The institution of the European political space: EU borders, freedom of movement, and the status of refugees

Caterina Di Fazio

1. Introduction

In this chapter, I analyze the tension between citizens’ right to security and the states ethical obligation to those who find themselves in the condition of refugee. By means of a genealogical methodology, this chapter focuses on the rights of non-citizens in democracies, on the one hand, and the normative foundations of the modern states right to regulate migration, on the other hand; that is to say, on the right for migrants to access public and political space, and the right for states to choose whether or not to grant the right of asylum.

Additionally, this chapter explores ways of conceiving of a European political space based upon the principle of freedom of movement without thereby enhancing the process of the externalization of borders which would thus strengthen exclusion. It does so by analyzing the question of the European Union (EU) borders and the refugee status through the Hobbesian concepts of movement and the right of self-preservation. The chapter contains five main sections: 1) an introduction to a phenomenology of political space, i.e. an analysis of political space from the perspective of perceptual experience and the way in which it appears to human subjects; 2) an account of political space and movement based on the philosophy of Thomas Hobbes; 3) a discussion of Carl Schmitt’s understanding of European political space; 4) a definition of the refugee status according to Hannah Arendt (1996), Andrew Shacknove (1985), and Etienne Tassin’s phenomenology of the migrant condition (2003); 5) a conclusion on the European political space and the contemporary so-called refugee crisis.

There are two main ways to understand the idea of a phenomenology of (democratic) political space, shaped respectively by the thinking of Machiavelli and Hobbes. The two are in many ways opposed, but they relate to two opposing systems of visibility: a logic of appearance (Machiavelli) versus a logic of representation (Hobbes). In political terms, the first is the space of immediacy, of what we shall call direct democracy; the second is that of mediation, or representative democracy.

Representative political space is created plurally throughout political participation in a representative system, and is thus defined as representative democracy. The political space of which I want to speak here — the first one — can only, like the latter, be instituted by a plurality. The notion of plurality is borrowed here from Arendt. As Loidolt explains: “plurality consists of different and irreducible accesses to the world, who actualize and express their being an irreducible world-access by speaking and acting together. Thereby, they appear in the world and disclose themselves before others as this singular person” (Loidolt 2014). Without plurality, there is neither space nor politics. Yet this plural institution clearly does not come about through the expedience of the representative system. Instead, it is instituted when a more or less extensive group of people gathers in a space — which amounts to saying that such a space becomes a political space — actively and plurally participating in a direct and immediate way toward the end of some political values or public goods, or towards the formulation of a new political project. There is a sense in which todays problem, in political theory as well as in practice, consists in understanding how it is possible within the system of representative democracy to introduce moments of active and direct participation — namely, what we define as direct democracy.

The second problem is to define a new political project, as much European and transnational as possible. It is, however, a paradoxical time in which it appears possible to create a transnational, European anti-Europe league, but seemingly impossible to initiate a pro-European one. What is clear is that the formulation of a new political project has to account for and also make use of a space of plurality. Without a space, whether institutional or public, academic or municipal, in which to gather and confront, to make protests and proposals, such a political project cannot take shape. It is only the plural movement, or political movement, that creates, de facto, the political space. A movement that, at the level of political existence, deploys itself into three different and complementary forms: distantiation (from current conditions and positions), protestation or resistance, and participation.

The third problem here to be addressed is also relative to space — more specifically, to what we define as the European political space. The vastness and urgency of the problem are due to its two-dimensionality: on the one hand, it is a matter of understanding whether we can actually speak of a European political space, if there is in fact such a space, or, if not, how it can be instituted. On the other hand, in the absence of such definition, we are tempted to resort to the traditional model of the nation-state to describe Europe and its space, but then we clash with the evidence of a paradoxical process: to maintain freedom of movement within the Schengen Area, i.e. within its borders, Europe has begun a very risky process — that of the externalization of borders.

2. The politics of movement: Hobbes and mechanical movement

Thomas Hobbes was the first to formulate, in his natural philosophy and his politics, both a theory of mechanical movement and of political movement. Hobbes derives his conception of political space from his definition of mechanical movement. The central role that movement occupies in the development of Hobbes’ political system could prompt one to call his politics a politics of movement. Within this framework, Hobbes also theorizes the right of self-preservation, which he recognizes as primary. Because the right of self-preservation precedes all political form, it allows freedom of movement also once the state has been created, thereby granting citizens the right to flee. An analysis of the Hobbesian politics of movement constitutes, therefore, an omitted path to provide an innovative genealogy of the refugee status.

