Introduction

1One can consider the second half of the last century, with the end of the horrors of the second World War, as the beginning of the slow construction of a new concept of Europe. Not Europe as the site of genesis for conflicts capable of spreading over the whole planet, but Europe as a conceptual laboratory, as a “worksite” of political and legal solutions for a new balance, henceforth constructed around the fundamental human rights of individuals. Even the borders of each political community have experienced a progressive process of relaxing, harmonization and, in an expanding geographic zone, of opening.

2However, in the course of recent years, Europe has rediscovered its s oaf a landing point and ground for passage of enormous migratory flows of individuals coming from beyond its own physical and political space. These are human beings who are living in situations of poverty, of war, of death, and who are trying to leave these places that represent the exact opposition of Europe today. Places where the state is not a protector, as Hannah Arendt wrote, of their “right to have rights,” on the contrary, there it practices “the right to deny any right” to individuals. In comparison to the arrival of migrants, to the complex problems of the management and of the coordination of such a phenomenon, it seems that a delicate conflict between two logics has been produced: the first is typically European, the logic of the fundamental rights of each individual; the second is typically national, the logic of “limes,” of the national border to be protected.

3In light of these initial considerations, I would like to present the results of my reflection according to a two-part structure. First, I will offer a critical analysis of the logic of “limes,” to which I will oppose the logic of the fundamental rights of each individual, that is, human rights. Second, I will support the thesis that considers that the adoption of normative language of fundamental rights has brought about an irreversible metamorphosis of several legal and political concepts. In particular, I will focus my attention on the concept of sovereignty, which has historically created something of a “constellation of categories” like that of the state border. On this subject, I will offer two different ways of understanding state sovereignty in relation to fundamental rights. The first: a sovereignty that is only limited by human rights. The second: a sovereignty founded on human rights. I hope to demonstrate that one would have to maintain this second conception of sovereignty and, consequently, rethink Europe in a way that is more coherent with its foundations.

2 – The logic of state “limes”

4In recent thought, the phenomenon of migrants has provoked a renewed attention for the concept “of boundaries,” “of borders.” [2] One increasingly hears expressions like “national borders,” “state perimeters,” “internal and external limits” of Europe. The emerging thought on this theme seems marked by the attempt to identify the instrumental usage and political design that is hidden behind the use of such a lexicon by political powers. But the idea toward which I would like to draw attention is that of “limes,” a term that is used with great insistence in order to point out the “protected border,” the “line of defense” of the national State. As a point of departure, it seems to me to be very important to consider limes in its original configuration in Roman law. [3] It is a question of a brief, but necessary operation of “conceptual and legal archeology” that is essential for understanding a particular logic that I will call the “logic of limes.” A logic that is unconsciously inherent in the usage of this concept that has also been made by some States outside of Europe.

5As Benjamin Isaac, [4] Stuart Elden [5] and Wilhelm Kubitschek [6] have observed, it is possible to trace a line of development from the concept of “limes,” which has greatly debated among romanists. Originally, the concept of “limes” designated the space that must be left free between two neighboring fields. [7] This term gradually came to designate, in the imperial era, the border line of the Roman Empire (and, in particular, with the emperor Hadrian, a delimited defensive boundary stone). However, this idea of the Roman political domain’s border does not coincide with the modern idea of a system organized by fortified, militarized and stable borders. [8] As Stuart Elden wrote, the imperial limes separated “what was Rome and what was not yet Rome.” [9] The limes, therefore, created zones characterized by a certain fluidity and a strong vocation for expansion.

6Beyond these semantic variations of the idea’s meaning, we can identify an aspect that marks the identity of the original concept of limes, this line that demarcated a required distance between neighboring fields, a space that nobody could claim ownership of. The limes, like city walls, doors, the pomerium of a city, was among the res sanctae [10] and, as such, it unavailable in the framework of human law. The res sanctae could neither be sold nor transferred and they were under divine protection. I would like to point out that I used the word “holy” and not “sacred” because these two terms originally point to two different concepts. If the limes, this line that separated two neighboring fields, were a res sancta, on the contrary, the condition of sacredness, the condition of the sacred man (homo sacer), was gained by those who committed very serious acts according to Roman law; an act that violated the pax deorum (the peace of the gods) or fides (faith). As Luigi Garofalo [11] explained, working from Giorgio Agamben’s reflection, the condition of “becoming sacred” is a “subjective condition” resulting from certain acts and was well regulated by the law, “wrapped in the law.” [12] It is very interesting to recall that, in antiquity, for example, a subject became sacred for having “lifted or moved the boundary stones between lands, violating one of Numa’s laws.” [13] Yet the one who is sacred can be killed with impunity: he is expelled, exiled, erased from society. The one who kills homo sacer, the sacred man, simply gives back to the god that which already belonged to him. [14] The sacratio (the procedure for becoming sacred) and the condition of the sacred man therefore represent the punishment linked to a highly reprehensible action for the Roman legal order.

