Inclusion Through Conflict: Irregular Migrants, Bonnie Honig, and Political Rights

ABSTRACT

Irregular migrants are strongly affected by the migration policies of the state in which they reside, while also being excluded from influencing such policies. Their practical access to political freedom remains limited, as most human rights instruments recognise the state parties’ sovereign right to deport irregular migrants from their territory, and thereby from the jurisdiction which grants them human rights. Several legal scholars have previously considered the tension between universalism and particularism, and how it limits irregular migrants’ access to human rights and public services. The aim of this article is to situate that conflict in the sphere of political rights by examining the protection of political activities. Using Bonnie Honig’s concept of pluralistic antagonism, I will explain how the tension between universalism and particularism in human rights may affect this issue, and how it can prove useful for irregular migrants.

KEYWORDS:

• Irregular migrants
• Bonnie Honig
• political rights
• human rights
• particularism

1. Introduction

In media as well as in research, irregular migrants¹ are often depicted as characterised by political apathy. They may be portrayed as workers, mothers, or simply humans, but rarely as political subjects acting out of free will. This is not entirely without reason, as the border policies that affect their lived realities aims towards exclusion, and as such severely limits their possibilities for acting. A change in the legislation or implementation of already existing laws may affect every part of an irregular migrant’s life, while their opportunities to influence or prevent such changes are very limited, due to the imminent threat of deportation. As a consequence, human rights law is the often-chosen alternative for providing this group with a more decent life. This practice is accompanied by two problems. First, the risk of deportation or detention makes it difficult to rely on the state as a guarantee of one’s human rights. Second, while human rights law may reduce suffering, it rarely enhances agency in a broader sense. As Wendy Brown, among others, has argued, the discourse of human rights is focused on the pain and suffering of the individual, rather than comprehensive projects of justice, thus limiting the individual concerned to the identity of the victim. Moreover, as human rights require governmental institutions to be effective, the individual claiming them risks merely exchanging one type of subjection for another.²

Does this mean that human rights entirely lack value for irregular migrants? In this article I will explore the interplay between self-organised irregular migrants and international human rights law. After presenting a background of the issue in the next section, I will outline to what extent the political activities³ of irregular migrants are protected under international law. Thereafter, I will analyse how self-organised irregular migrants integrate human rights rhetoric in their political work. Two mobilisations in particular will be studied: We Are Here in Amsterdam and Young in Sweden in Stockholm. I have examined press releases, media statements, and presentations, as well as conducting an interview with a member of the We Are Here movement in June 2017. Finally, I will explain what impact human rights may have for irregular migrants, despite its many flaws, by using Bonnie Honig’s theories on antagonism.

2. Mobilising Irregular Migrants

As a starting point, we may note that political activities in general enjoy a strong protection in human rights law. Freedoms such as freedom of assembly, freedom of association, and freedom of expression are perceived as having been crucial in the creation of modern liberal democracies. Besides enabling individual self-fulfilment, these freedoms are considered to promote active participation in democracy and secure the effective protection of human rights and the rule of law.⁴

However, as democracy is primarily enacted through the state system, the right to affect the public policy of a political community is limited to that community’s members. When democracy is organised in units, a connection is required between the unit and the people involved in the democratic process.⁵ In nation-states, this connection takes the form of the citizenship. Rights such as the right to vote and the right to stand for election are generally reserved for the citizens of a state.⁶ In some countries, foreigners have electoral rights, but primarily at the local level and usually after having resided in the country legally for a certain amount of time.⁷ Organising democracy in units draws a dividing line between the members of the political community and the others. The exclusion of non-members has thereby become a prerequisite for democratic influence and self-determination.⁸ This approach can be exemplified by the situation of guest workers in Europe during the post-war era. Being migrant workers, they were expected to observe a kind of devoir de réserve (duty not to interfere) and abstain from political activity. As they were not considered potential citizens, but merely workers, their role was in the economy and not in politics.⁹

In short, political actions by foreigners have often been perceived, throughout history, as controversial and undesirable. This is particularly the case for irregular migrants, who are not only perceived as outsiders but as unwanted outsiders. Irregular migrants are also, by definition, at constant risk of detention and deportation. As a consequence of living under this perpetual threat, irregular migrants experience significant difficulties in accessing their formally granted human rights.¹⁰ Fear of detention and deportation often causes a certain level of isolation and can make it difficult to trust others. While associational activities such as trade unions and other organisations may break this isolation and contribute to the irregular migrant’s social network, which is essential for someone living with precarious employment and outside the protection of the welfare state, interacting with others also raises the risk of being exposed.¹¹

Irregular migrants’ need to blend in as much as possible in order to avoid deportation further complicates their exercise of political rights, which usually entails a certain level of visibility. While political rights are individual rights, they also come with a collective dimension. The freedoms of assembly and association require others to assemble and associate with, and all political rights, as different forms of freedom of expression, require a recipient. Moreover, for political rights to fulfil their democratic function as engines for social change they presuppose, to a certain extent, conflict and disturbance.¹²

Despite these obstacles, irregular migrants do occasionally mobilise. According to Barbara Laubenthal’s comparative study of political organising by irregular migrants in Europe in the 1990s, movements often emerge following a change of migration policy. This is particularly the case if the change is major, and goes from tolerance of irregular migration towards a well-implemented prohibition. When regularisation channels are abolished or the rights of irregular migrants revoked, this is perceived as a provocation which causes mobilisations to emerge.¹³ A similar finding is made by Milena Chiementi and John Solomos, who argue that stricter immigration policies alone are insufficient to give rise to mobilisations – the change also needs to be perceived as unfair. Furthermore, organising is often triggered by a specific event or action which gives the individuals concerned a feeling of having nothing left to lose. Finally, a collective element is required: ‘The mobilization begins when the pain is shared, and thus rationalized and translated into collective action and public discourse’.¹⁴

The risk of detention and deportation does pose a major obstacle for such mobilisations. Irregular migrants are often hesitant to join until there is a complete network or protecting structure for them to act through.¹⁵ Early on, someone has to be the first person taking the risk of being sent back. Later, when the organisation is established and appears to be protected from deportation, more irregular migrants dare to join. In Matthew Willner-Reid’s study of an anti-deportation movement for irregular Afghans in Belgium in 2013, this is illustrated by one of the interviewee’s comment on the early days of the movement:

I said I’d go but I didn’t. People didn’t know at that time, they were afraid. But trust built up over time. People didn’t want to take any risk at first, the journey to come here was too difficult.¹⁶