One of the ideas that characterizes modernity and modern mechanics is the centrality of human reason: human beings have the power to transform the worlds chaos into a geometric order through the activity of reason. Once humans can explain the world with the language of modern science, they also gain the ability to bring order to the world by means of this reason and law, i.e. by means of artificial necessity. In other words, once reality becomes describable, it also becomes reformable (Johnston 2011: 112—114). For Hobbes, as we shall see, modern mechanics enabled a revolution that was political as well as scientific. It enabled the creation of a new order of space, both natural and political, since for the first time both natural and human orders were called into question, for the same epistemological reason.

For both Hobbes and Descartes, modernity is the age of radical rationality which gives rise to a new conception of the individual — more specifically, of an individual who is in permanent motion. In his controversy with Descartes, Hobbes states that what is lacking in Descartes is the primacy of the body and local movement. Hobbes argues contra Descartes that the perceiving subject is a moving body and that there is only one substance: the bodily substance. Yet, Hobbes ultimately goes beyond the conception of motion as mere “matter in motion” by stating that the only reason why humans can perceive a world is because matter is in motion. Motion, for Hobbes, is what not only differentiates bodies and matter, but also makes them perceivable. These assumptions finally lead to the conclusion that, so to speak, movement creates bodies.

Hobbes’ complete philosophical system[1] is grounded in the principle of movement, and more precisely on his conception of the body as that which can move or can be moved. When it comes to the description of finitude (matter) and finite things (bodies), Hobbes needs to postulate infinity (movement): “when a thing is in motion, it will eternally be in motion” (Hobbes 1994, Part 1, Chapter 2). When we apply this concept to the case of human individuals, human movement also cannot stop, and thus humans live in a permanent condition of war — not always actual war, but rather in the constant possibility of war and in its anticipation: “life itself is but motion, and can never be without desire, nor without fear, no more than without sense” (Hobbes 1994, Part 1, Chapter 6). The link between Hobbes’ natural philosophy and Hobbes’ political philosophy would therefore be: motion as the principle of the universe, on the one hand, and disappearance or control of motion, on the other hand; which is to say that when it comes to the political order, Hobbes attempts to superimpose on the natural chaotic movement of human life the model of regulated motion furnished by mechanical science.

Despite other differences, both Machiavelli and Hobbes state that freedom of movement, fear and a restless desire are the three hallmarks upon which individuals’ equality in nature is based. Individuals are all equal because they are characterized by the same passions, the same emotion — namely, the emotions of fear and desire — and by an absolute freedom of movement. Yet Hobbes’ thinking is driven by the will to stem human desire and motion: according to Hobbes, in fact, humans are all passion, desire and motion, but are also endowed with reason; that is to say, they have the ability to give shape to reality. Although Hobbes, like Machiavelli, describes humans as movement and desire, he also states that, as long as they remain in this dimension of desire, they live in the helium omnium contra omnes (war of all against all). So, while Hobbes claims that nature is movement, that human life is movement, he also states that we should be afraid of movement — and of empty space — assuming that they are both always destructive. Politics, then, deploys itself only as a static force: as a negation of movement, and thus as a negation of nature.

In summary, Hobbes is the founder of a mechanical way of conceiving human beings both outside and within political space. Hobbes reduces both the body natural! and the body politique to movement. Moreover, Hobbes calls man an automaton, neuter of autómatas (which in Ancient Greek means “self-moving”) and then proceeds with the distinction between

Voluntary movement is, for Hobbes, the main justification for the creation of the state: the state is constructed by a succession of voluntary movements performed by a multitude of individuals or autómata. For Hobbes, the two main movements that characterize human life are:

  • 2a Movements of approximation or attraction, which are caused by desire and correspond to the action of going towards
  • 2b Movements of detachment or repulsion, which are caused by fear and correspond to the action of going away

Hence, human life becomes scientifically reduced to these two types of movement; morality is also reduced to mechanics, and the lives of individuals — the automata — remain enclosed in the confined space shaped by the two central (e)motions: fear of violent death; and desire, which can never be fulfilled, precisely because it consists in a “restless desire of power after power that ceases only with death” (Hobbes 1994, Part 1, Chapter 11). Indeed, the fulfilment of desire would result in the absence of movement, in immobility {ataraxia} — that is to say, death.

