedly incapability of EU institutions to cope with the issue of migration, yet because of the challenge that the ‘European migrant crisis’ entails for democratic thought.

Although it is undoubted that the context Europe is experiencing is extremely challenging under various aspects, I believe the major difficulties to organize efficient migration policies derives from a political deficiency concerning democratic theory. Especially, its dependence both of the legitimization and the efficacy of migration policies on the notion of territory, whether it is on a national level or on a supranational level such as that of the EU.

In the previous sections, I have shown the importance of territory for modern democratic theory and how globalization is exercising pressure to any conception related to that of territory. In the first chapter, endorsing Näström’s analysis, I argued that this process is undermining our common notion of political community, understood as territorial nation-state demos, upon which democratic theory has been relying on since the French Revolution.

Furthermore, in the last section of this chapter, I have highlighted how the new globalized migration weakens the power of migration policies unilaterally implemented by nation-states. I stated, therefore, that in my opinion a new process of decision-making is necessary to be adopted. In this last section, I shall relate the migration process, in particular the ‘European migrant crisis’ to the ‘boundary problem’, which I have introduced at the beginning of the first chapter.

Of course, Europe has been experiencing several migratory processes during history, yet this one is particularly important because it comes in a time of change for the common notion of political community (demos). This situation, in turn, raises many questions concerning the legitimacy of migration policies undertaken unilaterally by nation-states as well as their efficacy. Whether a nation-state or the EU opts for a closed or open borders policy, the issues raised by this situation definitely need a further analysis.

60 Ibidem. 61 Schengen Area, European Commission, Migration and Home Affairs. Available from https://ec.europa.eu/ home-affairs/what-we-do/policies/borders-and-visas/schengen_en.

23 As the ‘boundary problem’ shows, the legitimization process is influenced by the demos we decide to endorse as basis for our political community whose individuation is the political precondition for democracy. Therefore, depending on the different answers to the ‘boundary problem’, different migration policies may be legitimized and therefore implemented. As I showed, determining the scope of ‘the people’ affects the territorial rights of nation-states, which, in turn, affect the legitimization of migration policies.

The new challenge represented by the ‘European migrants crisis’, then, is that of legitimizing and implementing a decision-making process which involves not only the EU citizens or its Member States, yet also the neighboring countries as well as what I shall call ‘the people of migrants’.62 In order to argue for such a thesis, I shall take into consideration the possible answers to the ‘boundary problem’ and show that they both contemplate a representation, more or less influential, of the neighboring countries and of ‘the people of migrants’.

Two main answers have been given to the ‘boundary problem’. One is named nationalist view and the other is known as the cosmopolitan perspective. The former holds that the demos should be limited by an external source of legitimization that of existing nation-states borders. With regard to this view, I shall take into account David Miller’s position who is a supporter of this position.63

On the other hand, the latter view sustains that in principle the demos is unbounded. In particular, I shall analyse Arash Abizadeh’s position on the matter who defends the second perspective.64 In the following two chapters, I analyse each answer to the boundary problem and examine whether my thesis is supported by their proposals. I shall begin with Abizadeh’s cosmopolitan theory.

62 The term refers to the aggregation of both ‘refugees’ as well as ‘economic migrants’. 63 David Miller, “Democracy’s Domain”, Phiosophy and Public Affairs 37, no. 3 (2009): 201-228. 64 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 37-65.

24 CHAPTER III

Migration Policies: a New Legitimization

3.1 Abizadeh’s Answer to the ‘Boundary Problem’: the “Unbounded People Thesis” and the “All-Subjected Principle”

As I showed in the first chapter, democratic governments are legitimized by the demos. This notion, however, may have different interpretations. I argued that since the rise of globalization, political theorists could not rely on a notion of demos determined by territorial boundaries. This excludes all demoi based on a national construction, and opens to the necessity of a democratic legitimization of ‘the people’. This is particularly important for the topic of migration because migration policies within democracies are indirectly legitimized by the demos.

The demos, through the ballot, elects its representatives giving legitimization to the democratic government they constitute. The latter, in turn, issues laws and directives that influence and control migration. Therefore, the legitimization of migration policies is indirectly determined by the demos chosen as constituency. If we cannot rely on territorial boundaries to choose democratically the proper constituency, what other formula can we use?

Arash Abizadeh, who is part of the cosmopolitan perspective, tries to answer this question by providing a different answer to the ‘boundary problem’. He argues that, in principle, the demos is unbounded. Let me explain what the ‘unbounded demos thesis’ is and how Abizadeh argues for it.

The unbounded demos thesis is a conceptual, a priori claim about an essential characteristic of the demos. Abizadeh specifies that this thesis is neither normative nor empirical, yet it refers to the term demos as intended by the principle of legitimization used in normative democratic theory. The principle of legitimization is the justification owed to the demos upon which political power is exercised. In particular, he supports his thesis by a demonstration of incoherence of the opposite thesis – that is the demos is intrinsically bounded. Abizadeh develops a twofold argumentation to prove this.65

Firstly, if you assume a demos to be bounded, you have to be able to identify those people who may legitimately participate to the exercise of democratic power. However, Abizadeh continues, this process of identification cannot be decided by a “principle of participation” because the question of who should take part in the decision process to settle such principle rises again, forming a vicious circuit. It is clear that the membership to a certain “people” cannot be democratically decided, it is to be decided a priori. As Abizadeh writes,

65 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 45.

