COVID-19 Symposium: Returning “Home”–Nationalist International Law in the Time of the Coronavirus

[Frédéric Mégret is a Professor and William Dawson Scholar at the Faculty of Law, McGill University]

One of the most characteristic symptoms of globalization was the fairly significant expatriation of large numbers of nationals for life, work and adventure. This was frequently coupled with a discourse emphasizing the fraying of national identification and the relativity of state affiliation. That discourse was deeply schizophrenic and remains so: it coexisted with the paranoid closure of borders to the ‘unwanted’ migrant, at the cost of untold suffering and inequities. But this contradiction at the heart of globalization was remarkably neglected.

What has been striking about the coronavirus epidemic is the rapidity with which many émigrés, particularly those with the privilege of mobility, have sought refuge in their country of origin. In turn, what has been remarkable in those states is the combination of further closing borders to foreigners whilst going out of their way to repatriate nationals. Many states have launched fairly large-scale repatriation operations, including chartered planes, medical personnel and complex consular assistance. Protection from the virus seems to have been associated with a sort of scramble to “return home” by the hundreds of thousands, even at the cost of accelerating its spread.

To some extent, the closing of borders is a function of a medically determined agenda. But we know better than to think that it was only determined by such an agenda, or rather that this agenda itself is free of its own structuring politics. The decision to prohibit entry to foreigners and, conversely, to deploy resources to bring back nationals at significant costs was one that was over-determined by political and legal considerations far more than it was, strictly speaking, a way of optimally fighting the disease. After all, just as the coronavirus knows of no boundaries, it also knows of no bodily limitations based on nationality: one’s nationals might turn out to be just as infected as non-nationals. Rather, the decision to repatriate seems to manifest a sense of residual but enduring obligation to one’s nationals above all else, perhaps to even resurrect relatively unfashionable older notions of the sort of special obligations that might attach towards aliens, except from the perspective of the state of nationality.

Several phenomena seem implicated by this move. First, a renewed “romantic” emphasis on nationality. “Nationals” are singled out for the right to return before the gates close. It is of course not as if nationality had previously ceased to have any importance, and it has consistently acted as a crucial vector of privilege for at least some in conditions of globalization. But the focus on nationality has been even more relentless and exclusive, narrowly reshaping the contours of “return mobility,” and drawing the line between nationals and the rest. It has recast the state as a somewhat brooding but caring presence, perhaps resurrecting earlier tropes once excavated by Foucault of governing as a “pastoral” mission  (including in its sacrificial function of deciding who to “let die”), where the shepherd is seen to rally its “stranded” flock. Return has sometimes been extended to permanent residents or non-national parents of children who are themselves nationals, but not always or automatically, further highlighting the separation of families as an inherent and not merely contingent feature of migration policing.

Second, the moment evidences a complex and often contradictory concern with diasporas. Diasporas are increasingly meaningful actors in international relations and law. They have voiced their expectations in relation to their state of origin in a range of domains, including when it comes to the ability to return and repatriation. States of nationality have been receptive and relatively sympathetic to the plight of their citizens abroad, which they increasingly rely on for remittances or political clout (although those have noticeably dropped in India or Kenya for example). At the same time, diasporas remain doubly vulnerable: to the host state and society which may accuse them of having imported the virus; to the state of origin, which may view their return with suspicion.

States of origin have been caught in this paradox of gratitude and ingratitude to their populations abroad, straining cherished solidarities: whilst Lebanon, Ethiopia and Armenia have already called upon their diasporas to contribute financially to the fight against the coronavirus, Romania has explicitly called, “with deep sadness but also sincerely,” for its diaspora not to return, lest it bring infections back with them. What use is a diaspora as a source of remittance, moreover, if it rushes “home”? The diaspora, furthermore, is a fragile concept: when push comes to shove, it is still only passport holders who have been able to return. For example, India has suspended the “visa free” entry privileges of “overseas Indians” in the wake of the epidemic.