As a matter of fact, Hobbes needs to postulate eternal motion in order for his political system to work. Motion is the cause of conflict, and if conflict would not potentially be perpetual, there would not be politics at all. But if conflict stems from movement, so too does freedom. In short, according to Hobbes, human freedom — and specifically, political freedom — coincides with movement. Once the borders of political order have been fixed, the two movements of fear and desire have to be regulated and contained. Put differently, the state creates closed geometrical spaces, in which people are free to move without meeting obstacles, provided that they are moving according to the regulation of the sovereign, viz. to the laws established by the Leviathan. As a result, the passage from the natural to the political coincides with the passage from disorder to order. By assuming that politics equals a negation of nature, Hobbes attempts to separate politics from nature. In the end, however, Hobbes cannot maintain this separation, because (the state of) nature keeps appearing on the horizon of political space as the possibility of the civil war (what Hobbes calls Behemoth).2

Hobbes’ formulation ante litteram of the refugee status

The tension between Hobbesian and Machiavellian conceptions of political space continues to surface in the problem of the enemy and of the strategy to cope with it that still constitutes one of the main pillars upon which the state founds its identity. It is essential for the enemy to be visible; otherwise, it cannot be faced (the invisibility of the enemy is one of the main issues of our time). For Machiavelli and Hobbes, respectively, the two main strategies against the enemy are:

  • 1 Keep the enemy within the borders of political space, thus preserving conflict (Machiavelli)
  • 2 Exclude the enemy, thus maintaining order (Hobbes)

If in the state of nature, human beings can benefit from complete freedom, freedom in the state of nature constantly meets contingent and accidental obstacles in the form of other peoples desire and fear of violent death. In other words, in the state of nature, freedom is subjected to contingency and accidents. Once in the state, people can build up obstacles themselves so that these obstacles, while limiting people s freedom, also define its space, thereby protecting it — the space of freedom — from contingency and accidents. Put differently, the obstacles which are created by the law are necessitated — necessary. This is due to the decision of instituting the state (Leviathan), through which rational subjects have brought order to the world by means of reason and law — that is to say, by means of artificial necessity. But once the state stops protecting people, so basically stops working, people are free to flee. And once people are outside of the boundaries that used to represent “impediments of motion” and to separate the interior from the exterior, they are free to move. Yet, in the last analysis, once they are free to move with no impediments, they also go back to the condition of being subjected to contingency.

The state constitutes itself spatially (which is why we talk of a political space) by building its own identity in defining its borders. These borders are obstacles, impediments to motion. Thus, for Hobbes, who was the first to theorize negative freedom, it is only within those borders, conceived as impediments to motion, that a limited, negative freedom is free to develop itself and deploy itself. According to Hobbes, then, freedom of movement comes together with the action of setting up limitations, obstacles, borders. Borders give identity. By transgressing the borders, you are renouncing your citizenship, and by renouncing your citizenship, you are also losing your individual identity. Consequently, once there are no limitations, viz. once you are outside the borders that used to protect you, you are no longer a citizen and you regain your freedom of movement. Yet, this absolute freedom of movement is paid for with a loss of identity and, in the end, with an effective limitation of freedom.

When internal conflict worsens, contemporary democracies often react with the identification of an external enemy. Put differently, when the reasons for an escalating internal conflict are not yet clear, the collective imaginary produces a hyper-representation of a scapegoat (for instance, the Jewish people for the 1929 crisis and the refugees for the current crisis). The so-called refugee crisis makes clear that we still now live in a Hobbesian world: fear inside the borders of the Leviathan produces a compulsory search for protection inside the borders — e.g. les états d’urgence (state of emergency) in France — along with a systematic exclusion of whomever is outside and trying to transgress the borders to get inside. For this reason, a political and philosophical analysis of the refugee crisis should start precisely with Hobbes’ description of the link between obedience and protection and, moreover, with the first proper formulation of the case of exception that he provides.

According to Carlo Galli (2011: XXXIX), we can find a first formulation of the case of exception in Hobbes’ Leviathan where Hobbes states that, insofar as the life of the Leviathan is in danger, the Leviathan can put to death its subjects, despite the fact that it was created for the opposite reason — that is to say, to protect the life of its subjects. A second case is war. The parallel case of exception, according to Galli, lays precisely in the right of the citizens that have been condemned to the death penalty or that have to go to war, to get back their jus naturale, thereby ceasing to be compelled to obey their sovereign and to flee. This can also be understood, as Andrew Shacknove suggested already in 1985, as a first formulation, given by Hobbes, “though he never knew the word”, of both a theory of freedom of movement and the refugee status (Shacknove 1985: 278): “L1BEKTY, or F1LEEDOME, signifieth (properly) the absence of Opposition (by Opposition, I mean external Impediments of motion)” (Hobbes 1994, Part 2, Chapter 11).