25 “democratic theory is incapable of legitimizing the particular boundaries that, once we assume the demos is inherently bounded, it presupposes.”66

Likewise, his second argument encounters the same problem with regard to another essential principle for democratic theory, the principle of legitimization for borders. As Näström’s analysis shows in the first chapter, the identification of a demos through territorial confines is determined by historical forces. Therefore, the scope of ‘the people’ cannot be legitimized within democratic theory by the border principle either, an external factor is needed.67

Abizadeh concludes that the ‘inherently bounded thesis’ is unsatisfactory because it conveys a theory of political legitimacy that is logically incoherent. The two arguments above show how the bounded thesis involves the acceptance of conflicting propositions regarding political legitimacy. If the bounded demos thesis is incoherent, the only alternative is its opposite, “that the demos is in principle unbounded”.68

The source of this inconsistency, Abizadeh argues, is to be found into an erroneous interpretation of the principle of democratic legitimacy. The bounded thesis presumes political power to be democratically justified only if its exercise coincide to the will of a pre- politically formed people.69 This means that the answer to who ‘the people’ is must be prior to political legitimization. Democratic theory is incapable of furnishing an answer to this problem so it must presuppose it. This is the source of incoherence of the bounded thesis.70

During his argumentation, Abizadeh notices that borders are one of the key forms that political power has to exercise coercion over individuals. Decisions about who is able to enter and who is not, as well as who is a member and who is not, are core features of the exercise of the political power. Henceforth, Abizadeh thinks that the control over such decisions must be as democratic as possible considering that historical forces determine territorial boundaries. Imposing confines is an use of power over two factions, the insiders and the outsiders, yet the borders control legitimization is owed to one faction only, the former one.71 As he explains then:

The point is that, by its very nature, the question of boundaries poses an externality problem: while democracy claims to legitimate the exercise of political power by reference to those over whom power is exercised, civic boundaries, which by definition

66 Ibidem, 46. 67 Ibidem, 46. 68 Ibidem, 48. 69 To explore this critique further, you may see Jürgen Habermas, “Appendix I. Popular Sovereignty as Procedure,” in Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: Polity Press, 1996: 463-490; and James Bohman, “From Demos to Demoi,” Ratio Juris 18, no. 3 (2005): 296. 70 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 47. 71 Ibidem, 46

26 distinguish between members and nonmembers, are always instances of power exercised both over members and nonmembers — and nonmembers are precisely those whose will, views, or interests the bounded democratic polity claims to be able legitimately to ignore.72

The only possibility then is to abandon the conception of pre-politically constituted demos. Näström also argues for such abandonment as I showed in the first chapter, yet she does not provide a feasible replacement. Abizadeh, instead, tries to introduce an alternative interpretation of the principle of democratic theory: “the view that political power is legitimate only insofar as its exercise is mutually justified by and to those subject to it, in a manner consistent with their freedom and equality.” Following Abizadeh’s reasoning then the answer to the ‘boundary problem’ is that “the principle of legitimization extends as far as practices of mutual justifications can go, which is to say that the demos is in principle unbounded.”73

Abizadeh’s unbounded demos thesis is a game-changing breakthrough for my thesis. His theory, in fact, poses the theoretical bases to democratically legitimize a larger decision- making process, which does not allocate every single national state as the only agent responsible in determining its own migration policies. The ‘European migrants crisis’ is, in my opinion, one of the main socio-political factors that helped challenging this false premise used by national states to control migration patterns.

There is, however, a main issue concerning the ‘unbounded people thesis’, that of its application. If the demos is unbounded, how do you choose who participate in the decision- making process? It seems that this thesis may as well fall into the same vicious circuit of the bounded thesis. The feasibility of such thesis depend on the principle chosen to delimit the constituency’s boundaries. Henceforth, it is extremely important for my argumentation to individuate a principle, which is a decision-independent criterion. This would prevent the problems of other cosmopolitan principles such as the all-inclusive principle or the all- affected principle.74

I believe this principle to be the all-subjected principle. Abizadeh as well proposes this new criterion of decision. The all-subjected principle differs from the others because it derives from the application of the democratic principle of legitimacy to the very core of political boundaries. The democratic principle of legitimacy demands, “that political power be

72 Ibidem, 46. 73 Ibidem, 48. 74 For a discussion and critique of the all-inclusive principle and the all-affected principle, see Michael Saward, “A Critique of Held,” in Global Democracy. Key Debates, edited by B. Holden, London: Routledge, 2000 and Sofia Näström, “What globalization overshadows,” Political Theory 31, no. 6 (2003).

27 legitimized to everyone subjected to it, to the constitution of political boundaries—which always subject both insiders and outsiders.”75

If the affection of someone’s interests may grant some moral rights such as the prevention of harm or the compensation to it, it does not allocate the political right to be part of the decision-making process.76 As Abizadeh points out the all-subjected principle, instead, being rooted on the democratic ideal of collective self-rule, depends on the ideas of individuals’ autonomy and equality protection. This being the case, it is clear that the unilateral subjection to a coercive political power without any possibility to a democratic say does violate the principle of protection of individuals’ autonomy and equality. This means that being part of the demos is intrinsically grounded on the individuals’ status of autonomy and equality.77

Abizadeh concludes stating that democratic self-rule requires the exercise of political power to be conformed to the collective will of all those subjected to it. Furthermore, for the same reasons, all those who are subjected to the exercise of political power have also the right to a democratic say.78

At this point, it is important to define what Abizadeh intends with the term ‘subjection’. To be significant to individuals’ protection of autonomy and equality, “it is sufficient that the state subjects them to coercion—to direct physical force, invigilation via agents authorized to use physical force, and threat of punitive harm—or to coercively undergirded symbolic processes of socialization and identity formation.” 79 I shall further explain the definition of coercion later on since it is a key factor in this analysis.

According to this definition, then, migration policies are to be justified not only to the neighboring countries, yet also to what I named the ‘people of migrants’ since European migration policies subject to coercion these people. Migration policies, in fact, do subject migrants to coercion by affecting their autonomy and equality. I will explore more in depth this topic in the third section of this chapter.

It is clear now that the all-subjected principle does not depend on externalities such as national boundaries to delimit the area of exercise of political power, nor depends on a pre- political community as constituency for the considered issue. I can conclude, then, that it is a decision-independent criterion for two main reasons. First, it furnishes a democratic principle to identify ‘the people’, which does not pre-politically choose the right constituency. The political community changes with the issue at stake following a political argumentation of the problem. Second, it provides a well-defined principle to identify the right constituency such as being subject to coercion as it is provided in the definition above.

75 Arash Abizadeh, “On the Demos and Its Kin: Nationalism, Democracy and the Boundary Problem,” American Political Science Review 106, no. 4 (November 2012): 868. 76 Ludvig Beckman, The Frontiers of Democracy, Basingstoke: Palgrave Macmillan, 2009, 46-47. 77 Arash Abizadeh, “On the Demos and Its Kin: Nationalism, Democracy and the Boundary Problem,” American Political Science Review 106, no. 4 (November 2012): 878. 78 Ibidem, 878. 79 Ibidem, 878.

