The hearbreaking image of a drowned toddler on the shores of Europe reminded us all of the responsibilities towards others on this planet.  Human ties towards distant ‘others’, however, have historically been loose and fickle. Only rarely do people feel closely committed to the needs and troubles of others beyond their immediate family. Distance usually decreases empathy.  One of the reasons that states appeared was to deliberately overcome this innate human tendency to prioritize close relatives over strangers.  If human settlements were going to work, large communal groupings required closer ties among people who did not interact daily on a face-to-face basis.  To accomplish this, national groupings took on the trappings of families (the ‘motherland’, ‘fatherland’, ‘homeland’) and encouraged people to imagine the state as their proxy family writ large.

However, creating states to bond national groups together had a counter-effect, it created a new category of humans: outsiders and ‘others’ who were encountered only when travel (either by explorers sent out from the homeland or migrants coming in) brought them together.  Today, states have created an elaborate edifice of laws, institutions, informal rules and practices to help them classify and categorize how ‘strangers’ are treated. Partly, these rules have emerged from historical experience and are particular to individual societies.  For example, the European memory of the mass starvation and refugee crises following World War II has shaped the image of what a refugee is today.  Ultimately, because European states had an inordinate influence on the creation of global order in the post-War era, European ideas have heavily influenced international laws. A ‘refugee’ is a classification of people distinct from a ‘migrant’ in two main ways:  1. a refugee has rights to legal process, material support, and protection in the country they are seeking asylum; and 2. a refugee has the right to not be forcibly returned to their country of origin.

Today, states have created an elaborate edifice of laws, institutions, informal rules and practices that help them to classify and categorize how ‘strangers’ are treated.

However, states have jealously guarded their own rights to define someone as a citizen or to keep them out of the national family.  In doing so, states have created legal categories that make no sense when applied to real humans, because states’ rights and human rights conflict.

This background helps us to understand more clearly the landscape of political arguments going on now around migrants, as well as the ways in which the rules are being interpreted and applied.  It also allows us to recognize the limitations of these rules, in particular the ways in which these rules have arbitrarily divided humanity into categories that systematically de-humanize them and construct them as ‘strangers’, outside of the ‘families’ created by states.  The insistence on the application of these rules by state leaders reveals their emptiness.  Insisting that migrants register in the first country of arrival, that they be registered in order to apply for further transit, and that they somehow demonstrate and document that their movements are involuntary, are levers designed to ensure that they remain outside of the national family, not that they be embraced by the protections of refugee law.  Insisting that the solution to the problem is to ‘solve the Syrian conflict’ or ‘eliminate ISIS’ is similarly meant to distract from the fact that migrants have already waited 4 years or longer for the world to do something to help them, and that many thousands of refugees remain in countries closer to their countries of origin in the hope that they may be able to eventually return.  Some of these host countries, including Turkey, have been unwelcoming and hostile to their presence, driving them further afield to find sanctuary.  The insistence that migrants be prevented from ever settling in their countries of refuge ignores the legal invocation that they not be refouled back to danger.  The legal distinction between ‘economic migrants’ and ‘refugees’ is increasingly nonsensical, and the insistence on respecting it only reveals the arbitrariness of the categories.

In light of these realities, it is amazing that some have now decided to re-invoke humanity and the home/family analogy, and have even opened up their homes and lives to help strangers.  The defeat of the

The legal distinction between ‘economic migrants’ and ‘refugees’ is increasingly nonsensical, and the insistence on respecting it only reveals the arbitrariness of the categories.

Harper government in Canada is a rebuke of a legislative program designed to reinforce categories of separation and exclusion, to invoke tribalism in the legal guise of statehood. It is understandable, if not totally forgivable, that this welcoming comes late, and that it comes only with the ever-closer proximity of the suffering of others. Maybe that’s the best that humans can do.  However, states are another matter.  States are created by humans to encourage the embrace of strangers into a larger family. The next step is to build on the initiatives begun by states to encourage the expansion of the national family and to begin to challenge the arbitrary categories that divide humanity up.  The human willingness to challenge the separation created by distance has communicated empathy throughout the state system.  What remains is to communicate this to states in the future through new laws that strengthen human ties rather than state rights.