Citizens manifest and practice their freedom when they move with no impediments. The absence of state sovereignty coincides, in the political space, with the absence of opposition to freedom of movement. Accordingly, Hobbes introduces territorial mobility within political space, defining it with linear borders. But while political space is the space of the monopoly of fear — or rather, if the Leviathan is the monopoly of the imaginary of fear; if the borders that delimit its territory are like protective walls within which the sovereign protects its citizens and the citizens obey their sovereign — Hobbes also says: “the end of Obedience is Protection” (Hobbes 1994, Part 2, Chapter 11). In short, Hobbes is the first to formulate the modern equation between power and protection from death and thereby also to state the right of self-defense. In Hobbes’s words, man is always free to defend himself, “for no man can transferre, or lay down his right to save himselfe from Death” (Hobbes 1994, Part 1, Chapter 14). The choice for Hobbes is to die or to flee. If the sovereign cannot protect its citizens anymore, citizens become free from the obligation of obedience and return to the state of nature. But at the same time, they also get back their liberty to move.

3. Carl Schmitt’s genealogy of the European political space

We owe to Carl Schmitt one of the most contested readings of Hobbes’ The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol (2008 [1938]). In his analysis of Leviathan’s famous frontispiece, Schmitt claims that it already contains several dimensions of modern political space, and in particular those of the theatricality and the territory. As Balibar (2002) asserts in his preface of the French edition, the Leviathan arises, by means of an artificial power, from a territory. The sovereign is constituted by the aggregate of the bodies of those individuals who pass from private to public. The frontispiece is an allegory of the national territory onto which the sovereign rises. The primacy of the element of territoriality then leads to a substantial restructuring of political space.

The Nomos of the Earth (2006 [1950]) is Carl Schmitts best-known work in international law. The definition of the nomos of the earth as jus publicum Europaeum remains strictly related to the other main categories of Schmittian politics, such as the political (friend vs. enemy), the state of exception (norm vs. exception) and political theology. According to Schmitt, the original decision of Hobbesian sovereignty consists precisely in interpreting and distinguishing good and evil, peace and war, enemy and friend. The sovereign decision creates the norm and distinguishes it from what is not norm. It is from this perspective that Schmitt’s concept of “the political”, i.e. the distinction between enemy and friend, can be understood, together with the concepts of decision and exception. Indeed, a decision within a state of exception that suspends the exception and establishes norm and order, according to Schmitt, must also be thought of as decision on whom will count as enemy or friend. In other words, the decision on what will count as normality comes together with the distinction between enemy and friend. Schmittian state sovereignty, like the previous Hobbesian one, constitutes itself by distinguishing the interior from the exterior. The inside/outside distinction, together with the friend/enemy opposition, is one of the two poles of orientation with respect to which a state constitutes itself via a process of differentiation. Borders do not just protect the population that is inside from whatever danger could come from the outside. As we are reminded every day, borders also give identity.

According to Schmitt, the new world order (nomos) shaped by national borders emerges already during the seventeenth century and more precisely at the end of the century of religious wars ending with the Peace of Westphalia in 1648. This new order is the European order. Yet (again, according to Schmitt), this new order is constituted only in opposition to the outside, to the enemy, namely to the “new world”. The fact that, from Schmitt’s understanding, the institution of the political order of modern Europe is also based on the existence of the colonial world outside, Andreas Kalyvas (2018) claims, has not been given enough attention. Still, the concept of the colony is coextensive with that of the nomos in the Schmittian sense, which is to say that the colony is a constitutive element of the European order of the earth. The spatial structure of the European nomos derives from that of the global nomos, which arises from the opening of the oceans’ maritime space — it is its periphery.3

It is worth noting that, unlike the space pacified within the borders of the Leviathan, Hobbes’ international space was already characterized by movement and conflict. Hobbes implied, perhaps for the first time, the relation between the tame closed space delimited by state borders and the boundless chaotic space extending beyond borders. From this perspective, the political space sketched by Hobbes is rather to be understood not in a metaphorical sense, but as a geographical space, delimited by borders. This is what Schmitt does in The Nomos of the Earth, where he provides a definition of the modern order of the jus publicum Europaeum. The drive to order, to form, according to Schmitt, is at the basis of the geographical and legal reordering of global space before the dissolution of the jus publicum Europaeum during the era of globalization. In other words, the order inside is only possible while preserving the chaos outside. The state can maintain peace and order within its borders, while at the same time remaining in a situation of potential conflict vis a vis other states in the international space. The nomos as a reordering of the earth stems from violence, more specifically from the violence accomplished when a political decision institutes a norm and a normality where there was nothing but disorder. It is this break that gives birth to the European political space. What is to be determined are the lines of friendship. The jus publicum Europaeum is then to be understood from a double point of view: that of history and that of geography. It is about bringing together the history of religious conflicts and the birth of the modern nation-state, the history of modern Europe and the history of the wars of religion and their neutralization. However, this neutralization can only happen, according to Schmitt, by means of a new reorganization of the geographical space, concretized with the Westphalian treaties, and with a new delimitation of the internal and external borders. It is indeed a spatial revolution.