28 Now that I explained Abizadeh’s answer to the ‘boundary problem’, I can focus on its importance for migration and the consequences it entails for migration policies, especially considering EU position in the ‘European migrants crisis’. In the next section, I will explore the consequences and issues of the application of Abizadeh’s all-subjected principle. In particular, I will conclude my argumentation against the traditional state sovereignty view, showing how Abizadeh’s theory involves not only a justification to nonmembers, yet also a co-participation of different agencies in the decision-making for migration policies.

3.2 From a State Sovereignty View to a Different and More Democratic Decision-Making Process

The current leading position of contemporary nation-state system is the state sovereignty view. This perspective holds that entry policies are independently controlled by the particular state involved, and indirectly by ‘the people’ that elects the government, the state’s members. Furthermore, a political legitimization of such decisions is owed only to the latter; foreigners are excluded from the decision-making process.80

According to this view, on the one hand, Bulgaria, which is an EU Member State (MS), can rightfully and independently decide to close its borders with Turkey, which instead is a neighboring country that is not part of the EU. On the other hand, borders control between EU Member States, instead, are regulated by the Amsterdam Treaty, which has incorporated the Schengen treaties into European Union Law in 1999.

The Schengen Agreement was signed in 1985; it proposed measures to be implemented in order to gradually abolish EU internal border controls and promote freedom of movement of both goods and people within the so-called Schengen Area. The Schengen Convention supplemented the Agreement in 1990 by proposing the complete abolishment of internal borders control and a common European visa policy. Today, the Schengen Area is composed of 26 countries and legally oblige the MS to comply with these treaties.81

Nevertheless, since 2016 because of the ‘European migrants crisis’, some EU Member States have reintroduced internal border controls. Among them, there are Austria, Denmark, France, Germany, Norway, Poland and Sweden. Both positions, and ultimately the state sovereignty view, are supported by the same thesis — that demos is inherently bounded.

80 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 37-38. 81 See European Union: Council of the European Union, Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities and Related Acts, 10 November 1997, available at https://refworld.org/docid/51c009ec4.html and European Union, Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders (“Schengen Implementation Agreement”), 19 June 1990, available at: https://www.refworld.org/docid/3ae6b38a20.html .

29 Let suppose that democratic theory needs the presence of boundaries to identify different political jurisdictions. These represent particular political communities where it is possible to distinguish between members and nonmembers. In Whelan’s opinion, for example, “democracy requires that people be divided into peoples.”82

Even if that were true, the inherently bounded thesis does not claim anything about what sort of border control (open, porous, or closed) it demands, nor about who controls the border policy. Therefore, it is clear that to defend the right to unilaterally control one’s borders as described in the examples above, another argument is needed. As Abizadeh notices, this argument appeals to the principle of self-determination, which compels to unilateral border control.83 Frederick Whelan and Michael Walzer support this view, for example.84

It is clear that in order to support my thesis and legitimize a larger decision-making process involving MS, neighboring countries and the ‘people of migrants’ for migration policies, I need to challenge the state sovereignty view. As I just explained, this view is rooted on two ideas, the bounded demos thesis and the principle of self-determination. Endorsing Abizadeh’s analysis, I argued in the first section of this chapter for the logical incoherence of the former one (inherently bounded thesis) in relationship to the democratic principle of legitimization concluding that political power must be justified to members and nonmembers.

Now, I also need to challenge the principle of self-determination. I previously showed how Abizadeh argued that some nonmembers, according to the all-subjected principle, have the political right to a democratic say in the matter of border policies because these somehow coerce them by affecting their status of autonomous and equal people. This conclusion, however, may be disputed by the second idea upon which the state sovereign view relies to compel unilateral border control.

This idea is the principle of self-determination and I need to challenge it to aim at the replacement of the state sovereignty view. As a result, one of the main consequences of the all-subjected principle for migration policies, which require a shared control of border policies among members and nonmembers, would be easier to accept. Let now examine the principle of self-determination.

The self-determination principle holds that a people has the right to choose freely their sovereignty and international political status with no interference, or without external compulsion. In particular, this extends to the right to unilaterally control one’s borders for the preservation of a group’s identity, culture, etc. Walzer describes this as the right to maintain a “community of character” with its own peculiar lifestyle.85 The impossibility to close its own

82 Frederick Whelan, “Citizenship and Freedom of Movement: an Open Admission Policy?,” in Open Borders? Closed Societies? : The Ethical and Political Issues, edited by Mark Gibney, New York: Greenwood Press, 1988, p. 28. 83 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 43. 84 See Frederick Whelan, “Citizenship and Freedom of Movement: an Open Admission Policy?,” in Open Borders? Closed Societies? : The Ethical and Political Issues, edited by Mark Gibney, New York: Greenwood Press, 1988, p. 28; and Michael Walzer, Spheres of Justice, Oxford: Blackwell Press, 1983, p. 62. 85 Michael Walzer, Spheres of Justice, Oxford: Blackwell Press, 1983, p. 62.

30 borders at one’s discretion would threaten the ability of that people to pursue its own projects and goods. Some people think it would affect people’s accessibility to welfare programs as well as universal health care, or simply the protection of their own culture. This situation would in turn weaken the citizens’ autonomy.86

Luckily, Abizadeh’s unbounded demos thesis shows why the self-determination argument, which is adopted to support the right to unilaterally determine borders control, is unsuccessful. If the demos is in principle unbounded, he argues, the smaller political communities upon which this collective demos is divided and their boundaries need a justification.87

The appeal to self-determination to justify the right to one’s unilateral control over border control, Abizadeh continues, presumes an already-made justification of these smaller political communities. It also means that any supposed justification of unilateral control over borders is consistent with the arguments justifying the presence of borders in the first place. Abizadeh thinks of five arguments that justify the existence of borders and are at the same time grounded in the value of autonomy.88

First, Abizadeh analyses the “diversity argument”. This argument holds that a political world that is the most pluralistic need political borders to preserve diversities. This, in turn, enhances people’s autonomy since it enlarges their possibility to choose and experience diversities. This argument, however, is self-defeating because it wants to argue for the importance of plurality and diversity and at the same time determine one’s possibility to unilaterally close borders. The possibility to choose this isolation is, in fact, counter-intuitive to the argument itself, which instead promotes autonomy through the possibility to choose and experience diversity. Therefore, the self-determination principle, which relies on the diversity argument to support the possibility unilaterally close one’s borders, is incompatible with the existence of borders.89

