220 VII. Natural Law, International Law, Law of Hospitality. Why
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220 VII. Natural Law, International Law, Law of Hospitality. Why Migration Turned into a Problem for Politics I. Introduction: A Human Right Guaranteeing the Freedom of Emigration Article 13, 2 of the Universal Declaration of Human Rights of 10 December 1948 unequivocately stipulates: “Everyone has the right to freedom of movement and residence within the borders of each State.”; and: “Everyone has the right to leave any country, including his own, and return to his country.”1 As a whole, the Declaration sets as inalienable the rights it lists: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”2 It thus pronounces them as valid even when and where they have not been legislated through municipal law and even when existent laws prohibit or appear to obstruct the use of these rights. In today’s human rights, a legal idea has taken form which, irrespective of its precise expressions, is ancient.3 This idea is based on the assumption that a few rights are in the world, even if they have never been legislated through purposeful human action. From Antiquity to the turn towards the nineteenth century, this idea has been enshrined in the doctrine of natural law, parts of which specifically late medieval theologians, took to be divine law.4 In so far as that law was unset, it also provided a system of legal norms, the validity of which was acknowledged independently of answers to the question of whether or not these norms were actually enforceable. As a universal human right, the freedom of emigration belongs to these norms. It does say that 1 Universal Declaration of Human Rights, UN General Assembly Resolution 217, 10 December 1948, Article 13 [printed in: Richard Plender, Basic Documents on International Migration Law (Dordrecht, Boston and London, 1988), pp. 5-6]. In Article VII of his draft constitution of 22 July 1789, the Abbé de Sièyes already used a similar formula. Accordingly, every human being was to be free to go or to stay, to depart from and to reenter any place within and even the Kingdom of France as a whole, whenever he or she should please to do so. See: Emmanuel Sieyès, Préliminaire de la constitution française (Paris, 1789) [further edn (Paris, 1791); English version (London, 1795)]. The Abbé thus combined the right of the free choice of residence with the right of emigration and remigration, both, however, defined a rights of French citizens, not as human rights in general. 2 Universal Declaration, preamble. 3 Hence, human right did exist long before they came to be cast into written legal diction during the American Revolution in the 1770s. On the process of the written codification of human rights see: Georg Jellinek, Die Erklärung der Menschen- und Bürgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte (Staats- und völkerrechtliche Abhandlungen. Series1, vol. 3) (Leipzig, 1895) [second edn (Leipzig, 1904); reprint of this edn (Leipzig, 1913); third edn (Munich, 1919); fourth edn (Munich, 1927); further reprints (Schutterwald, 1996); (Saarbrücken, 2006); (Berlin, 2013)]. 4 Thomas Aquinas, ‘Summa theologiae’, edited by Roberto Busa SJ, Sancti Thomae Aquinatis Opera omnia, vol. 2 (Stuttgart, 1980), pp. 573-768. Otto Schilling, Das Völkerrecht nach Thomas von Aquin (Das Völkerrecht, 7) (Freiburg, 1919), esp. p. 26. 221 anyone residing somewhere can legally run away from one day to the next., Instead, municipal laws can impose restrictions against the full use of the freedom of emigration. Anyone wishing to leave, then, is compelled to act in accordance with these restriction, of departure is to be legal. The freedom of emigration usually does not apply to persons charged with criminal offences, and only conditionally for those subject to draft. Moreover, municipal law can stipulate certain hurdles against emigration, such as the payment of a fee. But there is a far more significant restriction against the use of the freedom of emigration than these detailed norms. This is also contained in the Universal Declaration of Human Rights, albeit by implication only. The Declaration does not constitute a general freedom of immigration, the counterpiece to the freedom of emigration, and thereby excludes guest law from the canon of human rights. Hence, everyone can emigrate from every state on principle, but cannot on the same principle immigrate into eery state. Why and since when has this discrepancy between the freedom of emigration and the restriction of immigration been in existence? Migrations across international borders of states represent a type of patterned action in spaces with reduced law-enforcement capability, whence they can become subject to municipal law only to a limited extent. Their legal regulation either demands something equivalent of world domestic law – in this case, migration would no longer take place in spaces with limited law-enforcement capability – or