In Sweden, the majority of the political organising among irregular migrants in recent years have been carried out by those stuck in a legal limbo.¹⁷ The groupings are primarily Palestinians who have been denied asylum and are expected to return to the Gaza Strip. They cannot be deported by force, but returning requires a transit visa to one of the surrounding countries. When they cannot prove that their applications for a transit visa have been left unanswered, they remain without a residence permit but unable to leave Sweden in any legal way.¹⁸ The most recent large mobilisation, Young in Sweden, which had its most active years around 2018, follows the same pattern. Most of its members arrived to Sweden from Afghanistan in 2015 and had been granted temporary residence permits owing to being unaccompanied minors. Their protests are focused on the risk of deportation which will affect them on the day they turn 18, the use of temporary residence permits, and the methods used for determining their age. The activities of Young in Sweden culminated in a massive sit-down strike in central Stockholm in August–September 2017. This manifestation lasted almost two months, despite being attacked by extreme right-wing activists and, as a consequence, being forced to move around different parts of Stockholm by the police.¹⁹

Another major organisation for irregular migrants is the We Are Here movement in the Netherlands. It is a self-organised mobilisation of irregular migrants and supporters which started in Amsterdam in 2012.²⁰ Just as in Young in Sweden, there is no system for official membership, and the movement is organised on a grassroots level with several ties to other organisations, making it difficult to establish its exact size. Since they lack authorisation to reside in the Netherlands, the members of We Are Here are denied housing and not allowed to work. Irregular migrants are excluded from all public services in the country, except for legal aid, medical aid in emergency situations, and education for children under the age of 18.²¹ The members of the group describe the goal of the movement as enabling everyone to live a normal life.²² The strategies on how to reach this goal is as diverse as its members.

The name We Are Here originally derives from a commemoration of the 2005 Schiphol fire, when a detention centre caught ablaze resulting in the deaths of 11 irregular migrants. One of the members active in the movement elaborates on this connection as following:

We Are Here is a movement that answers, in a self-organised autonomous way, spontaneous, the problem that is posed by the Schiphol fire, mainly that: how is it possible that in a democratic state people can be denied their existence, and therefore can be killed without anybody noticing? This not being noticed has been broken by the demonstrations and actions of the undocumented migrants.²³

We Are Here was created by irregular migrants taking action and speaking for themselves with the support of other groups, rather than having to act through already existing movements. By speaking out, its members attempt to raise awareness about the hardships of their situations and on problematic aspects of the asylum system. By coming together as a collective, they were able to share their experiences, build networks, and make political demands.²⁴ Having an association through which to act renders individual acts of resistance such as suicide or hunger strikes less necessary.

Achieving visibility has been an essential goal for We Are Here. Members of the group regularly initiate, organise, and participate in squatting actions, cultural activities, protests, and demonstrations. However, as a consequence, several We Are Here activists have been subjected to deportation and detention.²⁵ This provides us with a practical example of the legal conflict that is at the centre of this article. As freedom of expression and freedom of assembly are human rights, irregular migrants should, logically, have access to these rights by virtue of their humanity. To subject irregular migrants to deportation and deprivation of liberty as a consequence of their enjoyment of these rights clearly poses an obstacle to the universalist ambition of human rights.

How may we understand this issue from a legal perspective? Gregor Noll has summarised the conflict by asking whether jurisdiction is divisible or bundled.²⁶ An irregular migrant is physically present in the territory, while their legal presence remains outside the state’s borders. Jurisdiction is primarily seen as territorial.²⁷ In order to actualise their human rights, the irregular migrant would have to be inside the state’s jurisdiction while simultaneously evading certain parts of that jurisdiction. Put another way: are irregular migrants temporarily protected from the threat of deportation when they are exercising a fundamental human right? On the one hand, irregular migrants have either not applied for or not been granted protection under international law by the country they reside in. Their migration to that country is therefore legally considered voluntary. The individual who makes the choice to enter a certain jurisdiction without authorisation could therefore be expected to accept all of the rights and obligations that this jurisdiction brings. On the other hand, human rights are universal and therefore superior to domestic legislation, including migration law.²⁸ In the next section, we will take a closer look at how this has, or has not, been dealt with by some international legal authorities.

3. The Offered Protection

Several thinkers have previously underlined the inherent conflict in liberal democracies between sovereign self-determination and universal human rights norms. While human rights protection rests on the principle that all humans are equal, the scope of application of human rights instruments is not humanity, but those subjected to a state’s jurisdiction.²⁹ As Hannah Arendt pointed out in the 1940s, international human rights law is built on agreements between sovereign states and will therefore always reflect state interests. This affects which rights are protected and how far that protection stretches. If no state is willing to protect human rights and no institution willing to guarantee them, they simply do not exist.³⁰

In the situation at hand, this conflict is reflected by the state deporting people due to their exercise of political rights. In the following, the protection against deportations of irregular migrants who exercise political rights will be examined in four human rights instruments which each attempt to include or exclude irregular migrants through different means: the International Covenant on Civil and Political Rights (ICCPR), the European Social Charter (ESC), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), and the European Convention of Human Rights (ECHR).

3.1. International Covenant on Civil and Political Rights

The first instrument dealt with, the ICCPR, is a good example of the most common design. Like most human rights instruments, it has a universalist aim and protects all individuals within the state party’s territory or subjected to the state party’s jurisdiction, regardless of nationality or statelessness.³¹ Its protection of political activities is mainly found in Article 19 (freedom of expression), Article 21 (freedom of assembly), and Article 22 (freedom of association).

Immigration status is explicitly mentioned in Article 13 of the Covenant, concerning the procedural protection against expulsions. According to the Article, it protects ‘aliens lawfully in the territory of a State party’. In their General Comment, the UN Human Rights Committee (HRC) has also stated that Article 13 does not protect ‘illegal entrants and aliens who have stayed longer than the law or their permits allow’; a similar wording is found in Article 12, on freedom of movement, which protects ‘everyone lawfully within the territory’. One might argue that the wording of Article 13 indicates exceptions from the general rule, and that other Articles of the Covenant, which cover ‘everyone’, ‘anyone’, or ‘all persons’, would also protect irregular migrants. This would be in coherence with the universality of the scope of application in Article 1(2), which does not mention lawfulness.

There are however other indications that the protection of irregular migrants in the ICCPR is rather weak. In Winata v Australia, a case concerning two overstaying parents who claimed a right to stay in Australia with their minor son, an Australian citizen, the HRC held that ‘there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons’.³² Moreover, the Committee has held in their General Comment on the Position of Aliens under the Covenant, that ‘the Covenant does not recognize the right of aliens to enter or reside in the territory of a State party’.³³ This General Comment also states, regarding the ICCPR’s scope of application, that ‘once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant’ (emphasis added).³⁴ If the aim of this phrase was to emphasise the lack of extraterritorial effects, other formulations would have been better suited.