The second argument Abizadeh analyses is the so-called “dispersion of power argument”. This argument justifies the existence of political borders based on the possible threat yielded by a global tyranny. The division into smaller political communities would then disperse political power, allowing different exercitations of the political power. Henceforth, if one of this community becomes a tyranny, there is the possibility to move to another community, which has a different type of government. However, the possibility to unilaterally close one’s borders challenges this argument, too. If a political community unilaterally closes its borders, people who want to flee from a tyrannical government cannot enter this community. Once

86 For the welfare argument see Joseph Carens, “Immigration and the Welfare State,” in Democracy and the Welfare State, Princeton: Princeton University Press, 1988, p. 222; for the culture argument see Will Kymlicka, “Territorial Boundaries,” in Boundaries and Justice, Princeton: Princeton University Press, 2001, p.265-266. 87 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 49. 88 Ibidem, 49-53. 89 Ibidem, 49-50.

31 again, then, this argument is incompatible with the existence of borders in the first place and so defies the self-determination principle.90

The next argument Abizadeh analyses is the “boundary-preferences argument”. This one appeals to the allure of living in a political community where a person can identify with. This argument is based on a person’s preferences to live with fellow citizens with whom sharing a collective life and political institutions. The existence of borders then is justified by the appeal of the principle of freedom of association and therefore the possibility to choose the individuals with whom someone wish to live. This argument definitely works for the members of the group, the insiders. However, boundaries have externalities; they do not simply coerce the members, yet also the outsiders. Following the unilateral determination of one’s border control, then, a would-be migrant could not enter the preferred community because of such impossibility. This would deny his/her own possibility to choose with whom to live as well as his/her freedom of movement.91

Therefore, this argument presents both arguments in favour and against the unilaterally right to determine one’s border control. To balance out the reasons provided, Abizadeh thinks that this argument shows that members may have a right to porously control their own borders, yet they cannot unilaterally decide to close them. In any case, the boundary-preferences argument does not provide a justification for borders, which is consistent with a “unilateral right to control and close one’s own borders on the basis of self-determination.”92

As fourth argument, Abizadeh analyses the “subsidiary argument” concerning a scale problem, which states that political power is more effectively exercised in the smallest possible community. This is because a smaller community enhances people participation as well as a better response to their needs, views and preferences. Abizadeh argues that some phenomena such as that of migration simply overcome local control. In this case, the question becomes whether a joint-control over the problem would not be more effective than a smaller, local one. The subsidiary argument appeals to the maximization of one’s control over things that affect his/her life. For the border control issue, then, this argument is similar to the previous boundary-preferences argument. The consequences are also the same.93

The fifth and last argument Abizadeh analyses is the “minority protection argument”, which supports the existence of political boundaries based on the protection of minority groups’ autonomy. Political borders, in fact, allow a greater number of people to share political institutions that reflect their ideas for a collective public life. This argument is indeed consistent with the self-determination argument for unilateral domestic control. This discretionary act might reveal to be necessary under certain circumstances to protect a minority’s political aspirations.94

90 Ibidem, 50-51. 91 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 51-52. 92 Ibidem, 52. 93 Ibidem, 52-53. 94 Ibidem, 53.

32 To summarize, Abizadeh concludes his analysis stating that only one out of the five arguments that he considers for the existence of political borders is consistent with the self- determination argument for the unilateral control over borders regime. All others demands a legitimization of border policies to foreigners and only grant the possibility of porous borders under the joint decision of members and nonmembers. Therefore, he can conclude that the state sovereignty view is to be limited at the case of minority protection, and a joint action of different agencies is to be implemented regarding migration policies to have the most democratic decision-making possible.95

Now, based on the last two sections of this chapter, I have simply endorsed Abizadeh’s argumentation in order to further support my own thesis. However, his analyses may even be considered to be too inclusive. In fact, based on what we just asserted, Abizadeh’s theory would not include just the ‘people of migrants’. He would include as agents to be considered in the joint action to decide EU migration policies, also all foreigners which might somehow be coerced by a unilateral decision to close one’s borders.

Since my solution aims to be as pragmatic as possible considering the difficulties that such a new democratic-decision criterion may present, I believe Abizadeh’s theory to be way too inclusive. In order to propose a feasible solution for EU democratic system, it is not possible to consider among the ‘people of migrants’ all foreigners, but I will consider only those whose intention to move to Europe is presently coerced by EU MS decisions over their own migration policies and their own borders, excluding therefore all of those who might be coerced by migration policies decisions in the future. I believe this restriction to be quite practical since it is supposed to help the feasibility of my thesis.

In the next section I will analyse what are the consequences of Abizadeh’s theory for EU migration policies and why the ‘people of migrants’ as I intend it should be part of the decision-making process concerning EU migration polices.

3.3 The Consequences of the All-Subjected Principle for EU Migration Policies: a More Democratic Legitimization and Implementation Process

In the previous sections, I showed that the exercise of political power justified only to the members of a nation-state, or to the members of a union of states such as the EU, is simply incoherent because of what its implications are for the democratic principle of legitimization. Furthermore, also the justification of unilateral border control based on the principle of self- determination is unsuccessful. This means that the legitimization of migration policies cannot exclude from the decision-making process those people who are subjected to the effect of the implementation of such policies.

Nonmembers have the right to a democratic say in the matter of migration policies as well as the possibility to participate in a joint action to implement the guarantee of the most

95 Ibidem, 53.

33 democratic border control possible. I have also showed that the nonmembers, or the agency that represent them, entitled to this political right must be identified through the all-subjected principle proposed by Abizadeh.

In particular, the definition of subjection I gave in the first section of this chapter identifies the nonmembers to be included in the decision-making process for migration policies. It is possible to distinguish three agents who should be participating in the process. These are EU citizens, EU neighboring country citizens and what I named the ‘people of migrants’.

If the first two have at least some sort of representation through the election of national governments and EU institutions, the latter has no international institutional form of expressing themselves. The refugees come from war zones, or places where political oppression is constant therefore, they cannot rely on their governments to express their opinions and ideas, much less fighting for their rights in foreign countries policies.