In the last analysis, the main characteristic of the Schmittian nomos is that it is not only an order, but a spatialized and spatializing order. This is why Schmitt cannot recognize in the two blocs of the Cold War a nomos. Likewise, the question of the new nomos of the earth — the one of the postcolonial political order of the “great spaces” — remains unanswered. In short, the Schmittian nomos consists in determining and drawing the boundaries of the political space. The geography of the jus publicum Europaeum established by Schmitt coincides with the division of the space of the world or, in other words, with the act of organizing the space on the condition of making a cut within the territory and closing the population within borders. In the great spaces of the present, borders are instead continuously shifting, and political spaces reshaped. Europe is constantly redefining its borders by externalizing them. This is due to migration flows and migratory routes changing. Political spaces are being redesigned by the movement of refugees.

4. The basis of refugeehood

In an important contribution to the discussion concerning the definition of the figure of the refugee — “Who Is a Refugee?” — Andrew Shacknove (1985) seeks to establish normatively what the conditions are for a person to be defined as a refugee — that is to say, what constitutes refugee status. He does so by comparing the two main legal definitions, namely that of the 1951 United Nations Refugee Convention (notably Article 33), which is a response to the totalitarian European experience, and that of the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa. Shacknove begins by asserting that the conceptual determination of refugee status would normally seem obvious: a refugee is someone who has to flee life-threatening dangers and who, because of a well-founded fear of persecution, is forced to cross international borders. And yet, the confusion inherent to refugee status that prevents a clear determination of who can benefit from it is used by states where migrants seek refuge to avoid responsibility. Of course, a clear determination of who should be considered a refugee would be a useful way to overcome the reluctance of states to grant asylum. However, according to Shacknove, persecution — a central concept in the 1951 Convention — is a sufficient but not necessary cause for granting refugee status. Persecution is the manifestation of a larger phenomenon. In the first place, in order to be able to determine where there is indeed a state of exception, it is necessary to determine what the normal state is.

It is therefore necessary, Shacknove argues, to go back to Hobbes, and to state that the normal Commonwealth is the one which guarantees protection to the citizens who are inside its borders, including protection from violent acts of others, and thus from civil war. “Thus the primary purpose of civil society is to reduce each persons vulnerability to every other” (Shacknove 1985: 285). Survival must be guaranteed. The absence of physical security coincides with the absence of the state, which is to say that we must go back to Hobbes to finally understand how the essential and determining condition of refugeehood is the lack or cessation of state protection towards its subjects. A state that has stopped protecting its citizens, in fact, no longer exists. The lack of state protection of the basic needs of its subjects is “the basis of refugeehood” (Shacknove 1985: 277, emphasis added). Since their basic needs are denied by their state of nationality, refugees are forced to seek international restitution. In addition, the state must guarantee freedom of political participation and freedom of movement as essential needs of the citizen, as well as necessary conditions for self-protection and the proper functioning of the institutions. Shacknove concludes that “a refugee is, in essence, a person whose government fails to protect his basic needs, who has no remaining recourse than to seek international restitution of these needs, and who is so situated that international assistance is possible” (Shacknove 1985: 282) (Figure 17.1).

In her 1943 essay “We Refugees”, Hannah Arendt (1996: 110), for her part, writes “in the first place, we do not want to be called ‘refugees’”, but rather migrants. According to Arendt, before the Shoah, a refugee was a person who was forced to seek shelter outside her country, because of an act or a political opinion. But even though they tried to find refuge elsewhere, Arendt claims, Jewish refugees did nothing and, for the most part, had no radical opinions. She concludes that the meaning of the term “refugee” has changed with the Shoah, and that the term henceforth refers to people who are forced to seek refuge in a new country where they arrive without means and where they seek help from refugee committees.