Despite this, the ICCPR has been applied to irregular migrants by the Inter-American Court of Human Rights, which has interpreted the Covenant as prohibiting discrimination of irregular workers with regard to working conditions.³⁵ This did not protect the workers from expulsion, however. In the 1980s, the HRC gave an indication of when an expulsion order might be overruled, holding that ‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry and residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’.³⁶ Since then, the Committee has developed its jurisprudence on expulsions, offering protection when there is a risk of torture or cruel, inhuman, or degrading treatment, when a state party which has abolished capital punishment expels a person and thereby exposes them to a risk of the death penalty, and when an expulsion would threaten the right to a family life.³⁷ However, there is no clear guidance on whether expulsions which take place as a result of exercising political activities protected under Articles 19, 20, or 21 should be considered an interference in the individual’s freedom. In the absence of any explicit protection, it appears unlikely that states would voluntarily interpret the ICCPR as restricting their right to deport irregular migrants in any situations other than those protected by the HRC. The legal interpretations then fall back on fundamental principles of international law, such as sovereign states’ right to protect their borders.

3.2. European Social Charter

Despite an initial explicit exclusion of irregular migrants, the protective scope of a right might be extended through interpretation. One such example is the ESC. As it is focused on social rights, the only article of relevance for here is Article 5, protecting the right to organise in associations. The appendix of the ESC specifies that certain rights, such as Article 5, only cover foreigners ‘in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’.³⁸ As irregular migrants neither reside lawfully nor work regularly, they are clearly excluded from enjoying the right to organise. Moreover, in practice they rarely originate from countries that are parties to the ESC. At a first glance, irregular migrants therefore appear to be twice excluded.

Despite this, certain provisions of the Charter, which excluded irregular migrants, have been extended to cover them by the Charter’s interpreting Committee, sometimes in complete contrast to their wording. These cases have mainly concerned the rights to shelter, medical assistance, and social, legal and economic protection.³⁹ The Committee has held that the restrictions regulated in the Charter affect different rights in different ways. The rights protected by the Charter are therefore not applicable to those with irregular status,⁴⁰ unless their right to life, the preservation of their human dignity, or their physical and psychological integrity would otherwise be threatened.⁴¹ Considering these grounds, it seems unlikely that the exception would be applicable to the right to organise in Article 5. Organising in trade unions has had a major impact on the life quality of workers but it is a time-consuming project, and to not organise is rarely directly life-threatening.

3.3. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

The ICCPR and the ESC are both examples of classic regulations of irregular migrants in human rights instruments. Traditionally, irregular migrants have been either ignored or explicitly excluded. The ICRMW, was the first international rights-instrument to address the specific situation and particular needs of irregular migrants. Unlike the other instruments dealt with in this section, the ICRMW explicitly includes irregular migrants.

In its focus on workers’ rights, it offers protection of freedom of expression and freedom of association.⁴² This protection is not complete for irregular migrants, however. Regarding freedom of association, the right to join and attend trade union meetings is applicable to all migrant workers but only workers in a regular situation have a right to form a trade union.⁴³ While this does not preclude the involvement of irregular migrants in trade unions, it poses a practical obstacle. Without the possibility of forming their own trade unions they become dependent on already existing national unions, and it has been demonstrated that traditional unions tend to keep their own agendas and rarely show interest in the specific needs of irregular migrants.⁴⁴ Issues of regularisation and border policies, not being questions traditionally dealt with by trade unions, are often ignored.

The protection of sovereignty is repeatedly mentioned throughout the Convention, possibly in an attempt to balance the radical step of granting rights to irregular migrants. For example, the ICMRW specifically states that the protection of irregular migrants’ rights does not affect the state’s sovereign right to regulate admission and exclusion of migrants.⁴⁵ The migrant’s obligation not to violate any laws and the state’s right to regulate its borders is recognised in several articles.⁴⁶ As no protection against deportation is offered, an attempt to notify the authorities of a violation may therefore only result in the expulsion of the irregular migrant who experienced the violation.

Moreover, in practice, the ICRMW is of limited significance. At the time of writing, only 55 states have ratified it. Despite being negotiated by migrant-sending as well as receiving countries, the state parties are mainly sending countries in South America and Eastern Africa. Receiving countries in Europe, North America, and the Persian Gulf have been more reluctant to ratify the Convention, possibly as a consequence of the requirement to recognise the rights of irregular migrants.⁴⁷ This situation echoes Arendt’s classic criticism that human rights instruments are rarely ratified when they pose a serious challenge to the state’s integrity, regardless of their use for the individual. Thereby, the rights of irregular migrants in the ICRMW cannot be enforced in the countries where they are most needed.

All of the instruments examined so far express a great respect for the sovereign state’s right to control its borders. Owing to very limited authoritative interpretations, it remains unclear how the state’s right to guard its borders is balanced with the requirement that human rights be accessible in practice. In all fairness, there is no case law or general comment stating that a deportation can be in order. However, the burden of implementing human rights instruments rests on states, which tend to have a strong interest in deporting irregular migrants, or at least keeping them in their irregular state.⁴⁸ Therefore, the silence on this matter deprives human rights protection of any practical effect.

3.4. European Convention of Human Rights

The ECHR differs from the other instruments examined in this section because its protection against expulsions in relation to political rights has been developed through case law. The first time the question was raised, in Agee v the United Kingdom, the European Commission of Human Rights held that the freedom of expression, freedom of assembly, and freedom of association in Articles 10 and 11 do not per se grant an alien a right to settlement.⁴⁹ An expulsion does therefore not, in itself, constitute an interference with the freedoms of the Convention.⁵⁰ However, if the expulsion or refusal of entry is specifically aimed at restricting the person’s exercise of political rights, it may constitute an interference under Articles 10 and 11.⁵¹ While the European Court of Human Rights (ECtHR) has recognised every contracting state’s sovereign right to make decisions regarding the residence and settlement of aliens,⁵² immigration measures such as expulsion orders and prohibition of entry may therefore not be used to directly punish or prevent an alien’s exercise of political rights. In that case it needs to be established that the measure was particularly designed to repress the exercise of such rights and stifle the spread of political conviction. If that is established, the immigration measure constitutes an interference and would have to be lawful and proportional to not violate the Convention.⁵³ If the interference does not meet these requirements, however, the contracting state could still bring up Article 16 ECHR to justify its actions.