Third, the reaction to the outbreak has foregrounded an almost archaic notion of “protection”. States have acted fast and forcefully to provide a form of shielding that may be illusory but which they felt was needed. That protection has been understood to involve the need for repatriation, the sooner the better, as if borders and territory could provide a certain immunity. It has led to new geographies of movement and quarantine that straddle the domestic and the international. That sort of protection was traditionally understood as being offered at the state’s discretion (and indeed foreign services seem to be mindful of not setting too much of a precedent), but it is increasingly presented as if it were a duty owed to nationals abroad, a new form of extraterritorial public service that may even flow from human rights. That surfeit of protection for the select few, of course, coincides in some countries with a further undermining of protections for foreigners, particularly unlawful immigrants.

What will be the consequences of these evolutions, especially if they become even more entrenched in months to come? Globalization was always a half-truth or a half-lie depending on one’s perspective, a phenomenon as much symbolizing the freedom of movement for some and its impossibility for others. In that respect, COVID-19 may at least make more visible, within globalization’s hinterland (a broad Western-Chinese axis), what had long been obvious to everyone else, namely some of globalization’s inherently abusive and exploitative proclivities. A whole branch of the discourse of globalization devoted to extolling the virtues of a relatively carefree expatriation (for those who could manage to emigrate and immigrate in the first place) has been put in doubt by the increasingly calibrated separations between the previously intimately connected (US-UK, US-Canada, Hong Kong-China, Schengen). In its wake, what we are witnessing is not the return of the border (the border had never left) but perhaps a doubling down on its role as semi-porous membrane designed to both exclude, detain, and privilege.

Indeed, this resurgence could also allow states to double down on their exclusionary practices in the name of defending the nation, as part of a sort of renewed prophylactic Hobbesian pact. The State owes much more of its construction to the fear of infectious diseases from abroad (often associated with migrants) than is commonly acknowledged. States have never been in a better position to exact concessions from a populace, moreover, than when presiding over a panic-inducing emergency. The epidemic, at any rate, is already manifesting new heights of controls on human mobility, spurred by a sort of unholy competition between the relative merits of authoritarian or liberal systems in tackling the epidemic.

In that respect, the sort of ostentatious, even caring concern exhibited for one’s nationals abroad can be usefully contrasted, for example, with many states’ tremendous reluctance to repatriate those of their nationals suspected of having joined DAESH, leaving no doubt that even solicitousness for one’s nationals (let alone the attitude to non-nationals) remains a highly bifurcated affair. The lines of nationality – or at least the sort of nationality that is deserving of the state going out of its way to provide protection – can sometimes be subtly redrawn to distinguish between nationals, a phenomenon manifest in relation to dual nationals or racialized nationals.

Whither international law in all of this? When it comes to globalization, international law was as much implicated in its unleashing, as it was privy to its inequities. It could yet serve as a vehicle to generalize techniques of tracking and surveillance that have long been developed at borders, in the fight against terrorism, or by various totalizing institutions of the state (most notably, the prison). Human rights are already being touted as a precious bulwark against the worst of abuses and they will undoubtedly have a role to play. But their implication in the proclamation of states of emergency and in technologies of statehood as well as their methodological nationalism make them a precarious guarantee against the processes of exclusion characteristic of the border.

Already the discourse of rights and exceptions, limitations “for reasons of public policy or internal security”, “extremely critical situations”, and proportionality is being deployed with familiar, and possibly lethal, vagueness at a time when the EU’s own commitment to both internal mobility and external asylum was itself, needless to say, in crisis. Human rights’ failure to problematize the inequities of the international system itself – as opposed to some inequities within states – also suggests a risk of remaining at the surface, when the project of globalization is very much what is at stake. Whether human rights can maintain a critical edge in light of the imperative but potentially authoritarian maintaining of (national) life at all costs remains an open question, but the experience of the two decades following 9/11 does not offer much hope.

This should incite us as a profession to turn our minds with urgency to the sort of communal and transnational solidarities that ought to emerge not only to make fighting against the outbreak bearable (including disruptive solidarities such as South-North ones in evidence here or there), but to clarify what we might be fighting for beyond COVID-19. The challenge is to imagine how international law might not drift back to its default position of guaranteeing the status quo, let alone of ratifying further exclusion. It is precisely that effort, however, that is being made difficult by our current fragmented condition, the circular isolation in our homes only replicated by the isolation within our states. It is ironic but timely, then, that solidarity is the theme of this year’s ESIL forum, which was to be held in Sicily (Catania) in a few weeks, and was one of the first events on the international law calendar to be postponed.