7I think that this dialectic between that which is holy, as a border line, and that which has gained a sacredness as a consequence of some reprehensible actions can help us to understand the contemporary logic of limes. In fact, our era tends to use the words “sacred” and “holy” as synonyms to roughly indicate that which is inviolable, untouchable, intangible. There you see that, on the contrary, the great waves of migrants reveal a singular paradox. National borders, the boundaries of each State (or what we call “the national limes”) are considered as “sacred” according to the ancient meaning: they become a “sacrificable” humanity for the political reason that currently governs the logic of limes. Indeed, even though they are in a desperate human condition, migrants have attempted to violate what we still claim is inviolable. Therefore, their life can be left without protection on boats out at sea, a life exposed to the risk of death that every challenge at the borders involves, waiting for sovereign States to make their decision. However, to use a category that has been well developed by Giorgio Agamben, they are not nuda vita, a bare life: we know that nobody can deliberately kill migrants. What is instead first sacrificed is the guarantee of their right to continue to live.

8This process of sanctification of borders and of sacralization of those who dare to defy them (in the name of the simple human condition) identifies a very delicate dynamic that not only concerns Europe, but also concerns other regions of the planet. More specifically, this underlying logic of the national limes reveals its problematic nature, its unacceptable nature if we compare it with the logic through which Europe has progressively conceived of itself beginning in the second half of the last century: the logic of fundamental rights of each individual.

3 – The logic of fundamental rights

9The logic of fundamental rights of each individual is therefore at such a level of opposition with the logic of limes that it represents something of a “counter-logic.” From a theretico-normative perspective, and in reference to the rule of law, fundamental rights configure what Luigi Ferrajoli described as “the sphere of the undecidable,” that is, the sphere of “that which no representative power can decide” and of “that which each political majority must set” [15] by specific measures. The importance of fundamental rights is later highlighted by Luigi Ferrajoli: they form “fragments” [16] of popular sovereignty, reduced to their mere “sum.” [17]

10Fundamental rights also represent a basic normative reference for Europe. As we know, Europe has indeed gone beyond the 1948 Universal Declaration Human Rights, which followed the Charter of the United Nations. [18] In order to model a new concept of Europe, the European States wanted to reaffirm the centrality of the fundamental rights of each person through two essential documents. First, in the framework of the Council of Europe, the European Convention on Human Rights in 1950, with the institution of the European Court of Human Rights, that is, a third-party jurisdiction in relation to the States’ jurisdiction, in which the individual and the State are seated across from each other in a condition of parity and in which the State can be condemned. [19] Second, in the framework of the European Union, the Charter of Fundamental Rights, signed in Nice in 2000, which at a later time affirmed the centrality of the category of fundamental rights. In these two documents, the right to life of each human being, and consequently, the duty to guarantee this life, falls to the States, appears as something of a “foundation-right” of all other rights that are uttered.

11In order to understand what the logic of fundamental rights consists of and the depth of this logic, I would like to offer a complementary reading. One could think about the fundamental rights of each individual, about fundamental human rights, as a language. And, if one thinks specifically about Europe, as a common language [langage] of Europe.

12If it is indeed difficult to establish what the common language [langue] of the European States is, it is not so difficult to identify the common European language [langage]; or even more precisely, the language [langage] that has modeled the concept of Europe from the end of the second World War up to today: the language of fundamental rights. A language that one could qualify as performative. But, what does this “performativity” of the normative language of fundamental rights consist of? The language of human rights is performative inasmuch as its adoption entails a partial or total reconfiguration of certain equally fundamental concepts; concepts on which we have traditionally structured our political and legal organizations. In other terms, the more that fundamental rights are named, maintained, crystalized, the more that they are emptied from the inside of the determined concepts and they are transformed, forcing us to rethink them or even to abandon them. And there is one concept that, more than any other, has been subjected to and is subjected to an irreversible metamorphosis as a result of the performative action of human rights: the idea of sovereignty. It is precisely with regard to this idea that I will try to analyze the performative effects of the logic of fundamental human rights.

4 – The performativity of human rights regarding the concept of sovereignty

13We can determine two different levels of performativity of the language of fundamental rights regarding the concept of sovereignty: on a first level, human rights form a limit to state sovereignty; on a second level, human rights become the basis of state sovereignty.