Article 16 ECHR explicitly allows the exclusion of aliens from political rights. The Article states that ‘Nothing in articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens’. One such allowed restriction is deportation.⁵⁴ Unlike other articles of the ECHR, Article 16 does not place obligations on the contracting states, but functions as an opt-in clause which can be used to dismiss allegations. While other limitations of qualified rights require lawfulness, legitimate interests, and proportionality, Article 16 appears to be completely unrestricted in this sense. As Marie-Bénédicte Dembour has explained, Article 16 was created in exchange for the extension of the Convention’s scope of application to include everyone within a contracting state’s jurisdiction, rather than just its citizens. It was due to this compromise, aimed at widening the scope of the Convention as far as possible, that Article 1 ECHR got its current form.⁵⁵

Article 16 is a consequence of the understanding that aliens are not entitled to human rights protection to the same extent as citizens.⁵⁶ It has rarely been invoked by contracting states before the ECtHR, however, and it has never been relied on by the Court to restrict aliens’ rights. The Court has assessed several cases concerning aliens who have been prevented from entering a country due to their political activity, where Article 16 could have been relevant but was never invoked by the state party involved.⁵⁷ Several calls have been made for its abolishment, but the Article has not been removed from the Convention.⁵⁸

In 2008, Article 16 was severely limited through the Grand Chamber judgment Perinçek v Switzerland. The applicant in this case was a Turkish citizen and political activist who had been convicted of racial discrimination in Switzerland after publicly denying the existence of the Armenian genocide. The Swiss court sentenced him to prison. He complained to the ECtHR and claimed that this was a violation of his freedom of expression under Article 10. At the proceedings, the Swiss government referred to its right to restrict the political activities of aliens under Article 16. In its reasoning, the Court stated that Article 16 reflected an ‘outdated understanding of international law’ and mentioned the repeated attempts to abolish the article. The Court then took into account statements from earlier judgments, such as Women on Waves v Portugal and Cox v Turkey, and noted that in those cases the applicants were found to be protected under Articles 10 and 11 without any reference to Article 16, even though such an exception would have been possible. In Cox v Turkey, the Court paid particularly close attention to the wording of Article 10 (‘This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’, emphasis added) and found that ‘no distinction can be drawn between the protected freedom of expression of nationals and that of foreigners’.⁵⁹ Hence, the Court found that Article 16 ‘should be construed as only capable of authorizing restrictions on “activities” that affect the political process’.⁶⁰ Mr Perinçek’s freedom of expression could therefore not be restricted by Article 16.

The Courts’ findings in this case raises several issues. To begin with, the idea that Article 16 should be restricted due to not being mentioned in previous cases is not entirely convincing, since the article was not invoked by the contracting states in any of the cases referred to. Likewise, the reference to the wording in Article 10 (‘regardless of frontiers’) is not completely satisfactory. This interpretation would contradict the wording of Article 16, which explicitly holds that ‘Nothing in articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens’ (emphasis added). Since Article 16 overrules Article 10, the wording of Article 10 cannot be relevant for the interpretation of Article 16. Most important for the discussion at hand, the Court also fails to explain the requirement ‘affect the political process’ any further. It is well-established under the ECHR and various other instruments of international law that the right to vote and the right to be elected is reserved for citizens. However, all political organising and political expression aims to affect the political opinion of a community in one way or another. Regardless of whether this organising has the form of a political party or a grassroots mobilisation, it may, directly or indirectly, intentionally or accidentally, affect elections within the parliamentary system. The ECtHR does not define in Perinçek v Switzerland which kinds of actions or which level of causality is required for Article 16 to become applicable. Neither does the references to previous case law and the attempts to abolish the article entirely explain why the line for Article 16’s scope of application should be drawn at activities which affect the political process. As such, the question still remains very much open for interpretation.

To summarise, none of the international instruments examined in this section offers full protection of irregular migrants who exercise political activities. The refusal to do so comes in various shapes. While the ESC excludes, the ICCPR ignores. The ICRMW includes irregular migrants, but is therefore not ratified by many states that harbour them, rendering its protection meaningless in practice. Moreover, while the ICRMW grants irregular migrants certain rights, it excludes them from the right that would truly strengthen them as a group: the right to form their own associations. With the new interpretation of Article 16 ECHR, the possibility to deport irregular migrants who exercise political rights has been limited. However, it has not been entirely abolished and it remains unclear in what situations it is applicable, which opens it up for misuse and arbitrariness. Altogether, the perception of migrants as political threats does not appear to be as outdated as the ECtHR suggests, at least not when they lack authorisation to reside.

4. The Difference That Human Rights Make

Despite the relatively low protection offered, both formally and in practice, NGOs working with irregular migrants invoke human rights regularly. As human rights stress universal values, and rights by virtue of one’s humanity, rather than citizenship, they appear to be a useful tool in the struggle for inclusion. This is also reflected in the self-organisation of irregular migrants.

For example, Young in Sweden has repeatedly framed their struggle for regularisation and against certain methods of age assessment as a ‘struggle for human rights’.⁶¹ Following a five-day sit-down strike by the organisation in August 2017, it published the following statement on its webpage:

We have a right to survive. We have a right to demonstrate. We have a right to safety. We have a right to have fun. We have a right to education. We want to live in Sweden and build this country stronger. We want to live in a democratic country. We want to have hope of a better future.⁶²

The We Are Here movement also utilises concepts of human rights and universality in both words and actions. The group’s irregular migrants describe themselves as holding political rights, such as freedom of expression (formulated by the movement as ‘a right to speak’) and the right to demonstrate.⁶³ Its main goal, to ensure irregular migrants ‘a normal life’, also reflects a quest for universalism and leaving behind that which differentiates the group from others.

The value of utilising human rights in this way has been discussed by Bonnie Honig in her theory of pluralisation.⁶⁴ In this theory, she approaches human rights not as an end in itself, but as a tool for creative political action. Honig’s political theories form part of the family of agonistic pluralism, drawing on Hannah Arendt and William Connolly. Agonistic pluralism is preoccupied with questions about what ought to be considered acceptable and legitimate forms of democratic engagement. Agonism, deriving from the Greek term ‘agon’ meaning ‘painful struggle, conflict and competition or dispute’,⁶⁵ embraces conflict as both a practical reality of politics and a sign that democracy is alive and well.⁶⁶ As Honig writes: ‘to affirm the perpetuity of the contest is not to celebrate a world without points of stabilization; it is to affirm the reality of perpetual contest, even within an ordered setting, and to identify the affirmative dimension of contestation.’⁶⁷ As such, agonistic pluralism differs from Habermasian models of deliberative democracy, which emphasise stable, institutionalised modes of politics.