In his attempt to build on Arendt and further develop phenomenology of the migrant condition, Tassin (2003) argues that the participation in the political space — consisting in the institution of a common world — is based on the belonging to one and the same world, which is precisely what is denied to the foreigner. They are denied the right to appear. From the Arend-tian perspective that Tassin was adopting when analyzing the migrant condition, appearing in

Persons deprived of basic rights

Persons with no recourse to home government


Figure 17.1 The necessary conditions for refugeehood

Persons with access to international assistance public space conceived as a scene of action of a plurality, equates having access to a political life and existing politically. By denying to migrants their capacity to appear, we also fail to recognize their ability to act, yet the political space as a scene of appearing can only be a scene of coaction, a scene of collective action where one emerges — i.e. one makes oneself visible — only by distinguishing oneself from others. The phenomenon of belonging, or rooting, corresponds, for the migrant and the foreigner, to that of exclusion, or uprooting. Exclusion is to be understood as expulsion from an enclosed space, from within. Expulsion from the world is defined as acosmism. The phenomenon of uprooting coincides with the loss of the soil, as it transforms migrants’ lives into deterritorialized existences. The migrant experiences a certain distance from home and a disconnection from the new environment, a lack of belonging. Politics is therefore a two-sided phenomenon: on the one hand, there is plurality and its concern for the world; on the other hand, the extraneity and the resulting loss of the world. But while it is true that political space is characterized by an intrinsic dimension of visibility (Machiavelli et al. 1988), and that political action is a plural action that unfolds in a space of visibility, it is just as true that the belonging to this space results in a self-dispossession and therefore in a strangeness to oneself — indeed, where everything is transposed to the exterior, to appearance, the subject of appearance is somehow outside of herself, in a space of visibility, where she exists mainly for others and is seen by others. Being perceived, being visible, living on the surface, comes with a certain disconnection within oneself. Insofar as it is the space of visibility par excellence, the political space is also the space of this disconnection, this strangeness to oneself. This could perhaps be the condition of the creation of a welcoming space for the other. The being out of oneself corresponds to the exposure of oneself, the manifestation as a kind of second birth, Arendt (1958: 174) asserts. In other words, since the migrant condition is an exemplary figure of this non-self-coincidence, and since only by becoming external to myself — by being outside of myself — can I appear, can I manifest myself, the space created by this dispossession — understood as essential condition for the manifestation — might perhaps be the reception space for migrants. The phenomenon of strangeness is a phenomenon of unity of distance and proximity, that of wandering is that of unity, within space, of the inside and the outside. In reference to Jan Patocka’s notion of the three movements of human existence4 (Patocka 1996: 78), Tassin refers to three movements of migration: mobility, wandering and migration. Mobility is the act of leaving one’s country and crossing borders. Mobility, wandering and migration unfold then three worlds, or three dimensions of the world: the one that has excluded them, the one they cross without being part of it and the promised land. Wandering — the migrating condition — does not make us settle in countries, does not let us root; it only makes us cross these worlds. Therefore, either the migrant has no world, she is deprived of the world or she invents a world in the gap of the three she meets, in the gap of the three wandering horizons. Patocka defines the third movement also as that proper to a “life on the borders”. The migrant condition would then be that specific to the third movement. A phenomenology' of the migrant condition should then ask the question of how the migrant appears — or does not appear — in the world, and of how a common world appears. It should also embrace the cosmopolitan perspective, or that of a “cosmo-politics of conflicts” — where the common world is what is common in the conflict — and analyze the modalities of the deployment of the common world starting from "the other, the always foreigner, who alone makes world” (Tassin 2003: 301 [my translation]).

Ultimately, what should currently be examined is the Hobbesian dialectic between fear and exclusion, or even between sense of belonging and will to annihilation — or forced removal, in the best case. Such an analysis would show that the sense of belonging to a state territory corresponds not only to the will to protect this territory and its people in the name of some nationalistic feeling, but also to the implicit interdiction against anyone else’s putting down roots within the borders. Hence, the migrants condition would signify not just a loss of identity, but also the symbolic and effective exclusion from both public and political space. Indeed, in Tassin’s phenomenology of the migrant condition, there clearly appears the impossibility — for refugees and migrants in general — to access the political space conceived as a scene of appearance, precisely because of the lack of visibility that affects them. Paradoxically, in conclusion, those who are the freest in the Arendtian sense — namely, the freest to move — would be the least free.

5. The so-called refugee crisis and the nation-state

In the modern world, the nation-state is the primary form of political space. However, all countries within the EU — and beyond — are currently facing the epochal issue that there is no longer a shared conception of what a state is. Additionally, the problem of migration is often reduced to a question of national security.

A genealogy of the concepts of state borders, the right of self-preservation and the refugee status that both traces back to Hobbes and confronts the issues of the present thus faces the permanent problem of political space and thereby requires a new definition of political space that is able to adequately account for the refugee crisis. This genealogy is double-sided: on the one hand, it analyses the permanence of the nation-state form of political spaces, and on the other hand, it sheds light on the refugee movements in the context of the European crisis and, more broadly, the crisis of the nation-state.

