Thou Shalt Not Oppress a Stranger:¹ On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique

Joseph H.H. Weiler ²

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And I charged your judges at that time ... judge righteously between a man and his brother, and the stranger that is with him (Deu.1.16)

I. Introduction

In this article I examine the manner in which the European Court of Justice has interpreted the limits to its human rights jurisdiction in cases concerning non-EC nationals. So far the Court has interpreted these limits narrowly. This whole area has now become socially, politically and ethically most delicate. I think the current jurisprudence is unsatisfactory both in its reasoning and its results. I also think that it is important for symbolic, and not only practical reasons, that the voice of the European Court, within the proper bounds of the judicial function, should be particularly pure. I shall therefore try and demonstrate why the case-law is `wrong' and in need of review.

Frequently, the classical language of law - dispassionate, dry and technical - conceals the dramatic social context to which it relates and masks the underlying ethical precepts and ideological prejudices on which it is premised. In the analytical and critical part of this essay I shall follow these hallowed cannons of our discipline.³ But in this brief introduction I take the licence to transgress the line. The treatment of aliens, in the Community and by the Community and its Member States, has become in my view a defining challenge to an important aspect of the moral identity of the emerging European polity and the process of European integration. Hermann Cohen (1842-1918), the great Kantian philosopher of religion, in an exquisite interpretation of the Mosaic law on this subject⁴ captures its deep meaning in a way which retains its vitality even in today's Ever Closer Union. It has been usefully summarized as follows: `This law of shielding the alien from all wrong is of vital significance... The alien was to be protected, not because he was a member of one's family, clan, religious community or people; but because he was a human being. In the alien, therefore, man discovered the idea of humanity.'⁵

It is this idea of humanity which the Community, or the Union, must safeguard. It is thus chilling, though not altogether unexpected, to watch the recent spate of ugly, at times murderous, racist, xenophobic and anti-semitic incidents sweeping through Europe, West and East.⁶ There will, of course, always be those who perpetrate evil. They are few. But there are also those (us) who avert their eyes, who pretend not to see, not to be involved. They are the many. It is the many who allow the few.⁷ It is thus the reaction to xenophobia which matters most.

The reaction of European public authorities - representing `the many' - has been complex. At one level, practically all public authorities have issued stern statements of disapproval regarding these events. Notably, the recent Maastricht Summit, at the very moment of making some first moves towards the establishment of a European Citizenship, issued a Declaration on Racism and Xenophobia expressing its concern and revulsion `... that manifestations of racism and xenophobia are steadily growing in Europe'⁸ especially towards third country nationals. But this principled reaction has not been without its own ambiguities. Electoral politics being what they are, politicians of all persuasions, at all levels in many Member States, have resorted to a new tough parler vrai or even parler cru type of discourse, which while situated in the context of an inevitable debate on immigration policies, has had the effect of sanctioning or even inflaming, the excesses of the street.⁹

The very shaping of an external immigration policy - deciding who may come in and who will be left at the gate - involves a discourse which can easily pollute internal attitudes towards aliens within the polity. Two examples are sufficient to illustrate this point. Economic considerations such as weighing the utility of the migrant to the labour force and the costs of absorption to the host country are, perhaps, inevitable but they constitute a signal which feeds an attitude whereby aliens are regarded in utilitarian terms, like foreign investment or imported electrical energy. Likewise, concern for the cultural, linguistic and ethnic integration of aliens may send a signal which accentuates both the otherness of the alien and an intolerance of the dominant culture towards such otherness.

So long as immigration policies are in place with their explosive social and political sensibilities they will continue to feed internal xenophobic sentiments. This danger will persist, must be acknowledged and countered.

For the European Community there is a special responsibility - not only the legal responsibility under Community law (which I shall analyze below) - towards non-Community nationals but also towards itself, its own identity, self-perception and ethos.¹⁰

Elsewhere I have argued¹¹ that one of the core ideas of the process of European integration has been to conceive of Europe as a community which does not only condition discourse among states but also spills over to the peoples of these states and thus seeks to influence relations among individuals. Take, for example, the classical provisions for free movement of workers. On the one hand they have a de-humanizing element in treating workers as `factors of production' on par with goods, services and capital. But they are also part of a matrix which prohibits, for example, discrimination on grounds of nationality, and encourages generally a rich network of transnational social transactions. They may thus also be seen as intended not simply to create the optimal conditions for the free movement of factors of production in the Common Market. They also serve, echoing Hermann Cohen, to remove nationality and state affiliation of the individual, so divisive in the past, as the principal referent for transnational human intercourse.

Here then is a dilemma and challenge of post-1992 Europe in this context. The successful elimination of internal frontiers will of course accentuate in a symbolic (and in a real sense too) the external frontiers of the Community. The privileges of Community membership for its Member States and of Community citizenship for individuals are becoming increasingly pronounced. In one way, the more these external boundaries are accentuated, the greater the sense of internal solidarity. (Thus, forgivably perhaps, the Community could not resist the resort to statal symbols such as flag and anthem.¹²) But in the very concept of citizenship a distinction is created between the insider and outsider that tugs on their common humanity. The potential corrosive effect on the values of the community vision of European integration is self-evident. Nationality as referent for interpersonal relations, and the human alienating effect of Us and Them are brought back again, simply transferred from their previous intra-Community context to the new inter-Community one. We have made little progress if the Us becomes European (instead of German or French or British) and the Them becomes those outside the Community.

Thus, there is a delicate path to tread, one which is supportive of the process of European Union but acknowledges the dangers of feeding xenophobia towards non-Europeans and the even deeper danger towards one of the moral assets of European integration - its historical downplaying of nationality as a principal referent in transnational intercourse.