The economic migrants, instead, formally have a national government, which could defend its citizens’ right to a democratic say in some intergovernmental organizations such as the United Nations (UN) or the Organization for Security and Co-operation in Europe (OSCE). However, when it comes to practice, this is hardly the case. On the one hand, with regard to OSCE, not all nation-states are part of this organization so many migrants would still be excluded.

On the other hand, the UN could represent a good international place where to raise this political debate. However, as I showed in the second chapter, the migratory process is self- sustaining and emigration and immigration countries’ economies depend on the process itself. Therefore, I think emigration countries would have few political and economic interests in raising this topic on an international level because of the threat of negative consequences for the phenomenon.

This situation leaves migrants on their own. They are denied the right to a democratic say in EU migratory policies, although these policies subject them to coercion because of the decrease in autonomy they experience. As Abizadeh argues, autonomy is, in fact, one of the main factors in determining whether individuals are coerced by political power and therefore in need of a representation because of their right to a democratic say.

For him, coercion can affect an agent’s autonomy in three different ways. Firstly, it may damage or block the development of an agent’s mental abilities. This may or may not be true for the ‘people of migrants’ and I will not examine this option because I think it mostly depends on individual situations.96

Secondly, coercion inevitably reduce or eliminate the options an agent can dispose of. The closing of borders, I believe, definitely fall into this category since a migrant is reduced of viable options of entering that specific country. It is true, however, as Abizadeh writes that

96 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 57.

34 autonomy does not require the maximization of the number of options; it only requires the accessibility of a number of valuable option. Henceforth, an agent’s autonomy is affected only if the decreasing of options do not leave enough options available.97 Even with this restriction, I believe migrants are subjected by EU policies because their number of viable options is generally speaking extremely low.98

Thirdly, Abizadeh argues that coercion always violate the condition of independence, which is a fundamental characteristic of autonomy. Coercion, in fact, subjects a person to the will of another. In the case of migration policies this is also exacerbated by the fact, that migrants’ options are reduced by the exercise of power of some “intentionally acting agents, rather than, say, by unpreventable natural disaster”.99 It seems to me clear that the ‘people of migrants’ fall into this category since their independence is denied by the will of another, a state or the EU.100

This short analysis on the lack of representation as well as the lack autonomy for the ‘people of migrants’ shows that they are coerced by unilateral EU decisions on migration policies. They are subjected to others with regard to the border control issue and they need a representation in order to express themselves and take part in the decision-making process for migration policy making. What are the consequences of this awareness and the application of the all-subjected principle for EU migration policies?

The first consequence of the all-subjected principle for EU migration policies, in my opinion, concerns the implementation of a representative institution where the ‘people of migrants’ may be heard out. This is also the challenge posed by ‘European migrants crisis’ to democratic theory: an enlargement of the democratic process to implement better and more efficient migration policies as well as the identification of a unbounded political community to which such policies owe a legitimization.

There is also a second consequence for EU migration policies. It derives from the rejection of the sovereignty state view and the self-determination principle. In fact, as I have argued in the last section, the unilateral control of border, especially the right to close them, is legitimized only insofar as it concerns the protection of minority groups. This is not the case, however, of the ‘European migrants crisis’.

Therefore, the decision-making process for the implementation of migration policies must become a joint responsibility of all-subjected agents, or their representative. This means that the decision-making process regarding migration in and outside the EU must be shared or at least legitimized to all the agents involved. As I have shown, these include three categories of

97 Ibidem, 57. 98 When I use the term ‘viable option’ here, I intend it similarly to Martha Nussbaum and Amartya Sen’s capability theory of justice where a viable option for a person is defined by his/her own capability to achieve the kind of lives he/she has reason to value. For further details on the topic see Martha Nussbaum and Amartya Sen, The Quality of Life, Oxford England New York: Claredon Press Oxford University Press, 1993. 99 For these characteristics of autonomy see Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 40. 100 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory 36, no. 1 (2008): 57.

35 peoples, and for extension their representative institutions. These are the EU institutions and MS governments, EU neighboring countries governments and the new representative institution, which would represent ‘the people of migrants’.

This change in the international perspective regarding the ‘European migrants crisis’ would be beneficial both for the efficacy of migration policies as well as for democratic theory as a whole. As Abizadeh says, then, migration policies if so legitimized and decided would grant democratic procedures a better respect for equality and freedom for the people over whom power is exercised. Also, these changes would enhance the participatory political practices of expression, contestation and discursive argumentation. More generally, endorsing Aabizadeh’s words, “democracy represents an attempt to replace relations of force, coercion, or domination with relations governed by fair negotiation, argumentation, and decision- making, and to legitimize the remaining uses of coercion by subjecting them to terms set via such democratic practices.”101

To conclude, in the next chapter I will face some counter-arguments to these conclusions and I will reply to them.

101 Arash Abizadeh, “On the Demos and Its Kin: Nationalism, Democracy and the Boundary Problem,” American Political Science Review 106, no. 4 (November 2012): 880.

36 CHAPTER IV

The Relationship between the ‘People of Migrants’ and the Classical Conception of Demos Disclosed - The New Legitimization Process to the Test

4.1 A Traditional Conception of Demos: Miller on What Constitutes a Good Demos

Abizadeh’s interpretation of the “unbounded demos thesis” has received several critiques. One of the most influential is David Miller’s analysis. He criticizes Abizadeh’s theory, and therefore the implications I derived from his theory for migration policies on different facets. Miller’s critique concerns two main domains.

First, the internal qualities of what constitutes a good demos. The desiderata for such notion affect both what he calls “citizen’s effectiveness” and “system capacity”. I will explain these notions better in the following paragraphs. Second, the effect of the external impact in changing the constituency of demoi. This would alter both the internal and the external praxis of today’s democratic system, which is mainly based on nation-states.

I will explain both critiques in detail and I will reply to them. In this section, I will present the first critique, to which I shall reply in the second section. The internal qualities of what constitutes a good demos are very important for my analysis. The requirements for such notion affect one of the main consequences of the all-subjected principle: the institution of a representative organization for the “people of migrants”. In fact, the “people of migrants” might not have the internal qualities to be considered a demos. This, in turn, affects their right to be institutionally represented.

