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1 Introduction: The Duty of Care in International Relations
Halvard Leira and Nina GrĂŚger
This book deals with the relationship between states and citizens beyond the borders of the state, more specifically with the Duty of Care, which states hold toward their citizens. Our central argument is that in a world where both statehood and citizenship are changing, due to various forms of mobility, increasing numbers of people moving beyond borders and multiplying risks, the statesâ Duty of Care is becoming an ever more pressing political, legal and moral concern. At the same time, state capacity is under pressure. In making this argument, this volume provides a set of original contributions to International Relationship scholarship. These contributions offer novel insight into the study of citizenship, security, identity, ethics, intervention, control, migration, diasporas and diplomacy. The topical chapters demonstrate the diversity and significance of the Duty of Care in the early 21st century, but also the boundaries beyond which care is not offered. Politically, the Duty of Care forces us to engage with community and its limits. Academically, the insights from analysing the Duty of Care will provide two things; a better understanding of how crucial, if disparate, processes of belonging and differentiation are driven by parallel logics within and across cases, and more precise analysis of the relationship between states and individuals in contemporary international relations.
The underlying question driving the analyses, is what happens with ties of solidarity, community and responsibility when citizens move outside the territory of their states? In short, what are the scope, content and mechanisms of the social contract beyond the state border? We approach this through the analytical concept of the Duty of Care, which we import from tort law, ethics and human relations. In introducing this concept to the study of international relations, we do not primarily seek theoretical innovation, nor do we engage with the legal and ethical principles inherent in the Duty of Care per se. We are first and foremost interested in the articulation, practice and execution of the Duty of Care, with the chain of care stretching from state to citizen, often through intermediaries. Thus, we seek to link together a number of phenomena and practices concerning the relationship between states and citizens, which are usually seen as unrelated. Some of these are relatively abstract, such as the general articulation of citizenship and identity, others are concrete, for instance related to protection of citizens in crisis situations. The Duty of Care offers us a prism for studying both abstract and concrete phenomena, and it is imminently scalable; traceable from parliaments to passport controls.
In the remainder of this introduction, we lay out the premises, logics and content of the book in more detail. In the next section, we introduce a varied set of current international challenges concerning the relationship between states and citizens. In the third section, we present the historical background for why states are interested in citizens beyond the border, and the different forms this interest has taken over the centuries. This feeds into the discussion about the contemporary understanding and practice of the Duty of Care in the fourth and fifth sections. Here we discuss how the concept allows for new insights into current topics, as well as how it reconfigures and ties together insights from existing literatures. In the sixth and final section, we specify how one can go about studying the Duty of Care, with reference to the ensuing chapters of the book. In this section, we emphasise the chains of care, the power relations inherent in them and the dilemmas and paradoxes that arise from asserting and claiming a Duty of Care.
Challenges for states and citizens beyond the border
Hardly a day passes without news headlines pointing to the challenges confronting states and their citizens beyond the border. Will foreign students be able to come to Britain after Brexit? Can Northern European retirees take their pensions to Spain and still retain rights to medical care in their country of origin? Who is responsible for getting foreigners out of Algeria when international petroleum companies are again attacked by terrorists? What should be the relationship between the state and ethnic diasporas? How should states handle foreign fighters returning from Syria or protect diplomats and militaries abroad when embassies or bases come under fire? These are diverse questions, and only a small sampling of the many such questions arising continually.
The potential scope and growth of these challenges are illustrated by the number of people travelling across borders on a regular basis related to work, studies and holidays. Almost 1.2 billion tourists crossed boundaries on overnight trips in 2015, a number that has doubled since 1997 (UNWTO 2016: 15), and on top of this comes business travel, where yearly spending is above 1.2 trillion USD per year (GBTA 2016). The number of people relocating more or less permanently is also high, with the global stock of migrants estimated to be 258 million in 2017, or around 3% of world population (UN DESA PD 2017: 1).1 Some of those relocating seek new citizenship, while others attain double citizenship or maintain their original one. This increase in travel and relocation has put new strains on the relationship between states and citizens, highlighting if and how states can maintain and manage the safety and security of citizens abroad and the broader implications for authority and legitimacy. Statesâ duties toward their subjects quite simply do not stop at the border, while at the same time the traditional diplomatic and consular tools might not be adequate for handling these duties.
Beyond sheer numbers, particular challenges are associated with those who go abroad to work in areas with weak governance, or in risk-prone or conflict areas, such as journalists, researchers, aid workers, diplomats and security personnel. Journalists and researchers are at increasing risk when doing their work in repressive states or when studying conflicts, as are aid workers. In these instances, their employers, but often also private security providers and insurance companies, are the intermediaries in the chain of care between the state and its citizens. The same goes for the official representatives of states or those who execute official policies or international mandates. Diplomats and consuls are supposed to care for their compatriots abroad but might find themselves in need of care when crises happen. Even soldiers partaking in peace operations or interventions might be in need of care, a care which may or may not be extended to those cooperating with the citizen-soldiers on the ground in supporting roles. Even more questions arise about if and how to articulate care for those who volunteer (or are forced) to fight for other entities than their state, a question with long historical roots and current relevance in a number of conflicts.
Crises also serve to accentuate the Duty of Care, and the increase in the number of citizens abroad implies that more situations can be articulated as crises. The Bali bombings (2002), the South East Asian Tsunami (2004) and the evacuations during the Lebanon war (2006), the Libya crisis (2011) and the Saudi Arabian intervention and subsequent civil war in Yemen since 2015 have underscored the scope of the challenge, the potential backlash for states with inadequate responses or states unwilling to receive assistance, as well as the lengths states will go to, in order to protect their citizens abroad. This also goes for single incidents, especially if picked up by the international media, like the killing of the regime critic and journalist Jamal Kashoggi in the Saudi embassy in Ankara in 2018. Everyday and mundane emergencies, such as compatriots being jailed or dying abroad might not rise to the level of crisis, but still have the potential to challenge the relationship between authority and legitimacy, indeed the social contract, between states and their citizens.