Honig’s theory can also be distinguished from dissociative agonism, not least represented by Chantal Mouffe, drawing on Carl Schmitt. This difference between dissociative agonism and associative agonism (Arendt, Connolly, Honig) has been put forward by Mouffe herself in an attempt to distinguish her own approach from other versions.⁶⁸ While both theories reject deliberative democracy and emphasise communicative consensus and reciprocity, Mouffe criticises the associative agonists on a number of points, claiming that in itself it is insufficient to radicalise contemporary democratic politics.⁶⁹ She argues that Honig in particular devotes too much attention to preventing the closure of debates, and keeping identities and practices open for disruption, which means that politics cannot move beyond the conflict to the question of what should be done. Honig, on the other hand, criticises the ‘us and them’ distinction in dissociative agonism and argues that this projects political struggles onto an externalised ‘other’.⁷⁰

According to Honig, the general endorsement of human rights in combination with their inherent claims of equality and universality creates a ‘discourse of rights’ which can be used in achieving support for one’s political claims. She draws on Jean-Jacques Rousseau’s theory of the paradox of politics, also referred to as the paradox of sovereignty. This paradox was formulated in On the Social Contract as:

For a general will to be brought into being, effect (social spirit) would have to become cause, and cause (good laws) would have to become effect. The problem is how to establish either condition without the previous attainment of the other on which it depends.⁷¹

In other words, as new individuals are born into, grow up within, or migrate to a society, they learn the norms previously established by that society. These norms later become the basis for the society they choose to create. Consequently, a circular relationship is established between the norms and the general will of the population. The already existing laws affect the general will, which in turn affects the laws.⁷² As such, the process of legislating always entails the effect becoming the cause and the cause becoming the effect.⁷³

Honig’s view of new rights claims differs from that of liberal democrats and universalists, which dominates legal discourse. When a new right is being claimed, the latter tend to argue analogically in favour or against this right on the basis on how well it fits in with the already existent rights machine,⁷⁴ similar to what was done in the previous section. Innovative actors who succeed in making new rights are consequently often depicted as having anticipated a right that already existed.⁷⁵ Honig rejects this, and instead depicts the human rights project as constantly changing through antagonism. To consider the development of rights as a logical consequence of the legal system depoliticises such development and makes us refrain from asking whether a new right is just or desirable.⁷⁶

This perspective renders the question of whether human rights in themselves are inherently good or bad irrelevant. What is important is that human rights harbour a universalistic moral which can be used as a tool for advocating political change. While usually framed as a self-contradiction, the ambiguity between universalism and particularism opens up space for discussion and the transformation of society. This change, often initiated by a rights claim, can give rise to antagonism stretching beyond the claimed right. As Honig puts it:

Rights are not just new options to be exercised […] Each new right inaugurates a new world. It transforms the entire economy of rights and identities and establishes new relations and new realities, new promises and potentially new cruelties.⁷⁷

As an example, Honig mentions the claim of a right to physician-assisted suicide. How we respond to this claim does not just affect our view of the right itself. It may create further discussion, and thereby affect our perceptions of much broader subjects, such as the role of health care personnel in society and how we as a species relate to concepts such as death and disease.⁷⁸

Human rights play an ambiguous role in the relationship between law, morality, and politics. They express certain political or moral values which are considered legitimate and less radical or subversive by being codified and institutionalised as human rights norms. A general endorsement of human rights creates a discourse which can be used in order to achieve support for one’s political claims. This discourse is reflected, for example, in the slogans and rallying cries used by the We Are Here movement when exercising their political rights. While some draw on the particular situation of irregular migrants (‘no borders, no nations’, ‘freedom of movement is everybody’s right’), others focus on the desired inclusion (‘we want human rights’, ‘we need normal lives’).⁷⁹ By employing concepts of equality and universality, We Are Here brings their claims into the framework of human rights. Consequently, they attempt to rescript rights that are considered luxuries for irregular migrants, such as the right to work or to housing, as necessities which should be accessible for every human being.

The same process takes place in the previously mentioned statement by Young in Sweden (‘We have a right to survive. We have a right to demonstrate. We have a right to safety […]’). Some of the claimed rights have an equivalence in law, such as the right to survive and the right to demonstrate, while others do clearly not, such as the right to have fun. The self-assurance with which these rights are claimed is strengthened further by the second part of the statement (‘We want to live in Sweden and build this country stronger. We want to live in a democratic country. We want to have hope of a better future’). As these are privileges, something the group wants, they might facilitate the general acceptance of the initial rights claims, which are then even more clearly portrayed as rights, something the group should have. When these rights are accepted by the recipient as legitimate, the perspective shifts to the actors who keep the Afghan minors from these rights, thereby disturbing the order. If they have a right to survive, why does the Swedish state seek to deport them to Afghanistan? If they have a right to demonstrate, why are they repeatedly interrupted by neo-Nazi activists?

The double role of the state in the spheres of human rights law and immigration law echoes in these statements. Some stress the importance of rights and in particular human rights, thereby presuming some kind of sovereign authority able to grant and to ensure these rights. Others recognise sovereign power as the source of their irregular status and protest against institutions such as nations and borders. This might appear incongruent, but, as Honig explains, ‘in the moment, emergent rights-claims are experienced as fragile, contingent and paradoxical. They presuppose and claim already to inhabit a world not yet built.’⁸⁰

Rights may also be claimed through actions, such as effectively exercising the rights denied. As described by Isin, who draws on Foucault’s notion of ‘international citizenry’, migrants and refugees are capable of disrupting contemporary ideas of borders and citizenship by enacting themselves as citizens, for example through protest.⁸¹ In a similar manner, Rigo develops the idea of ‘acts of illegal citizenship’.⁸² She argues that the artificiality of citizenship means that it is constantly contestable and controvertible. Thereby, by acknowledging non-citizens enacting citizenship ‘on the ruptures and contradictions that these inflict upon the institutional definition and codification of citizenship’,⁸³ human mobility and migrant protests are capable of producing ‘a new conflicting order of citizenship’.⁸⁴

In this case, the legal construction acted upon is not citizenship, but human rights. As mentioned above, We Are Here activists have been subjected to deportation and detention due to exercising political activities which fall within the scope of freedom of expression and freedom of assembly.⁸⁵ Since freedom of expression and freedom of assembly are human rights, irregular migrants should, logically, have access to these rights by virtue of their humanity. However, as shown by Chimienti and Solomos, irregular migrants’ access to international human rights depends almost entirely on their political and social reception on the national level.⁸⁶ If an irregular migrant is deported from the jurisdiction where these rights are accessible as a consequence of exercising them, questions are raised about the universality of human rights. Thus, the tension between universalism and particularity within liberal democracies is embodied by the deported activists. Due to the attention that the movement receives, this tension is rendered visible for a broader audience. Moreover, when deportation takes place from a European country, it plays with Europeans’ idealised and fragile self-image as protectors of human rights.⁸⁷ This may therefore attract further attention to the source of the incoherence between the formal human rights protection and the lack of effective access experienced by irregular migrants due to state sovereignty and border control. Despite being central to the creation and exercise of all law, sovereignty is both under-examined and very rarely discussed.⁸⁸

The limitations of the protection offered by international instruments, as examined in the previous section, thereby also become a useful tool for the excluded. By utilising the difference between their situations and human rights norms’ quest for universalism, the excluded can create discussion and achieve social change beyond their own access to the right at hand. Moreover, when the members of We Are Here and Young in Sweden claim political rights they break their own depoliticisation and become political actors. By acting and talking as if the world they demand already exists, they also bring that world into being. In the process they work the paradox of politics.