In order to identify these desiderata, Miller offers a normative distinction between two different conceptions of democracy. In his opinion, each has different desiderata. Referring to Walter Gallie’s famous notion of essentially contested concept, Miller distinguishes between a “liberal-democracy” and a “radical democracy”. They differ both in the purpose of democratic institutions as well as in their form.102

On the one hand, Miller describes the liberal-democrats’ conception of democracy. Their aim, he writes, is twofold. Firstly, for liberal-democrats, democracy provides protection for the members of a demos from oppression and subjection. Secondly, democracy promotes the welfare of the same members by the guarantee of collective interest through political decisions. Therefore, democratic institutions are valued as instruments, which serve these two

102 For the notion of “contested concept” see: Walter Bryce Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56, (1956-1957): 167-198. For Miller’s distinction between liberal and radical democracy see: David Miller, “Democracy’s Domain,” Philosophy and Public Affairs 37, no. 3 (2009): pp. 204-205.

37 main purposes. More generally, democracy is valued on the outcomes democratic procedures generate.103

On the other hand, radical-democrats have the purpose of reaching “decisions that everyone can identify with”. They, then, value democracy intrinsically. This means that they value the democratic system in itself for the importance that they attribute to the concept of equality, which democracy represents.104

In my opinion, this division is disputable because not only do I think that both views can coexist in democratic theory; rather they are both fundamental aspects of democracy. Henceforth, it is not necessary to choose between one and the other. For the sake of Miller’s argumentation, however, I shall accept this division.

Based on this distinction, it is clear that for radical-democrats the people who form a demos are very important. Despite democratic procedures are considered valuable, the personal qualities and the relationship among the people of the demos are crucial in having an engaged collectivity. They would consider legitimate the outcome of collective decisions because of the principle of self-determination, which define their allegiances.105 What are, then, the qualities a demos should have to be considered as such and function properly for radical democrats according to Miller?

Firstly, “sympathetic identification”, or the act of mutual recognition as being part of the same political community. This implies the attempt to come to an agreement on disputes, because of this mutual identification as belonging to the same group. Miller claims that this “mutual identification” goes beyond the more simplistic recognition of human rights and the behaviour, which someone has towards human beings as such.106

Secondly, some basic ethical principles upon which the entire community agrees. Miller thinks that if there are no such bases, it is impossible to be considered a political community. Of course, it is difficult, if not impossible, to agree on each principle as well as give them the same importance. Nonetheless, there must be some prima facie principles to which all the members can appeal and that all members recognize as valid. This is particularly important for the application of a certain rule of law and therefore being able to settle disputes.107

Thirdly, “interpersonal trust”, or some sort of reliance on other people fair attitude to the principles of democracy. For Miller this confidence in your fellow group members is valuable for two reasons. First, interpersonal trust leads to a respectful attitude towards the people’s resulting choice on disputes. This means that if you lose a dispute, you will respect the outcome of the democratic decision. This is important for a healthy democracy. Second, Miller thinks that trust is important in the democratic disputing procedure that leads to the collective decision as well. Democracy disputes are mainly solved through compromise.

103 Ibidem, p. 205. 104 Ibidem, pp. 205-206. 105 Ibidem, pp. 206-207. 106 Ibidem, p. 208. 107 Ibidem, p. 208.

38 Compromise, however, can be reached only if both contenders argue following the same principle and if both parties are willing to make mutual concessions. In order to do so, trust is needed.108

Lastly, the stability of a group is important for it to be considered a good demos. With stability of a group, Miller intends the necessity of repeated and fixed encounters of the group to discuss issues and solve disputes. This is valuable for the consistency of those principles you refer to during disputes, which is connected with the element of trust and sincerity I have previously explained. Furthermore, stability is valuable because it “allows the greater scope to reciprocity”.109

These are the qualities a radical-democrat would consider belonging to a good demos. Better, the qualities that characterize all political communities who can be considered a demos. The value of such desiderata relies on the main consequence of these qualities: having a healthy democracy. In order to have one, there must be a balanced structure between “citizens effectiveness” and “system capacity”. The first identifies the proficiency of the people to determine together the outcomes of their political system. System capacity, instead, valuates the practical efficacy of a political system to implement those outcomes.110

In the next section, I wonder whether the “people of migrants” have such qualities, and whether these desiderata are suited to identify the characteristics of a proper political community.

4.2 Can a Group of Individuals such as that of Migrants Be Considered a Demos?

These qualities may seem quite demanding, and probably a liberal-democrat would use more inclusive desiderata to characterize what constitutes a good demos. However, I think that if I challenge the stricter view on the desiderata that identify a people, the notion of ‘the people of migrants’ might come out stronger in their right to be considered a proper political community, which necessitates political representation.

Before answering the questions that I laid out in the previous section, I think it would be better to consider the constituency of “the people of migrants”. This has a twofold aim. First, it gives a better understanding of who composes “the people of migrants”, allowing me to properly define the term, as well as create the bases for a comparison between the characteristics of this group and Miller’s desiderata. Second, this process will reveal the underlying premise on which Miller’s desiderata rely. The disclosure of this assumption, then, will allow me to answer the second question.

108 Ibidem, p. 208-209. 109 Ibidem, p. 209. 110 For a more in depth distinction between the terms see: Robert A. Dahl, “A Democratic Dilemma: System Effectiveness versus Citizen Participation,” Political Science Quarterly, n. 109 (1994): 23-34.

39 I define the ‘people of migrants’ as that group of people who has fled or intend to flee their mother country for any reason (economic, political, social) and try to reach Europe. This does not include those who one day in the far future may decide to go to Europe because, as for Abizadeh’s coercion analysis which includes all foreigners, it is not a pragmatic option for the enlarged decision-making process I proposed. This group of people, then, is composed of ‘economic migrants’, ‘refugees’ and those who will become migrants in the next few months but have not begun the travel yet. Nonetheless, this group of people is certainly numerous.

The population of non-European migrants living in Europe counted over 35 million people in 2015.111 Their number is higher than most European States. In fact, only eight countries in Europe count more citizens: Russia (142 millions), Germany (82 millions), France (64 millions), United Kingdom (UK, 63 millions), Italy (60 millions), Spain (46 millions), Ukraine (45 millions), and Poland (38 millions).112 Three of these do not belong to the EU (Russia, UK and Ukraine). These numbers are impressive and are for EU only. I believe migrants cannot be underestimated in their value, influence and population.

