Gregor Noll

Why Human Rights Fail to Protect Undocumented Migrants

In this article, I depart from the factual difficulties of undocumented migrants to access a state’s protection mechanisms for avowedly universal human rights. I relate this aporia to two competing conceptions of territorial jurisdictions. Drawing on the Convention on the Rights of the Child and the Migrant Workers Convention, I separate the sphere of the political community (the polis) and that of the household (the oikos) in developing a political theory of undocumented migration. It rests two central tenets: one is a tributary transaction between sending state and host state, in the course of which the undocumented migrant worker is offered without conditions attaching, yet with the hope of remittances flowing in return. This offering relates to the oikos, which makes available a limited degree of protection under labour law. The second is a contractual form of submission by the undocumented migrant worker, which is structurally analogous to the master-slave relationship developed in Hobbes’ defense of war slavery. This is related to the polis, which denies all meaningful political activity to the undocumented migrant (as reflected in the denied right to found labour unions). Finally, drawing on Werner Hamacher’s work, I analyse how human rights are intrinsically related to a position of privacy, which escalates into a form of isolation under the structures producing undocumented migrants.

Introduction: The Laws of Undocumented Migration

An introduction to the special issue of the European Journal of Migration and Law dealing with undocumented migrants.

The Miracle of Generative Violence? René Girard and the Use of Force in International Law

In this article, I apply Rene Girards theory of generative violence to the international law relating to the use of force. I argue that texts of international law make gestures of referral towards an immanent normativity on the fettering of divine violence. The means to this end is a form of sacrificial violence that seeks to promote the preservation and cohesion of the ‘international community’. The structuring of this violence through international law and its repeated staging reproduces the relationship of prophecy to miracle. Empirically, I draw mainly on excerpts from the 2006 US National Security Strategy.

Analogy at war: proportionality, equality and the law of targeting

This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.

Security in a Liberal Union: EU Asylum and Migration Control Policies

In this contribution I argue that the asylum and migration control policies of the EU are usefully analysed as an expression of liberal thought. I will show how the roots of these policies go all the way back to the creation of the Union in the 50s and illustrate how this heritage affects the prevailing rules in the areas of migration and asylum. I shall also highlight how this order was paradoxically strengthened during the crisis of 2015 and 2016. I will explain why the concept of solidarity in EU law is poorly constructed and map possible solutions. If the EU is serious about its liberal identity it cannot completely deny the rationality and free will of the asylum seeker. The question is if there is a reformist alternative: a complement to the present protectionist system which acknowledges the rationality and free will of the asylum seeker without demanding utopian or revolutionary wonders of the Union in its present form. I test whether humanitarian visas could constitute such a complement, where the asylum seeker and the EU Member State meet in a rational discourse before the asylum seeker has decided to travel to Europe. As the Court of Justice of the EU has practically written off this option, I inquire whether this might tell us something of how the particular form of liberalism that the EU represents can be articulated.

Nostalghia: A Nordic International Law

Is there a Nordic approach to international law? I argue that a substantive Nordic approach to international law is absent today, and go on to explore, in an essayistic form, why the question of a Nordic international law would emerge today and how the craving for Nordic identity might be overcome.In a first step, I look into select evidence relating to the use of force, to international recognition and to international humanitarian law to show the material vacuity of contemporary Nordic cooperation in key areas. The epoch of Nordic legal entrepreneurialism taking off during the 19th century Nordic international law is now ending, and non-alignment with it.So why have a special issue on a phantom pain? This brings me, second, to ask how the melancholic longing for a ‘Nordic International law’ might be transgressed. Here, Andrei Tarkovsky’s Nostalghia of 1983 comes in. It confronts us with the question of what imperatives – legal or other – grow from our melancholia for homelands and persons no longer with us.