The task of traversing this path safely will not only fall on public authorities. There is an important role to be played by education (and educators), private groups, the Church and other `non-State' actors. But public authorities will be in the forefront.

I have already mentioned the ambivalence of holders of political office and the constraints of electoral politics. Similar doubts may be expressed as regards bureaucracies. Two factors may be mentioned, briefly, in this regard. First, the closeness of public officials to elected politicians and to the shaping and execution of immigration policies will tend to pull them to one side of the path. Second, bureaucracies tend to suffer from what may be called the banalization of suffering. Faced with large numbers of human problems, these become `cases', the problems become `categories', and the solutions become mechanical. We shall see examples of this even in the few court `Cases' I shall discuss below.

Courts, especially high jurisdictions, are more removed from direct political pressures. They are also removed, one hopes, from the banalization effect. They will have thus a critical role to play in safeguarding the values of common humanity which must counter the exigencies of immigration policies.

In the sphere of application of Community law, the European Court must therefore approach its task of vindicating the rights of non-Community nationals with the full realization of the high stakes involved. Of course, the European Court has to operate within a binding normative framework of rules and principles. But, like similar high jurisdictions, it also plays a role in shaping and developing the binding normative framework within which it operates. Likewise, its pronouncements not only resolve specific disputes but also constitute an important voice in the overall rhetoric which is constitutive of the political culture of the polity.

Appreciation of these high stakes will impact, within the legitimate boundaries of judicial discretion, the way it shapes the normative framework.

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1 (Ex.23:9).

2 Professor of Law, Michigan Law School, Ann Arbor & Director, Academy of European Law, European University Institute, Florence. My thanks to Susanne Roggenbuck for her dedicated and skilful assistance.

3 The post-modernists among my readers can relax. The inability of a truly value-free discourse is acknowledged and the possibility of exposing the contradiction of any normative language is always fun. It is a price I readily accept if the alternative is normatively empty critique. Cf. Eagleton, Literary Theory (1983) esp. 144-150.

4 Ex.22.20: And a stranger shalt thou not wrong, neither shalt thou oppress him; for ye were strangers in the land of Egypt. Lev.19.33,34: And if a stranger sojourn with thee in your land, ye shall not do him wrong. The stranger that sojourneth with you shall be unto you as the homeborn among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt: I am the Lord your God. Lev. 24.22: Ye shall have one manner of law, as well for the stranger as for the homeborn; for I am the Eternal your God. See also Ex.23.9, Num.15.15,16, Deu.27.19.

5 J.H. Hertz, Commentary to the Pentateuch 313 (1980 2nd ed.) explicating H. Cohen, Religion der Vernunft aus den Quellen des Judentums, translated as Religion of Reason, Out of the Sources of Judaism Chs. 5, 8 and 9 esp. at 125 et seq. The early Sages, all aliens in one sense or another, explicate the religious variant to this idea in their rendition of Leviticus 19.34 (But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt: I am the Lord your God). Rashi (Rabbi Shlomo Yitzchaki, circa 1040-1105 CE earliest edition of his commentary published in Regio di Calabria, Italy): `I am the Lord your God: Your God but also his God.' Rasag (Rabbi Saadia Gaon, circa 882-942 CE earliest edition published in Arabic in Constantinopol): `I am the Lord your God: I am the God of both of you'. Rabaa (Rabbi Abraham Iben Ezra, circa 1089-1164 earliest edition published in Naples): `I am your God: I am one God when I see you [together]'.

6 This phenomenon has drawn attention worldwide. It became notorious in the USA with the publication of a cover article in the Sunday Times Magazine of 15 September 1991. (Judith Miller, Strangers at the Gate: Europe's Immigration Crisis). See too R. Bernstein, Fragile Glory (1991) at Chapter 9.

7 Nowhere is this better expressed than in Richard von Weizsäcker's moving speech on 8 May 1985 - one of the great speeches of this century:
The perpetration of this crime [against Jews and other `aliens'] was in the hands of a few people. It was concealed from the eyes of the public, but every German was able to experience what [the victims] had to suffer, ranging from plain apathy and hidden intolerance to outright hatred.
...
The nature and scope of the destruction may have exceeded human imagination, but in reality there was apart from the crime itself, the attempt by too many people, including those of my generation, who were young and were not involved in planning the events and carrying them out, not to take note of what was happening. There were many ways of not burdening one's conscience, of shunning responsibility, looking away, keeping mum.
I have addressed this issue more extensively in Weiler, `The Patriarch Abraham, Law and Violence in the Modern Age', in Rechtsstaat und Menschenwürde - Festschrift für Werner Maihofer zum 70. Geburtstag (1988).

8 EUROPE 5628 (New Series) of 12 December 1991, page 6.

9 `Social Parasites' (Haider, Austria); `overdose of immigrants' (Chirac, France) etc. For more see, Miller, supra note 4.

10 Sefer Hachinuch (The Book of Education) published anonymously in Venice circa 1523 gives another deeply captivating meaning to Mosaic alien law. The very weakness of the alien acts as a temptation and the laws of protection serve therefore to prevent us from abusing the power we have (over him or her). `Each of us has the power to abuse the alien, and the Torah warns us to treat him as one of us, and through these interdictions we gain a precious soul, decorated and embellished with fine moral features, and ready to do good as is intended.' (para. 63) In other words, as I argue in the text, this interdiction is not only in the interest of the object of our deeds - the alien - but of ourselves.

11 Weiler, `The Transformation of Europe', 100 Yale Law Journal (1991) 2403 at 2478 et seq.

12 There has always been a flag waving over all manner of public villainies in Western history, and even Beethoven's Op. 125, the stirring Ode to Joy, was played to the victims of the greatest shame of Western civilization. Is it really necessary for the forging of a European consciousness to resort to those statal artifacts? Apparently, yes.

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