In the Hobbesian nation-state, one contractually gives up her right to self-defense on the condition that the state provides security. Once this security disappears and the state fails to meet its obligation to its subjects, as we have seen, the subjects cease to be citizens of that state and regain both their right of self-defense and their right to flee. This amounts to saying that, although for Hobbes, state sovereignty does not normally face limits, it is nevertheless limited by the citizens’ rights of self-defense and self-preservation, which are prior to the political state and therefore unconditional. People who exercise these rights and forego their citizenship thereby regain their right to freely move outside the state boundaries — in other words, they gain the right to be refugees. Following Shacknove’s insights, I suggested that Hobbes was the first to properly formulate ante litteram the refugee status. Yet, nowhere explicitly in Hobbes is there any such thing as an ethical obligation for states to provide or grant security to non-citizens. Ultimately, it is always up to the government to decide whether any given state has any obligation to grant security to refugees.

Although a refugee convention exists, in the lack of a coordinated response enforced by EU institutions, whether any particular state acts in accordance with their responsibilities under the convention still remains dependent on each states sovereign decision. It is de facto entirely at the discretion of the sovereign will to consider someone a refugee and grant her right of asylum. In this sense, international law does not seem to have escaped the Schmittian dichotomy between normal and exceptional (i.e. rule of law and exemption to that rule on the basis sovereign decision), along with the idea that the state of exception always calls for a sovereign decision. It follows that the development of an “ethics of borders” based on the recognition of human rights is one of the most pressing tasks of our time, and this is even more the case given the geopolitical situation in which Europe finds itself, whereby many European countries, in response to the crisis of borders, are currently experiencing an exemplification of a permanent state of exception — something that even Carl Schmitt would scarcely have attempted to justify’.

Indeed, in response to the so-called refugee crisis, Europe has produced the idea of a direct association between securing one’s existence and closing borders, such that the relationship with the “other” happens on the basis of fear. Fear, far from being reduced, remains central on an emotional level, even while we witness the constant effort to reduce it on what we might call the physical level. The act of building walls or reinforcing the borders — even militarily — is aimed simply at stopping people from moving. The construction of walls corresponds to the attempt to suspend freedom of movement across the borders, thereby channeling fear. In short, the act of containing mobility responds to the need to limit fear. The defense of the freedom of movement rights is indeed a crucial discussion for the future of Europe (Balibar and Di Fazio 2019).

An exhaustive account of territorial justice and the refugee status thus must be genealogically retraced to the Hobbesian assumption that human beings have a basic right to be part of a political state that will protect them. From a normative point of view, an ethics of the refugee status should deny both the privilege attached to the contingency of having been born inside a specific territorial border, and the primacy of the interests of the people who already live in a determined political community over the interests of the refugees. What needs to be demonstrated within this normative framework is the existence of an ethical obligation for a state to accept and integrate refugees, given the assumption that there is no threat for the security of its people. One possible source of this ethical obligation could be an expansion of the Hobbesian argument from the level of the rational subjects to the state level, such that all states — by entering into a social contract with other states (in order to protect their own citizens from international conflicts) — bear responsibility not only to their own citizens, but to all citizens across the world.

Furthermore, any adequate ethics of borders would require a conceptual shift from an exclusive conception of borders to an inclusive conception of boundaries. Unlike borders, which remain fixed unless actively being redrawn, boundaries are naturally fluid. Resolving the refugee crisis in Europe does not require the cancellation of EU borders, but rather the understanding of how these borders may become inclusive — that is to say, of how a movement of exclusion can be overcome by its countermovement, i.e. a movement of inclusion.

The Aquarius affair’ made clear that the European political space understands itself as only able to permit unrestricted freedom of movement within its internal borders — the Schengen Area — by denying movement across its external borders. The agreement with Turkey requiring the return of boats to Libya,6 are nothing but an attempt to push the edges out of the European space itself' Moreover, the fact that refugee camps are increasingly emerging on the borders of the European area and even outside it is a concrete manifestation of the way that Europe, by means of an externalization of its borders, has been reshaping its imaginary geography.

This perspective is somewhat vexed by the indeterminacy of where to locate state boundaries in the Mediterranean Sea and, consequently, by the indeterminacy of deciding which state is responsible for saving refugees at sea. Indeed, such externalization of borders is evidently accompanied, or even motivated, by the abandonment of political and human (not just humanitarian) responsibility. This is made permissible, as mentioned, by the paradox of situating national and European borders in the Mediterranean Sea. The externalization of borders, on the one hand, and the indeterminacy of where to locate borders in the liquid space of the Mediterranean and the Atlantic on the other hand, contribute to maintaining freedom of movement in the Schengen Area. But at what price? At the price of a devaluation, every day more significant, of the basic principle of politics itself, that of responsibility. All this illustrates that the Westphalian order is currently being shaken apart by the political and ethical significance of the refugee movement. We are now confronted, if not with the potential twilight of nation-states, certainly with the emergence of new political spaces.

