On the Political Geography of the Right to Survive: The EU and Mass Migration Sara Dillon* Foreword. 37 The European Union and the Rule of Law: A Home for Human Rights? 38 Mass Migration and Supranational Freak-outs 46 On Mass Migration, International Human Rights and the Role of the E.U. 47 Is There a Right to Survive? If So, What is its Scope? 48 Finale: Institutions Will Not Save You. 53 Foreword The following essay is based on remarks I made as a panelist at the Gonzaga University Law School-RFK Human Rights Center Florence in May 2017, as part of a conference on the subject of Human Rights in Anxious Times. In the essay, I discuss the recent rise of illiberal politics in Europe and the U.S., and the worrying prospect of the general public rejecting what had been a post-World War II consensus on the importance of human rights and the international rule of law. The essay considers the effects within European consciousness of high levels of migration into Europe, the meaning of the “right to survive,” and the manner in which public anxieties are being manipulated by the illiberal far right. The essay argues that for the international rule of law—including human rights law and refugee law—to flourish, that law must live in actual places; it must be protected within actual jurisdictions, or risk being dismissed as a set of meaningless abstractions set out on insubstantial pieces of paper. The great danger at present is that, although Europe lived up to the letter and spirit of the post-World War II human rights consensus better than anywhere else on earth, public alienation puts the survival of the regime of rights itself at risk. The European Union and the Rule of Law: A Home for Human Rights? Some years ago, soon after the beginning of the 2003 U.S. invasion of Iraq, I wrote an academic article in the persona of an American dissident longing for the E.U. to act as a “progressive empire” and take a stand against that war on clear-cut international law grounds.[1] After watching Colin Powell make his now notorious presentation to the U.N. Security Council, during which he tried to convince the world that Iraq still had weapons of mass destruction (WMDs), I remember thinking, My goodness, they actually do not have any real evidence![2] After that speech, the act of making war against another country pre-emptively, on a rather flimsy basis, broke new ground all those years ago.[3] In 2003, the U.S. insisted it had a sovereign right to do something established norms of international law had long held no nation had the legal right to do. Up to that point, almost every credible interpretation of Article 2(4) of the United Nations Charter had rejected the notion that a nation could lash out militarily in order to prevent certain dangerous behavior that was not only yet to occur, but for which there was little predictive evidence.[4] Pre-emptive war was widely considered to be contrary to the most basic principles of international law.[5] Yet, at that moment the United States government was so eager to bring down Saddam Hussein it relied on what became known as the “Bush Doctrine” to achieve that.[6] Throughout 2003, American and international politics were profoundly split over the question of whether a nation’s sovereignty extended to the power to violate a core, even sacred, international doctrine prominently enshrined in the U.N. Charter based solely on its own fear of a future attack.[7] We know that the United States proceeded to take exactly that kind of pre- emptive action, and that in the end—whether ironically or tragically—no conclusive evidence of the existence of WMDs was found in Iraq.[8] My theory in 2003, which seems somewhat naive in retrospect, was that the European Union had the capacity to be the enduring location of international law principles, the site of human rights enforcement, and the home for our shared sense of international conscience and resolve, even if the U.S. should temporarily go off the international law rails.[9] In this vision, the E.U. could be the ongoing inspiration for forlorn American political dissidents, in the way America used to inspire Russian dissidents.[10] The law review article I wrote at the time was entitled, “Looking for the Progressive Empire.”[11] I remember with fondness and nostalgia Joschka Fischer arguing with Donald Rumsfeld over the legality of the Iraq War; giving hope to American viewers that a strong European sense of international law might restrain those in the U.S. being overcome with the fumes of irrational militarism.[12] Whereas the American political class had always struggled with subordinating its own sense of unique Constitutional destiny to “international law” rules, the thoroughly “postwar” E.U. had rather easily embraced these basic global rules, or so it seemed to me. Many in the United States were buoyed by Joschka Fischer lecturing Rumsfeld about the dangers of pursuing military adventurism without solid legal justification, as this showed that bedrock principles of international law could survive no matter what move the U.S. took next.[13] On the first night of the Iraq War in March 2003, when we turned on our televisions and saw bombs dropping on what was then a troubled but completely intact Baghdad, my thoughts went out to Europe, expecting to find a source of stable, reliable legal principles and hoping to find a counterweight to the war fever that had apparently gripped the United States.[14] I anticipated the reaction of what I considered to be the legally sane world: the E.U., because of its less manipulable politics, would come to the rescue of the rest of us. Hence, I hit upon the idea of an American dissident seeking solace in the belief that the flame of enlightened legal concepts would still be alive somewhere.[15] Interestingly, we should recall that Donald Rumsfeld’s technique at that moment was to try and divide Europe—old Europe versus new Europe—to split apart what seemed to be a broad European consensus that invading a country for the avowed purpose of toppling the government was an inherently bad idea, and a violation of an irreducible principle of international law.[16] The states of Eastern Europe were just on the cusp of entering the E.U. at that time, and had a far more favorable view of what the U.S. was up to in invading Iraq.[17] (This is somewhat ironic in light of recent anti-democratic developments in Poland, since back then countries like Poland were reacting based on their vivid and extremely negative memories of Russian aggression.[18] At the time, the E.U.’s Eastern European candidate countries were unusually pro-U.S. and inclined to favor heavily sovereigntist ideas.). Moreover, then British Prime Minister Tony Blair surprised many by signing on to George W. Bush’s 2003 war in Iraq, thus guaranteeing that it would go forward without the U.S. appearing to be a completely isolated pariah state in international law terms, and that the war would, in one sense at least, “succeed.”[19] It is important to consider where the prosecution of that war has led us fourteen years later. While it would be unfair to blame the long-running chaos of the Middle East on that war alone, it certainly contributed to widespread instability for many years after 2003.[20] It would seem that the international law rules, for all their defects in implementation and enforcement, had a lot of good sense at their core after all. The international rule against pursuing an unprovoked war, or engaging in armed attack against a state that has not first attacked your state, are rational, practical and idealistic, especially when measured against the alternative.[21] American neocon scholars argued earnestly during that period that Europeans had lost a sense of what a “just war” might be.[22] In other words, under this kind of analysis, the E.U., its governments and peoples, were too constrained by a sense of international legal rules, that it lacked the psychological space for reacting with resolve and outrage in a manner that might break the rules when necessary. This led to a great deal of frustration within the Washington establishment at the European refusal to support the U.S. in its Iraq War—even to the point where French fries in Washington became “freedom fries.”[23] The very name of the U.S.’s oldest ally could not be spoken inside federal government buildings. Yet even in that 2004 article I wrote on the “progressive empire,” I had to concede that there was a weakness within the E.U. that could undermine its ambitious project. As I saw it, there was danger in the E.U.’s total aversion to “blood and soil” politics, in that by banishing feeling from politics, the E.U. risked alienating its adherents and failing to provide the emotional bases for attachment that, in the end, every kind of politics—even the most rarified—requires.[24] Even back then, I feared that when tested the rational technocratic ether so characteristic of the E.U. would prove too insubstantial for the fretful human political imagination.[25] (In that regard, how interesting and how daring that recently elected French president Emmanuel Macron walked out onto the presidential stage to the sound of the E.U.’s Anthem, the Ode to Joy![26] Macron seems to be unique in his attempt to inject emotional potency back into the European project; not asking the E.U.