Of course, the ‘people of migrants’ is a heterogeneous group composed of an incredibly different number of people. They would not fit into Miller’s four desiderata if we only consider them as the group of people they are now. The individuals composing the ‘people of migrants’ come from different backgrounds and they are not likely to recognize themselves as being part of the same political community. In addition, most of them do not share the same ethical principles since they come from different social settings.113 Least of all, they are not a stable group of people nor they share that mutual trust Miller claims to be necessary in order to respect democratic procedures.

However, if we consider what for Miller might be a good demos such as the national citizens of any EU Member States, can we really say that these demoi had as a prerequisite all of those desiderata when they first came together and were considered a political community? I hardly doubt that. Nevertheless, Miller believes that a specific common culture, which stands at the basis for being considered a demos, is not a consequence of social or “political imposition”. It emerges “more or less spontaneously” from the desiderata I have previously listed. Therefore, there is no dependency between the constitution of these four qualities and the political power to which people are subjected. These aspects are somehow independent.114

Despite this arguable belief of Miller, I want to underline a twofold difficulty in identifying the good qualities of a demos by those desiderata. First, it seems to me that all of

111 International Organization of Migration (2017), World Migration Report 2018, United Nations, New York, p. 67. http://dx.doi.org/10.18356/f45862f3-en. 112 Wikipedia, 2019, “List of European Countries by Population”, Last Modified on the 14th of June 2020, https://en.wikipedia.org/wiki/List_of_European_countries_by_population . 113 I want to remind here the difference between Ethics and Morality. The first identifies the shared ideas of what is good or bad inside a certain society or community. A particular society or a particular social community may have different ethical principles than others. Morality, instead, defines the personal ideas of good or bad for each person. Sometimes, an individual’s moral principles may differ from the ethical principles of the society he/she lives in. 114 David Miller, On Nationality, Oxford: Caledon Press, 1995, p. 40.

40 those desiderata are fuzzy and they do not reflect the specifics to differentiate between one demos and another. Where does the constituency of a demos begins and where it stops when we consider very similar countries such as France and Italy which might be argued to share all four desiderata to be considered a single demos, yet they are not considered as one?

For these reasons, I believe that the main aspect the ‘people of migrants’ lacks to be considered a proper demos, forming a well-functioning political community is a common political or social institution. I also dare to say that political power is probably the main source to identify the belonging to one demos or to another. In fact, each desiderata refer to some kind of common political or social institution.

First, the “sympathetic identification” refers to being part of the same political community, which is a social construction usually derived by the application over that community of a shared political power. Second, Miller lists common ethical principles, which relate to the institution of a shared political community since ethics comes from the ideas shared by a social community. Third, “interpersonal trust” comes from the shared principles of democratic procedures, which are in turn part of belonging to the same political power. Last, the stability of a group, which comes from the repetition in its encounters. This also comes from the institution of a political power that determine those meetings.

What I am trying to argue here is that political power is probably the main push factor in the creation of a demos. Examples of this may be cultural-nations such as France, Spain or Germany where a common political power inside a territory gave the peoples of that land common roots and habits which they have come to identify with. When those countries were first created though, the people inside those borders had very different backgrounds and habits such as the ‘people of migrants’ have today.

Here comes into place the second difficulty: the diachronic aspect of the demos. Miller completely forgets about the temporal effect of a common political ground. All those desiderata he identifies belong to demoi who have long live together under the same political and social institutions. This means that more than a natural and spontaneous characteristic of a group of people, belonging of the same demos or the same political community is more of a “project to be realized via the exercise of political power”.115

Therefore, I can conclude that if a political representation would start for this group of individuals, with time, this heterogeneous group may become a demos with the characteristics Miller identifies for a good people. Following this condition, I think that the ‘people of migrants’ may not be a demos yet, but they can become one if they are empowered by a political representation that push towards this characterization.

Miller’s desiderata, then, should not be considered as prerequisites for a good demos, yet they are aspirations to which any demos should tend to. Another good example in favour of my argumentation might be that of the European common ethos. Can European citizens be

115 Arash Abizadeh, “On the Demos and its Kin: Nationalism, Democracy and the Boundary Problem,” American Political Science Review 106, no. 4 (November 2012): 872.

41 considered a demos despite their numerous differences? No matter what answer you may argue for, it is the presence of common political institutions which allow for a push in the direction of EU citizens as being considered as a single political community and therefore a demos, at least with regard to certain political topics.116

To conclude, even if the “people of migrants” cannot strictly be considered a proper demos based on Miller’s definition. I believe that considering their huge numbers, which cannot be understated, as well as the diachronic factor into account, the “people of migrants” may get to be considered as such in the right amount of time and with the right political and institutional push in this direction.

In the next section I will take into account Miller’s second critique to Abizadeh’s unbounded demos thesis, which relates to the difficulties of applying his theories to today’s political system. 4.3 The Challenge for Today’s Democratic System: The Change Is Necessary

Now that I successfully argued that the ‘people of migrants’ might be considered a demos, with its own right of expression and representation, given the chance of a political push in that direction, I want to turn to the second critique Miller promotes against the Abizadeh’s interpretation of the ‘unbounded demos thesis’. This second criticism consists in expressing his concerns for the challenge that enlarged representative institutions would put onto the decision-making process.117 It is, then, rather important to consider the implications caused by such a change as it is sketched in the third chapter.

Miller believes that a functioning and resolute decision-making process is as important to democracy as an inclusive demos. He also implies that sometimes a more inclusive demos may cause issues at a functioning level for today’s political systems which are mainly based on nation-states. It is necessary, then, to balance pros and cons of any enlargement. He states that it is hardly the case where a domain change benefits both the decision-making process as well as the inclusiveness of the constituency.118

Furthermore, Miller insists in highlighting the relevance of the outward impact that an enlarged constituency would have on the decisions taken. This means taking into consideration the positive and negative effects of a possible inclusion of the newcomers, for the existing demos and for policy-making procedures.119

116 If you are interested in the debate over the existence of a European demos, which I will not further inquire in this paper, you can read the following articles and books: Anthony D. Smith, “National identity and the Idea of European unity”, International Affairs 68, no. 1 (1992): 55-76; Michael Bruter, Citizens of Europe? The Emergence of a Mass European Identity, London: Palgrave Macmillan, 2005; and Lars-Erik Cederman, “Nationalism and Bounded Integration: What it Would Take to Construct a European Demos”, European Journal of International Relations 7, no. 2 (2001): 139-174. 117 David Miller, “Democracy Domain” Philosophy and Public Affairs 37, no. 3 (2009): 226. 118 Ibidem, 226 119 Ibidem, 226.