14On a first level, the language of human rights normatively acts on the perimeter, the growth, the limits of sovereignty. We could summarize this first performative effect with the following words: human rights as a limit to sovereignty. Joseph Raz expressed himself in these terms: human rights set limits to the State’s sovereignty because, he explained, they represent the motives that justify, in some conditions, the intervention of the international community in order to bring their violation to an end. [20]

15This first level of performativity of human rights concerns the international system in general, a system that is structured on the basis of the Charter of the United Nations and on the Universal Declaration of Human Rights. In the framework of such a system, the scope of the State’s duties and especially its responsibilities is added to the scope of the sovereign rights of each State, stemming from their equality in the international system. And it is precisely the concept of State responsibility that has increasingly become central within the international community. The doctrine of the “responsibility to protect” [21] attests to this centrality, the responsibility to protect (the title of the International Commission on Intervention and State Sovereignty’s report that was established by the Canadian government in 2000) is more or less explicitly recalled in various resolutions. In this case, the sovereignty of States is identified with the responsibility of each State, and a State that systematically does not respect inviolable rights creates the conditions for the international community’s intervention within its sovereign sphere. Consequently, sovereignty was not expressed as a kind of “shield of defense” that protects the State in its actions, but rather, as legal experts would say, it expresses a criterion of attribution of responsibility to state subjects.

16Behind this first reformulation of a sovereignty limited by human rights is hidden a fundamental theoretical question: which conception of sovereignty are we implying in maintaining that human rights solely represent limits? It seems to me that we are always implying this traditional notion of sovereignty that is usually designated by the expression “Westphalian sovereignty.” By making reference to the 1648 Peace of Westphalia and to the Europe-wide stabilization of the Nation-State model, this model of sovereignty entails that the State, well rooted in its territory and defined by its borders, sovereignly decides to limit itself in relation to other individuals and to other States; it is a “guardian State” from its right to make its national interests and those of its people prevail; in conclusion, it is a state that keeps its right to say “no” when faced with the essential needs of non-citizens. This modality of conceiving of state sovereignty seems to have reemerged in a rather obvious way in the European context with the question of migrants. Indeed, some European States continue to refer to their own sovereignty in deeply Westphalian terms: there is a national territory that must be defended against outside dangers; borders and ports can be sovereignly closed; above all, there are the interests of the people or of national security that are threatened by the arrival of people coming from beyond the European political space. The power of the sovereign decision lies in all of these nuances.

17Out of all of these considerations comes the fact that this first logic of fundamental rights, as a limit to a power set up a priori as unlimited, does not rattle state sovereignty. From this perspective, fundamental rights can only relax or, as Mireille Delmas-Marty wrote, “weaken” [22] sovereignty; one could say that the logic of human rights tries to limit the “dehumanizing burden” of state sovereignty, but without drawing into discussion the fact that the latter word belongs to the State. As Jean Cohen wrote, the international legal signification of human rights is “to prevent and mitigate the abuse of power and of prerogatives” linked to the modality with which sovereignty is “constituted and distributed” [23] in the international order. But then, we can ask ourselves this: is the foundation or the basis of the protection of the fundamental rights of each human being made up solely of treaties, of agreements between States as sovereign subjects, of their good will to choose to limit themselves or not, reserving the possibility of acting otherwise?

18These considerations require that we examine the second level of the performativity of the language of human rights. This second level can neither be generalized nor generally applied. However, one can specifically apply it to the European context and to the concept of Europe that structured it. One could summarize this second performative effect with the following words: human rights not only as a limit, but rather as a basis for state sovereignty. Europe is the geopolitical context of the birth of the idea of sovereignty; the context in which this idea was developed and in which it has progressively changed. In other words, Europe is the conceptual laboratory par excellence of sovereignty, and of its metamorphoses. Nevertheless, a strange paradox is affecting contemporary Europe; a paradox that Étienne Balibar expressed in the following terms: “the typically European notion of sovereignty, a secular product of the history of Europe in which the formation of the people encounters that of the State, proves to be inapplicable to Europe itself.” [24] From the perspective of our considerations, would the typically European notion of sovereignty prove to be incompatible with the Europe of fundamental rights? We would then have to concentrate our efforts in order to redefine this state sovereignty in a completely different way.