As for the definition of the European political space, it can be achieved in two different ways. First of all, it means talking not only about the future of Europe, but above all about the political dimension of Europe (Di Fazio and Urbinati 2019). It is a matter of understanding whether the process of constitution of the EU was also political, or whether the political dimension has been omitted. Second, the challenge is to create this space. Now, the institution of political pass through a coordinated and plural, participatory action of citizenship.

Representative democracy, as said at the beginning of this chapter, is often not enough. Or at least, this is the perception of the citizens themselves. If the constitution of a European political space cannot rest only on moments of elections and on the institution of political representation, it is after all necessary that its complementary antagonist — the direct, active and plural participation — is really such, that is to say, that it is not only open to but also addressed to all citizens. For this space to exist, it must be opened by a plurality in movement. For there to be a European political space, European citizens must all contribute to its formation/

In conclusion, the current political challenges must be addressed, starting with the problem of the permanence of a political space. But the notion of political space must now find a way to account for a constant shifting and externalization of borders into the sea and onto the sovereign territory of non-European states in response to the movement of migrating people.


  • 1 In Hobbes’ intentions, his whole philosophical system would have encompassed three different domains: bodies, humans and the state (Elementorutn Philosophiae Sectio Prima De Corpore [1655]; Elementorutn Philosophiae Sectio Secunda De Homine [1658]; and Elementorutn Philosophiae Sectio Tertia De Cive [1647]).
  • 2 Hobbes wrote the text known as Behemoth in 1668; its full title was: Behemoth: the history of the causes of the civil wars of England, and of the counsels and artifices by which they were carried on from the year 1640 to the year 1660.
  • 3 Schmitts claims are highly contestable. Restall (2003), for example, argues that in the 1600s, European conquest was not a project of empire as it would become in the 1700s and 1800s.
  • 4 According to Czech philosopher Jan Patocka, human existence is articulated through three interrelated movements: the first movement of anchoring, a second movement consisting of work and self-expansion, and the third movement of transcendence.
  • 5
  • 6 It is worth noting that when Italy’s former Minister of the Interior Matteo Salvim decided to close Italy’s ports to migrant vessels, he explicitly referred to former Australian Prime Minister Tony Abbott’s “Stop the Boats” policy as the best model to contrast migration. I am referring to Operation Sovereign Border (OSB; 2013—ongoing), Australia’s policy for asylum-seekers aimed at stopping maritime arrivals, which followed the Pacific Solution I & II (2001—2007, 2012—2013); and to Decreto Sicurezza (2018) and Decreto Sicurezza Bis (2019).
  • 7 Due to the dangerousness of the passage through Libya and the closure of Italian ports, the migratory routes have recently changed. The preferred route is currently the one that from Morocco leads into the Strait of Gibraltar, towards Tarifa on the southern tip of Spain and on to the small town of Hendaye on the French Basque border.
  • 8 With this purpose, together with Nadia Urbinati and Etiene Balibar, we were inspired in 2018 to start, jointly at the University of Paris 1 and Columbia, an initiative called Agora Europe — Series on the European Political Space. Agora Europe is a permanent and itinerant agora gathering hundreds of international members whose task is to create opportunities for public debates regarding Europe and migration. Agora Europe also entailed the project of writing, publishing and promoting “Charta 2020”, the first charter of European public goods (our initiative was partly inspired by Jan Patocka, Vaclav Havel and Jiri Hajek’s Charta 77). By definition, a public good is a good that eludes both rivalry and exclusion — a good made available for everyone, such that no one will be competing with another, nor be excluded from use. Public goods, which we could also define as objects of political desire, are thus founded on the principles of non-exclusion and non-rivalry. This amounts saying that even the components of society that did not play a role in the definition of such, and such public good can benefit from it and that they cannot, either potentially or actually, be considered rivals nor be excluded. Charta 2020 represents a project to bring together European and national institutions with academic institutions. It responds to two needs: offering EU citizens contents that interest them directly and in an immediate way; and establishing the goods that are necessary for reshaping the EU political space. It was collectively written at the EUI by several international activists and academics, and was presented at the European Parliament and the Italian Chamber of Deputies (see Di Fazio and Tavares 2019).


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