their legal regulation follows from norms that, in turn, have either been agreed upon in treaties under international law or have been recognised as valid without specific acts of legislation. If migrations extend across wide distances, migrants act globally or their actions can entail global effects. As migrants and residents communicate, migrations are also interactions, and interactions are actions that result in responses. These responses are global, if they come into existence within a conception of the world as a whole. They have global effects, if they occur within a conception of the world as a whole but were not intended to have global effects. With regard to interstatal and international relations, long-distance migration is the prototype of global actions or actions with global effects. Migrants or residents claim certain rights. Since the sixteenth century at the latest, these rights have been subsumed in jurisprudence under the concept of the law of hospitality (ius peregrinationis, also ius hospitum, ius albinatum). As a rule, the law of hospitality encompasses norms concerning residence and other forms of stay at a certain place not identified as the place of origin of migrating or travelling persons. The law of hospitality in this sense encompasses norm complexes regulating patterns of actions of diplomats, merchants and shipwrecks as well as, to some extent, providing norms for the maintenance of public hygiene. Within the literature on the history of international law, the law of hospitality has some times been featured as “the law of foreigners”.5 5 Karl-Heinz Ziegler, Völkerrechtsgeschichte, second edn (Munich, 2007) [first published (Munich, 1994)]. The recent study by Tobias Schwarz, Bedrohung, Gastrecht, Integrationspflicht. Differenzkonstruktionen im deutschen 222 However, this term is misleading, because the word and the concept of the ‘foreigner’ came into use in Europe only during the later Middle Ages, next to words such as Old High German elilenti (also Latin exsilium, for residence in an aea different from the area of origin), which secondarily acquired the meaning of misery, and the cognate word alienus from the Latin tradition. These words later became generic terms, replacing the older usage of ethnic terms for individuals or groups, not belonging to the goups of residents at a certain place. By contrast, early forms of the current word ‘guest’ is first recorded as -gastizR in runes during the fifth century, thereby belonging to the earliest recorded words in the so-called ‘Germanic’ languages. This word has been derived from the Indo-European stem *ghosti, which is the common ancestor for Latin hostis, recorded even earlier, and denoting jointly the guest, the foreigner and eventually also the enemy. Already Cicero played with the apparently widely diverse meaning of hostis. He lamented what appeared to him as the unduly wide extention of the meaning of the word, which, in his interpretation, had meant the foreigner only in the Law of the Twelve Tables, and seemed to have had acquired the meaning of enemy (perduellis) at some later point of time. Nevertheless, Cicero thought, the history of the word hostis indicated that conflicts among enemies termed hostes had originally been mere quarrels among foreigners, not among enemies. Therefore, he concluded, the gentleness of the original meaning of the word was reducing the harshness of warfare. Hence, already Cicero noted a change of meaning of the word hostis, in his own case, he classed the change as an extention and connected this process with the concept of war and the modalities of warfare. However, Latin hostis concurred with Latin hospis, which was used in laws recorded in the Late Antique Theodosian Code for the years 361, 384 and 398 as a technical term not only for the host of quartered legionaries but also, as a rule, for quartered legionaries themselves. Prior to the code, Tacitus had used the formula of the ius hospitis and recorded it as valid among the so-called Germanic groups. During the fifth century, Sidonius Apollinaris had applied hospis to the Vandal ruler Geiseric, after his conquest of Carthage in 439. Tacitus‘s ius hospitis was supposed to have prescribed friendly reception to known as well as unknown guests. The hospitalitas of the Theodosian Code stipulated norms for military quartering accommodating soldiers as guests for a longer period of time. In distanced Gallic perspective, Geiseric remained guest within the Roman empire, even after he had taken residence in Carthage. Later on, , historiography of the Lombards by Paul the Deacon featured the word hospis for the year 574, that is, six years after the recorded Lombard ‘invasion’ of the Italian Peninsula, thereby continuing to categorise the ‘invaders’ as guests even after their settlement. Words for guests thus appear to have jointly denoted guests and foreigners, if they stayed for a considerable span of time, Ausweisungsdiskurs (Bielefeld, 2010), pp.