19There is indeed a latent and unexpressed logic behind the concept of Europe, a logic that has progressively been developed over the past seventy years, first with the European Convention on Human Rights and the institution of the European Court of Human Rights, then with the Union’s Charter of Fundamental Rights. It does not seem to me that this latent logic of the European system of the protection of fundamental rights is truly the logic of limits, of some kind of space of collision between the persona and the immense power of the state; or even the image of a riverbank that would limit an intrinsically unlimited power that exists independent of fundamental rights. In contrast, I think that the European logic of the protection of human rights would, in truth, reveal the logic of the foundation, that is, of a restrictive direction for each action that engages the power of the sovereign State. In this sense, the fundamental rights of each individual would have had a genetic or chromosomic function in the sovereignty of European States since the second half of this past century. Human rights would not be the site of conflict between the rights of the individual and the limitless power of the State: above all they would be the site of the foundation of this power. And as a consequence, this logic of human rights would entail that every individual, not only the citizen, is in a new relationship with the State.

20This idea of understanding human rights as a foundation of state sovereignty is situated in the extension of the teachings of Norberto Bobbi, [25] Luigi Ferrajoli, [26] of all these philosophers, legal experts, historians, political scientists that consider fundamental rights as the very foundation of the European rule of law based on rigid constitutions. In particular, maintaining that human rights are the foundation of state sovereignty in Europe would mean transposing the essential core of the theory of the rule of law to the level of the theory of sovereignty. At the same time, this idea entails keeping the concept of sovereignty without abandoning it or without getting rid of it on account of the semantic value that it has and on account of its role in relation to the very configuration of the State. This would be an attempt at “rehabilitation” and redefinition of sovereignty, clearly and radically refusing the tendency that has reemerged in recent years and especially in recent months: using the concept of state sovereignty to exercise an arbitrary power, especially toward those who, as migrants, are not “as a right” part of a national community.

21In many respects, we could articulate the idea that human rights are the foundation of state sovereignty in the European framework in three directions: foundation as taking root; foundation as justification; foundation as support.

22In the first direction (foundation as taking root) human rights fix the pure logic of power and of the State’s res judicata, typical of Westphalian sovereignty, in the logic of positive rights; a right, as Hans Kelsen taught us, that is limited or that limits itself by means of democratic procedures and control that are established through rigid constitutions.

23In the second direction (foundation as justification) human rights justify sovereign power, they give it a new and coherent justification: human rights, in other words, represent the raison d’être of the existence of such a great power, such a delicate and invasive power of the state toward man, whose existence it is difficult to deny. Human rights restate the reasons for which the State exists and resists, that is, the reason for which this form of political organization, one that is historically possible, but not necessary, could still be fundamental. In this case, sovereignty would delegitimize itself if it were separated from human rights. If it is true, as Ruth Rubio-Marin wrote, that “states derive their legitimacy from the protection of human rights” [27] on an international level, this is even more true in the European context, where the distinction between internal and external sovereignty of States is more nuanced, and where there is some permeability between what the State does within itself and how the State behaves toward its peers. Let’s consider, for example, the case of Turkey and its request to join the European Union. One must verify that the level of protection and care for fundamental rights is sufficiently high and in line with European “standards” in the domain of internal sovereignty. This is a paradigmatic example of the instrumental value of sovereignty, always “a means to an end” and never an end in itself, because, as Bertand Badie writes, “sovereignty loses its meaning as soon as it is separated from the principles on which it rests.” [28] In the third direction (foundation as support), human rights have the function of ineliminable support for the European constitutional State’s legal architecture. If one reduced the universal fundamental rights to solely fundamental rights of citizens of each State, then the sovereignty of the European model of constitutional states would crumble and would lead to the creation of another type of State. In this sense, inasmuch as the rights of man are both a constructive foundation and a limit for European States, then, as Luigi Ferrajoli put it, [29] fundamental rights are the constitutive foundation and limit of the model of the constitutional State: from this perspective, the limit, if it is well understood and stated, therefore leads to the foundation. European States, then, do not decide to sovereignly limit themselves in order to respect human rights: they cannot act otherwise because their political and legal identity itself would disappear.

24We then must wonder, how is one to define this model of European sovereignty founded on human rights? Is it still a question of Westphalian, territorial, national sovereignty that is only bent or directed toward noble ends? Not at all: it is a question of a different sovereignty, “a united sovereignty” as several European scholars and politicians have pointed out. Let’s recall the preamble to the European Charter of Fundamental Rights: “the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity.” It is then a question of a united sovereignty that is expressed through multilevel dynamics: horizontally united between States within Europe, but not necessarily and solely between European countries; vertically united, between State and individuals, and not only between each European country and European citizens.