When society is affected by such actions, the law changes as well. It may begin with legislation, such as the creation of instruments such as the ICRMW. Despite dividing migrant workers on grounds of legal status, the Convention poses a radical step by explicitly bringing the situation of irregular migrants into the human rights sphere. Beside legislation, a change in general attitudes is also reflected in legal interpretations. This may happen subconsciously, through lawyers’ and judges’ feeling of what is ‘fair’ or ‘logical’, and thereby a correct legal interpretation. Sometimes this change is clearly stated, justified by reference to the altered understandings of society. This is often found in the case law of the ECtHR, due to the Convention’s established nature as a ‘living instrument’.⁸⁹ This type of construction allows for the institutionalisation of the politics enacted.

The already-discussed case Perinçek v Switzerland provides us with a clear example of how that happens. There, the rights claim itself occurred when Mr Perinçek, and others in his situation, exercised political rights in a European state of which they were not citizens, thereby breaking the expectation that the alien is a non-political actor. This was put even further into practice when Mr Perinçek, after being sentenced by a Swiss court, refused to accept interference in his freedom of expression. Despite Article 16, Mr Perinçek relied on his political rights as being protected by the ECHR, and filed a complaint to the ECtHR.

To justify the limitation of Article 16 ECHR, the ECtHR referred to the wording of Article 10 (‘regardless of borders’) as well as to previous case law where the article was not invoked even though it would have been possible.⁹⁰ As argued above, these first two justifications stated by the Court are not very convincing from a legal-dogmatic point of view. It seems more plausible that the new interpretation was motivated by the Court’s third justification: the obsolete nature of Article 16 ECHR and the calls for its abolition.⁹¹ This development shows how rights claims made in other contexts, such as those of Young in Sweden and the We Are Here movement, can contribute to changing perceptions of rights in the legal context by affecting the general attitude on the right. While the exclusion of migrants from political activities was once so obvious that it did not require any explanation or give rise to discussion, it is today perceived as illogical and incoherent with the universal nature of human rights.⁹²

When explaining such a change, Honig quotes William Connolly:

Our moral clarity regarding identities or forms of life that were once but are no longer excluded is a product of political victories whereby some succeeded in their effort to migrate ‘from an abject abnormal subordinate or obscure Other subsisting in a nether world under the register of justice to a positive identity now existing on the register of justice/injustice’.⁹³

However, this type of law-centred resistance is insufficient for democratic practices since it is always partnered with its antagonist: state sovereignty.⁹⁴ While universality was further institutionalised through the case of Perinçek v Switzerland, aliens still do not enjoy formal access to political rights to the same extent as citizens. Because law, through its inherent categorising nature, always excludes, legal universality can never be complete, but this kind of emancipatory practice politicises the question and exposes any kind of development to criticism. All attempts to institutionalise universality create further discussion and antagonism, since they always carry the remainders of their precursors.⁹⁵ Consequently, the paradox of human rights is reproduced. Instead of being the endpoint for political discussion, rights become the engine.

The two situations analysed here, the protests of irregular migrants and the shift in the interpretation of Article 16 ECHR, take place at different moments in the paradox of politics, between the law and the general will. In the initiating stage of rights-claims, carried out at a grassroots level, the concept of universal human rights and the incoherence between its practical effects can be a useful tool for legitimising demands for social and political change. Making such claims may result in a changed perspective of certain rights, which can make provisions such as Article 16 ECHR seem strange and obsolete, as reflected in the ECtHR’s attempts to limit it accordingly in Perinçek v Switzerland.

While human rights are often depicted as universal and equal, and thereby as a protection against politics, it has repeatedly been pointed out that they are not as apolitical as they may at first seem.⁹⁶ Taking a pluralistic perspective, this is not necessarily an issue. While human rights may be political, as in partial and contestable, the conflict between underlying values and the notion of ‘humanity’ may be a valuable tool for changing the current order. We might then turn from what human rights are to what they do. In the cases of We Are Here and Young in Sweden, human rights have effects outside of courtrooms and the professional human rights industry. They are a means employed by much broader movements. Human rights are still dependent on state sovereignty, and thereby on the legal system and on lawyers, but the power to shape the understanding of what human rights are is not reserved for legal professionals. As the legal system is not an isolated island, lawyers and judges are not spared from changed attitudes in society at large.

The human rights concept always flows between law and ethics. In other words, human rights function like a two-sided coin, with one legal-material side and one ethical side. On the ethical side we find values such as universalism, human dignity, and human worth. On the legal side, we find the codification of these values via sovereignty, jurisdiction, and effective laws. Both are concerned with certain norms, and the legal side will often try to make the ethical values a practical reality but rarely fully succeed due to, for example, the construction of the sovereign state on which it relies. Lawyers have a tendency to perceive human rights as an entirely legal category, while others see human rights purely as ethics. Herein lies the strength of human rights as a political tool: they carry legitimacy partly due to their ethos and partly due to their codification. However, the ideas harboured in their ethos do not necessarily have to take the shape of liberal rights, or as something either reactive or proactive in relation to the state.

The two movements discussed in this article are clearly political movements, employing classic methods of politics such as demonstrations. Moreover, their claims of what human rights are tend to be met with resistance from people with other political interests. To be fully effective, this type of antagonism would require a general knowledge that human rights is a kind of politics, which would partly deprive them of their current legitimacy. Here, employing human rights does not per se lead to a juridification⁹⁷ of issues otherwise solved by democratic means. By moving it away from professionals and courtrooms and into the sphere of grassroots mobilisations, human rights as a concept could be re-politicised. It would then become what Honig claims it to be: a type of politics possible to resist and oppose.

5. Conclusion

As has been shown in this article, irregular migrants tend to be excluded from the effective enjoyment of political rights, either directly through the wording of legislation or indirectly due to practical obstacles. Most instruments fail in their guarantee of rights since they do not include protection against deportation, and such protection is essential for irregular migrants’ effective exercise of rights. The main exception is the ECHR. Somewhat contradictorily, it is also the instrument that may offer the widest exclusion since it allows contracting states to restrict all political activities of aliens, even regular ones, that may affect the political process.

By examining the issue through the lens of Honig’s theory, we can see how this exclusion, while being disadvantageous, also harbours the self-contradiction that Arendt pointed out long ago. When irregular migrants, through words or actions, claim the rights they have been denied, they create antagonism which may have effects beyond these rights, such as reshaping themselves as political actors or generating discussions on borders and state sovereignty. Such actions can affect the general attitude on a plethora of subjects, which might later be reflected in the institutionalisation of new rights and inclusions. The concept of human rights is aimed at granting all individuals certain basic rights, and it therefore carries a promise of universality. Because of this endorsement of universality, human rights may still be valuable for irregular migrants despite the lack of practical access, or sometimes because of the lack of practical access. If we turn away from the purely legal perspective and instead consider political theory, it is possible to see other aspects and effects of human rights which primarily take place outside legal structures. Through articulating their claims in terms of human rights, irregular migrants can improve their situation, either by achieving inclusion in the current order or by upsetting the order that excludes them.