42 Although I agree with Miller on the importance of a resolute decision-making process for democracy, I also believe that change may be counter-productive when we have a well- functioning democracy. This is not the case, though, with EU nation-states policy-making regarding migration. Until now, nation-states have been implementing actions only to hold off the migration waves. This is the case, for instance, of Austria or Bulgaria, which have simply built walls along their borders to keep migrants outside their countries. These actions may contain the issue of migration waves for a while, yet they cannot be the solution.

This shows that although on a general level, Miller’s critique may hold, in this particular case, it is unrealistic to believe that single nation-states policies would solve the problem. Therefore, I think it is necessary to enlarge the decision-making process allowing EU institutions to deal with the migration waves alongside EU neighboring countries and a representative of the ‘people of migrants’.

An inclusive decision-making process, although may be longer and more complicated, is the only solution to really tackle the migration problem on its roots. This means that nation- states may have to comply to the decisions taken by these three agencies even if they do not fully support them. For instance, until now, all proactive proposals such as the equal split of migrants among all EU Member States based on their populace has been denied or opposed by some MSs. It is not possible to postpone this situation anymore.

I very well know that predictions for a change in the democratic process such as the one I suggest is difficult to evaluate as well as it is its feasibility. However, I believe that the solution sketched in the third chapter may succeed if EU MSs work alongside the ‘people of migrants’ to find a common strategic path. I think it is important to repeat in this context Abizadeh’s view what is democracy for him, a view which I endorse in its entirety. “Democracy represents an attempt to replace relations of force, coercion, or domination” - such as those existing between EU and migrants - “with relations governed by fair negotiation, argumentation, and decision-making, and to legitimize the remaining uses of coercion by subjecting them to terms via such democratic practices.”120

The construction of such working relationship should be the aim of today’s EU democratic process. Not only because it would benefits the migration process towards EU by making it a more democratic and hopefully more effective decision-making process, yet because today’s decision-making system based on nation-states policymaking is simply not successful and sometimes it is even damaging.

If you involve the ‘people of migrants’ in the policymaking, you will have a better and more successful working partnership with migrants in general, enabling them to actually help in various issues. This is because EU would actually ask for the migrants’ say on pivotal issues in order to solve them together with mutual respect for each other as individuals and as part of a common political, social and working environment.

120 Arash Abizadeh, “On the Demos and Its Kin: Nationalism, Democracy and the Boundary Problem,” American Political Science Review 106, no. 4 (November 2012): 880.

43 In conclusion, I strongly believe that Miller’s critique may have some solid arguments in theory. However, he does not take into consideration the fact that if the decision-making process does not evolve with the issues at stake enabling a dialogue among all involved agents, it is bound to fail due to a strong lack of legitimacy. EU decision-making process is failing regarding the migration issue therefore, it needs to change. The ‘European migrants crisis’ is exposing serious deficiencies, which needs to be addressed by legitimizing and implementing a decision-making process involving EU MSs, EU neighboring countries and the ‘people of migrants’. This is the great challenge that the ‘European migrants crisis’ is currently posing to democratic theory.

With this thesis, I hope I have unveiled an underlying theoretical problem in today’s democratic theory, that of the incapacity of nation-states to deal with certain international issues such as the migrant crisis. In practice, I suggest that the EU needs an enlargement of the agents involved in the decision-making process regarding migration policies. I argue for a particular triad of agents, particularly I strongly support the theoretical legitimization and implementation of “the people of migrants” representative institution.

However, pragmatically speaking, I am aware that even though my arguments hold in theory, it is hard to realize and establish such a practice for a variety of reasons. First, it is hard for the ‘people of migrants’ to elect a representative because of a lack of a political institution as well as to reach a majority of the ‘people of migrants’ for the election process. Second, there would need to fund an institution where the three agents ( EU MSs, EU neighboring countries and the ‘people of migrants’ electives would be able to confront and deliberate of policies. Third, this institution would need to have the power to implement these policies to all the countries involved, which as we often witness with the EU is not an easy task.

These are just some of the practical questions my argumentation should face if it were tried to be implemented. All of these questions, I think, can be a source of enquiry for another essay.

44 CONCLUSIONS

The aim of this thesis is exposing the new challenge posed by the ‘European migrants crisis’ for democratic theory and, in particular, for the EU policymaking process concerning migration. In particular, I argue for an enlargement of the classical nation-state domain regarding the decision-making process involving migration policies for a variety of reasons. I suggest that migrants should be considered as any other demoi, and therefore the ‘people of migrants’ should be entitled to a political representation where they could have a democratic say in international institutions regarding migration policies which involve and somehow coerce them directly.

Despite nation-states efforts, in fact, I argued that the state sovereign view is nowadays unable to cope with global problems such as the ‘European migrants crisis’. In order to tackle such a large-scale phenomenon, a new decision-making process needs to be enabled. An increase in the agents involved in the decision-making process would probably alter some political equilibrium, yet I argue that the inefficiency of today’s policies is no longer tolerable. The ‘European migrant crisis’ is a urgent issue that cannot be postponed or put on hold for much longer.

I showed that a cooperation between a triad of agents is necessary. In particular, I focus on the importance of the ‘people of migrants’ whose representation can be legitimized following the implications of Abizadeh’s all-subjected principle. I believe that the key factor in involving a representation of the ‘people of migrants’ into the political debate would be beneficial both for a democratic point of view and the efficacy of the policies. Firstly, it would enlarge the constituency by involving a coerced agent into the decision-making process making it more fair and secondly, the efficacy and the foresight of the chosen migration policies is directly dependent on the migrants compliance to them.

To conclude, I raised some counter-arguments to my argumentation which I tried to respond to strengthen my thesis. However, despite a solid theoretical support to my thesis, there are still many practical questions which should be answered in order to be able to implement the new decision-making process.

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