25In this European experimentation, in this latent and still unexpressed logic that I previously mentioned, there is probably a strong demand that can be found in the contemporary debate: de-individualizing fundamental rights, recovering their “community” dimension, their truly united dimension, like the right that each individual incontestably holds, but in the interest of everyone. And state sovereignty, interpreted in this way, would constitute a highly effective apparatus for reinforcing belonging to the same “human family” by allocating the effort of protection and recognition of these rights among different national political communities. Bertrand Badie, once again, pointed out the strong call for “transcendence” [30] that is present in the idea of sovereignty. In light of the fundamental rights of each individual, I believe that this call for transcendence entails the following perspective: to transcend, not to abandon, their individual and personal dimension and to accentuate their implications on a collective, community level, linked to the human condition itself.

5 – Concluding considerations

26Now that the two levels of transformation of the idea of sovereignty carried out by the language of fundamental rights of each individual have been reconstructed, and now that the reasons for maintaining a state sovereignty founded on and not just limited by fundamental rights have been outlined, I would like to come back to my point of departure: migrants. [31] I am well aware that migrations are highly articulated, pluridimensional phenomena. They have put the logic of fundamental rights to the test several times in relation, for example, to the problem of economic resources, to their limited nature. However, there is something much more radical and profound in the phenomenon that we have been witnessing in recent months. On this subject, there are two concluding questions that will allow me to take stock of the thought process I have presented. The first question: what do migrants represent in relation to the different logics that I spoke about? One could respond by saying that they represent a precious occasion for putting to the test the effective protection of fundamental rights as well as the overall coherence of a certain model or concept of Europe. But there is a second question that allows us to summarize several aspects of my thinking: what are the dimensions of sovereignty that migrants have experienced in their desperate human condition? In many respects, migrants have experienced the two essential dimensions of sovereignty: space and time. In these two dimensions, there has often appeared what is not the latent logic of a sovereignty founded on human rights, but rather, on the contrary, the logic of the Westphalian decision’s power, which shows with what ease the State can ignore fundamental rights.

27Migrants first experienced the spatial dimension of sovereignty, they have defied the spaces of sovereignty and their logic. As I pointed out at the beginning, space is the most rooted dimension of state sovereignty. The spatial dimension of sovereignty is stated through the category of national territory, true “spatial extension” [32] of this sovereignty according to Stuart Elden. However, it is not only a question of the logic of limes, protected national spaces, that entails migrants in “the dynamic of the sacred and the sacrificial.” The spatial dimension of sovereignty is also used to erase the logic of fundamental rights. By preventing migrants from arriving in the territory of a European State, by blocking boats in the middle of the sea, by closing ports, the State deprives them of the possibility of exercising their right to asylum, what Hannah Arendt defined as “the only right that had ever figured as a symbol of the Rights of Man in the sphere of international relationships.” [33] In doing so, the State shows the profound “asymmetry” [34] of the right to migrate, as Tullio Scovazzi has pointed out. And when the migrant succeeds in arriving, his life is immediately bureaucratized, “administrativized,” it becomes the object of a unitary quantification and of the group, passed through the “sovereign sieve” of procedures, of distributions. Today, we can speak here about a “European limes” as being simply the sum of national borders. In a different manner, there could be a meaning in speaking about a “limes europaeus” that inverts the logic of the sacred and the sacrificial: that is, a limes that is always sacrificial and never sacred, or inviolable, in relation to the guarantee for the right to life of each human being that tries to overcome it by hopelessness or necessity.

28But migrants have also experienced the temporal dimension of sovereignty. Sovereignty is always stated in the exercise of sovereign prerogatives that belong to different powers of the State: executive power, legislative power and judicial power. Each of these powers has differentiated temporalities in the exercise of its own prerogatives, and radically different temporalities in decision-making. The executive is the power whose effectiveness is most immediate: let’s think about the prerogatives of ministers of the interior and the speed with which borders and ports can be closed or opened. By contrast, judicial power’s time is much more dilated (except in exceptional cases), because it is the time of verification and of the search for truth. There, then, the States’ time enters into collision with the time of a migrant’s biological life: how much time can a migrant resist while waiting for States to decide the fate of the boat where he is found? How much time does a court need to establish whether the dignity of the migrant was violated by a State? To what extent does sovereignty’s time take into consideration the time of the life of human beings?

6 – Notice

29In 1987, Edgar Morin published a book entitled Penser l’Europe, which is also the title of the research residency that was granted to me. In the epilogue of this book, Morin wrote: “We must re-root ourselves in Europe in order to open ourselves to the world as we must open ourselves to the world in order to re-root ourselves in Europe.” [35] I have not found more appropriate words for concluding my reflection.

30I hope to have shown that there are already several conceptual, legal and political means for seeing the rights that each individual bears as roots and not as boundaries to the concept of Europe. A concept of Europe that goes far beyond Europe itself and that it is still up to us to construct, on the basis of this latent and unexpressed logic, whose many potentialities we must still unfold. [36]