Notes

1 In this article, ‘irregular migrants’ refers to those who have either entered a country without legal authorisation or those who have entered with legal authorisation (visa or work permit) which they have overstayed. Due to the subject of the article, I also include those who hold some kind of authorisation, but will face a risk of deportation or detention in the near future.

2 Wendy Brown, ‘“The Most We Can Hope for … ”: Human Rights and the Politics of Fatalism’ (2004) 103 The South Atlantic Quarterly 451, 455.

3 The term ‘political activities’ here covers actions exercised outside of established democratic institutions which aim to achieve social or political change, break the status quo, or influence policies. It can either be communicative, such as voicing one’s opinion in a public space, or be expressed through direct actions aimed at preventing the opposed practice. Throughout the article, ‘political rights’ will refer to rights and freedoms that protect the exercise of political activities, including various forms of freedom of expression, freedom of assembly, and freedom of association.

4 HRC, ‘General Comment 34 – Article 19: Freedoms of opinion and expression’ (102nd session, 12 September 2011) para 3.

5 See for example Michael Walzer Spheres of Justice: A Defence of Pluralism and Equality (Basic Books 1983).

6 Cf. Art 3 of Protocol no 1 to the ECHR and Art 25 ICCPR.

7 David C Earnest, ‘Expanding the Electorate: Comparing the Noncitizen Voting Practices of 25 Democracies’ (2015) 16 International Migration & Integration 1.

8 Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge University Press 2004); Michael Walzer Spheres of Justice: A Defence of Pluralism and Equality (Basic Books 1983).

9 Marco Martiniello, ‘Political Participation, Mobilisation and Representation of Immigrants and Their Offspring in Europe’ (2005) Willy Brandt Series of Working Papers in International Migration and Ethnic Relations 1, Malmö University.

10 François Crépeau and Bethany Hastie, ‘The Case for “Firewall” Protections for Irregular Migrants: Safeguarding Fundamental Rights’ (2015) European Journal of Migration and Law 2–3, 157; University of Oxford, Centre on Policy, Migration and Society (COMPAS), ‘City Responses to Irregular Migrants’ (2013).

11 PICUM, 10 Ways to Protect Undocumented Migrant Workers (2005), 45–47.

12 David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart 2010) 11.

13 Barbara Laubenthal, ‘The Emergence of Pro-Regularization Movements in Western Europe’ (2007) 45 International Migration 101.

14 Milena Chimenti and John Solomos, ‘Social Movements of Irregular Migrants, Recognition, and Citizenship’ (2011) 8 Globalizations 343.

15 Ibid.

16 Afghan C interviewed in Matthew Willner-Reid, ‘Emergence and Decline of a Protest Movement: The Anti-Deportation Campaign for Afghan Asylum Seekers in Belgium’ (2015) 25 Journal of Refugee Studies 505, 513.

17 Hanna Nyberg, ‘Hopp för strejkande palestinier’ SVT (13 November 2014) <https://www.svt.se/nyheter/lokalt/vast/hopp-for-strejkande-palestinier> accessed 8 January 2021; Samuel Larsson, ‘Många hungerstrejkar utanför Migrationsverket i Malmö’ (9 September 2021) <https://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=6251807> accessed 8 January 2021.

18 Swedish Migration Agency, ‘Rättsligt ställningstagande angående praktiska verkställighetshinder m.m.’, SR 25/2016.

19 Ung i Sverige, ‘Uttalande – 5 dagars strejk’ <http://www.ungisverige.nu/uttalande-1/> accessed 8 January 2021.

20 We Are Here, ‘Geschiedenis van Wij Zijn Hier’ <http://wijzijnhier.org/tijdslijn/geschiedenis-van-wij-zijn-hier/> accessed 8 January 2021.

21 Gijsbert Vonk, ‘Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants’ in Richard Plender (ed) Issues in International Migration Law (Brill 2015) 85.

22 We Are Here, ‘We Are Here is Four’ (September 4 2016) <https://wijzijnhier.org/tijdslijn/we-are-here-is-four-september-4th-2016/> accessed 8 January 2021.

23 Author’s interview with We Are Here member, 7 June 2017.

24 Ibid.

25 Ibid.

26 Gregor Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants’ (2010) 12 European Journal of Migration and Law 241, 247.

27 Anne Orford, ‘Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect’ (2009) 30 Michigan Journal of International Law 981.

28 Gregor Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants’ (2010) 12 European Journal of Migration and Law 241.

29 See for example Art 1 ECHR; Art 2 ICCPR.

30 Hannah Arendt, The Origins of Totalitarianism (Harcourt Brace Jovanovich 1976) 290–291.

31 Art 2 ICCPR.

32 HRC, Hendrick Winata and So Lan Li v. Australia (Winata v. Australia), CCPR/C/72/D/930/2000, 16 August 2001, para.7.1.

33 HRC, ‘General Comment 15: The Position of Aliens Under the Covenant’ (27th session, 22 July 1986) para 5.

34 HRC, ‘General Comment 15: The Position of Aliens Under the Covenant’ (27th session, 22 July 1986) para 6.

35 IACrtHR, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, Series A No 18 (17 September 2003).

36 HRC, ‘General Comment 15: The Position of Aliens Under the Covenant’ (27th session, 22 July 1986) para 5.

37 HRC, Kindler v Canada, CCPR/C/48/D/470/1991, 5 November 1993, para 13.2; HRC, Judge v. Canada, CCPR/C/78/D/1086/2002, 4 August 2003; HRC, Hendrick Winata and So Lan Li v. Australia (Winata v. Australia), CCPR/C/72/D/930/2000, 16 August 2001, para 7.1.

38 CoE, European Social Charter (Revised), 3 May 1996, ETS 163, Appendix to the Revised European Social Charter, para 1.

39 ECSR, International Federation of Human Rights Leagues (FIDH) v France, complaint no 14/2003 (November 3 2004); ECSR, Conference on European Churches (CEC) v the Netherlands, complaint no 90/2013 (10 November 2014); ECSR, Defence for Children International (DCI) v Belgium, complaint no 69/2011 (23 October 2012).

40 ECSR, International Federation of Human Rights Leagues (FIDH) v France, complaint no 14/2003 (November 3 2004), para 30.

41 ECSR, European Federation of National Organisations working with the Homeless (FEANTSA) v the Netherlands, complaint no 86/2012 (10 November 2014), para 58.

42 Arts 13 and 26 ICRMW.

43 Arts 26 and 40 ICRMW; Irregular migrants are defined in Art 5 ICRMW as migrants who are not ‘authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party’.