The protection of citizens abroad might seem like a concern only for wealthy states and their citizens. But while mobility rights do favour citizens of rich democracies (Mau 2010), in sheer numbers migration originating in developing regions outnumbers migration originating in developed regions (UN DESA PD 2016: 1â2). Furthermore, while rich, western democracies have traditionally been the most eager to take care of their citizens abroad, other states have followed suit. India evacuated most people from Yemen in 2015 (around 5600), including a substantial number of non-Indians (Sakhuja 2015), while China evacuated more than 35,000 nationals from Libya in 2011 (Zerba 2014; see also Parello-Plesner & Duchâtel 2015 on Chinaâs policy on the matter more generally). It even seems to be the case that these topics are being discussed in more depth in states where these responsibilities are recently invoked and acted upon, than in states with longer traditions for acting abroad in aid of their compatriots. Efficient crisis management demonstrates state sovereignty, which is a particular concern for states that define themselves as up and coming. Such concerns, however, also matter to host states, and in crises, governments have refused to accept foreign assistance, potentially weakening the Duty of Care for foreign citizens on their territories, for the sake of internal legitimacy and international status (GrĂŚger & Lindgren 2018). The degree of care provided for citizens abroad is thus tied not only to political system, but also to state capacity, the perceived necessity for domestic legitimacy and the responsiveness of foreign host governments.
Even if these trans-border flows of people, the trans-border character of problems and possible trans-border solutions are widely discussed, scant attention has been paid to how these phenomena may affect the fundamental contractual relationship between states and their own citizens abroad. Briefly put, how and under which circumstances can the part of society that is located outside of the borders of the state be protected? This is a question of vital political importance for states, who face potential crises of legitimacy if citizens who suffer from crises abroad are left to their own devices. However, it is also an acutely important analytical question, with implications for how we think of identity, statecraft, sovereignty, the co-constitution of the domestic and the international, the privateâpublic dimension and the limits to the societalisation of security. To understand the importance of the Duty of Care today, it is crucial to engage with how such a duty arose in the first place.
The origins: polities and people
Overall, in the Western trajectory, we see three major changes as particularly relevant to the configuration of legitimacy, authority and care. First, the replacement of the personality of laws with territorial rule over political subjects, which set formal limits to the care that could be offered by rulers to subjects; second, the emergence of nationalism and the perceived organic constitution of a unitary people, which made care beyond the border a moral obligation; and third, the emergence of welfare states, which made care beyond the border a juridical and political necessity.
Until the early modern period, the scope of political power and responsibility (and thus also authority and legitimacy) was defined by the relationship between a polity and its people, not by territory. Under the principle of the personality of laws, the legal status of individuals was defined by the relationship between individual and governor. In political theory as late as in the 16th century, Bodin saw sovereignty âas spatially elastic. Because subjects could be located anywhere, and the tie between sovereign and subject was defined as a legal relationship, legal authority was not bound territoriallyâ (Benton 2010: 288). One way of framing this relationship between ruler and ruled would be through what Foucault (2007: 123â130) referred to as pastoral power, the power of care that the âshepherdâ holds over a âflockâ of live individuals, not yet legal subjects. And until the territorialisation of the state in the 16th and 17th centuries, this pastoral power in principle followed the subjects wherever they were. In practice, this power was of course severely limited by proximity.
In most polities, the personal ties between governor and governed were between a prince and subordinates. In early-modern Europe, this feudal dominion was gradually replaced with sovereign power, where the state constituted itself as the holder of power over subjects (de Carvalho 2016), inhabiting a bounded territory. This process accentuated the question of care beyond the polity. The concern about subjects moving away from the reach of the polity was one of the key drivers in the process of territorialisation (Brett 2011: 170â171). Only with a clear territorial dimension to subjecthood did it become possible to conceive of subjects as being outside of the polity, and thus necessary for states to differentiate how to care and control.
The distinction between order and care on the inside, and the protection from disorder/anarchy on the outside would gradually become a staple of western political thought (Walker 1993). The idea that external protection was the core external activity and duty of the polity, and a key part of the social contract between the governor and the governed, took hold in much scholarly thinking about relations between polities. Early-modern polities did care about subjects, but primarily in the sense that they were providers of taxes and possible soldiers. Indeed, the capacity of the states to extend both control and care beyond the boundary was extremely limited. To the extent that power was projected toward subjects beyond the border, this was the sovereign power to command, not a pastoral power of care.
In the late 18th century, nationalism, nascent political liberties and the growth of mass media gradually turned subjects into citizens and parts of a national, biopolitical and organic whole. Both the state and the emerging civil society became more concerned about compatriots abroad, and the steady growth of print media during the 19th century made it possible to follow their destinies in much more detailed fashion. Colonial uprisings put pressure on states to do something to keep compatriots safe and help those in need, as did the ever-expanding migration across the Atlantic in the 19th century. The gradual expansion of consular networks demonstrated how states were oriented toward care for citizens abroad, and not only protection and control (Leira & Neumann 2008; 2011). Irredentism (with the political goal of changing the borders so that perceived co-nationals in other states could become part of a mythological nation), compatriots in danger abroad and the challenge of migration all illustrate how the imagined community of the nation (Anderson 1991: 6â7) was not limited strictly to citizens, and how a duty of care could reach beyond the borders; pastoral power and care for the nation was in principle limitless. Even so, when ...