44 Anja Eleveld and Franca van Hooren, ‘The Governmentalization of the Trade Union and the Potential of Union-Based Resistance: The Case of Undocumented Migrant Domestic Workers in the Netherlands Making Rights Claims’ (2018) 27 Social & Legal Studies 596; Markus Gunneflo and Niklas Selberg ‘Discourse or Merely Noise? Regarding the Disagreement on Undocumented Migrants’ (2010) 12 European Journal of Migration and Law 173.

45 Art 35 ICRMW.

46 Arts 34, 68, 69 and 79 ICRMW.

47 Some migrant-receiving countries have applied the ICRMW, such as Turkey, Argentina, Mexico and Libya.

48 Nicholas De Genova, Working the Boundaries: Race, Space, and “Illegality” in Mexican Chicago (Duke University Press 2005).

49 EComHR, Agee v the United Kingdom (1976) DR 7, paras 19 and 22.

50 For similar findings regarding the granting of citizenship, cf. ECtHR, Petropavlovskis v Latvia, App no 44230/06, ECHR 2015.

51 ECtHR, Cox v Turkey, App no 2933/03 (20 May 2010); ECtHR, Women on Waves and Others v Portugal, App no 31276/05 (3 February 2009); see also ECtHR, Nolan and K v Russia, App no 2512/04, 53 EHRR 29 on similar findings under freedom of religion.

52 ECtHR, Abdulaziz, Cabales And Balkandali v United Kingdom (1985) 7 EHRR 471.

53 ECtHR, Cox v Turkey, App no 2933/03 (20 May 2010); ECtHR, Women on Waves and Others v Portugal, App no 31276/05 (3 February 2009).

54 See ECtHR, Piermont v France (1995) Series A no 314 where the deportation was found unlawful due to the applicant’s status as an MEP.

55 Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 48.

56 Ibid.

57 Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 59; ECtHR, Karakurt v Austria (2001) CD 273; ECtHR, Dritsas and Others v Italy, App no 2344/02 (1 February 2011).

58 Parliamentary Assembly of the Council of Europe (PACE), Recommendation no 799 (1977) para 10.c; PACE, Recommendation by the Parliamentary Assembly of 1997 requesting the repeal of article 16; see also PACE, Recommendation 1500: Participation of immigrants and foreign residents in political life in the Council of Europe member states (2001) and PACE, Recommendation 1840: State of Democracy in Europe. Measures to improve the democratic participation of migrants (2008) para 4.3.

59 ECtHR, Cox v Turkey, App no 2933/03 (20 May 2010), para 31.

60 ECtHR (GC), Perinçek v Switzerland ECHR 2015-VI 181, para 120.

61 Fatemeh Khavari, ‘Hur länge ska barnen behöva våndas I väntrummet’ Aftonbladet (20 July 2018) <https://www.aftonbladet.se/debatt/a/XwQllg/hur-lange-ska-barnen-vandas-i-vantrummet> accessed 8 January 2021; see also Fatemeh Khavari, ‘Vi kommer att ta hand om Sverige’ Expressen (23 April 2018) <https://www.expressen.se/debatt/vi-kommer-att-ta-hand-om-sverige/> accessed 8 January 2021.

62 Author’s translation. Ung i Sverige, ‘Uttalande från sittstrejken’ <http://www.ungisverige.nu/uncategorized/uttalande-fran-sittstrejken-ung-i-sverige/> accessed 8 January 2021.

63 We Are Here, ‘Geschiedenis van Wij Zijn Hier’ <http://wijzijnhier.org/tijdslijn/geschiedenis-van-wij-zijn-hier/> accessed 8 January 2021.

64 Bonnie Honig, ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008); Bonnie Honig, Emergency Politics: Law, Paradox and Democracy (Princeton University Press 2009).

65 Oxford English Dictionary online.

66 Chantal Mouffe, Deliberative Democracy or Agonistic Pluralism (Institut für Höhere Studien 2000) 34.

67 Bonnie Honig, Political Theory and the Displacement of Politics (Cornell University Press 1993) 15.

68 Robert Glover, ‘Games Without Frontiers? Democratic Engagement, Agonistic Pluralism and the Question of Exclusion’ 38 Philosophy and Social Criticism 81, 90.

69 Ibid.

70 Robert Glover, ‘Games Without Frontiers? Democratic Engagement, Agonistic Pluralism and the Question of Exclusion’ 38 Philosophy and Social Criticism 81, 95; See also Bonnie Honig, Democracy and the Foreigner (Princeton University Press 2001) 120.

71 Jean-Jacques Rousseau, On the Social Contract: With Geneva Manuscript and Political Economy (St Martin’s 1978).

72 Bonnie Honig ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 88.

73 Bonnie Honig ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 86.

74 Ibid., 104.

75 Ibid., 98.

76 Bonnie Honig, Emergency Politics: Law, Paradox and Democracy (Princeton University Press 2009) 44.

77 Bonnie Honig ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 119.

78 Bonnie Honig, Emergency Politics: Law, Paradox and Democracy (Princeton University Press 2009) 5.

79 Author’s interview with We Are Here member, 7 June 2017.

80 Bonnie Honig, ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 98.

81 Engin Isin, Citizens without Frontiers (Bloomsbury 2012).

82 Enrica Rigo, ‘Citizens Despite Borders: Challenges to the Territorial Order of Europe’ in Vicki Squire (ed) The Contested Politics of Mobility (Routledge 2010).

83 Ibid., 200.

84 Ibid., 212.

85 Author’s interview with We Are Here member, 7 June 2017.

86 Milena Chimienti and John Solomos, ‘How Do International Human Rights Influence National Healthcare Provisions for Irregular Migrants?: A Case Study in France and the United Kingdom’ (2016) 15 Journal of Human Rights 208, 222.

87 Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201.

88 Tendayi Achiume, ‘Migration As Decolonization’ (2019) 71 Stanford Law Review 1509.

89 ECtHR, Tyrer v United Kingdom (1997) 24 EHRR 423, para 31.

90 ECtHR (GC), Perinçek v Switzerland ECHR 2015-VI 181, para 121.

91 Ibid.

92 PACE, Recommendation no 799 (1977), para 1–4.

93 William E Connolly, The Ethos of Pluralization (University of Minnesota Press 1995) 184, quoted in Bonnie Honig ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 97.

94 Bonnie Honig, Emergency Politics: Law, Paradox and Democracy (Princeton University Press 2009) 66.

95 Bonnie Honig, ‘Emergent Thoughts in an Emergency Setting’ in David Campbell and Morton Schoolman (eds) The New Pluralism: William Connolly and the Contemporary Global Condition (Duke University Press 2008) 125.

96 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010); Susan Marks, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57; Julia Dehm ‘Highlighting Inequalities in the Histories of Human Rights: Contestations over Justice, Needs and Rights in the 1970s’ (2018) 31 Leiden Journal of International Law 871.

97 On this concept, see Daniel Loick, ‘Juridification and Politics: From the Dilemma of Juridification to the Paradoxes of Rights’ 40 Philosophy & Social Criticism 757.