What happens then when one’s national belonging is diminished/destroyed? One still can exercise their agency: thus, the right to asylum has two parts: to seek and to enjoy it.
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Yasemin Sari*
Introduction:
Despite numerous declarations and their accompanying protocols in response to the calamities of the past two centuries, the question and value of equality continues to be contested. How is one to measure equality? Should it inform the outcome or the procedure of a state of affairs or our decision-making processes? Is it sufficient to suggest that “human beings are created equal” when there are obvious inequalities in both relational and substantive measures?
In this short piece, I will not open the can of worms regarding the multi-faceted arguments addressing varying principles of equality. Rather, I will humbly point to three theses that begin to elucidate the difference that I identify in Kant’s and Arendt’s approaches to the term in its relation to the articulation of human rights. Simply put, while for Kant equality rights apply to the individual as they are premised upon the universal feature of being human, Arendt’s account does not assume such universality—for instance, of constitutive conditions of humanity—nor the default fulfillment of equality for the individual in the mere bearing of rights.
Ultimately, Arendt diverges from Kant’s rather idealistic account to point to a principle of equality that can only come about with political organization (and not beforehand). In this light, Thesis 1 expands on the origins of the principle of equality in the age of Enlightenment. Thesis 2 takes up the failure of recognizing each human being to be the holder of dignity—i.e., of equal worth—and as such, the failure of recognizing the political agency of each human being by considering the example of the refugee. Finally, Thesis 3 shows what social and economic rights should accompany Articles 3, 14, and 28 of the Universal Declaration of Human Rights as adopted by UN in 1948 to allow for the substantive belonging of the human being in community.
Thesis 1: Beginning with the Enlightenment & the principle of equality:
In his timeless 1784 piece, published five years prior to the French Revolution, Kant states that we are not in an enlightened age, but that “we do live in an age of enlightenment.”[i] Contending that the road to enlightenment must go through freedom aided by the elimination of the human being’s self-incurred tutelage, Kant’s perspective regarding the enhancement of human rights stands not only as one of optimism, but also as a marker of humanity’s proper destiny.[ii] As Kant goes against the grain of a tradition that has understood the authority of the church or the state/sovereign to be the ultimate authority for human affairs, he takes the authority of reason—that is, the sovereignty of the individual—to be the starting point for our ethical and political life. The universality of such reason (and the individual’s sovereignty) is what makes Kant’s conviction revolutionary when held up against the social contract theorists who came before him, who were trying to motivate a political order through the desire for self-preservation, the fear of imminent death (à la Hobbes), or some inherent fellow-feeling (à la Rousseau) that may or may not be present in everyone. Daring to think for oneself to exit the state of self-incurred tutelage has been the motto of an age of increasing liberties and rights. The motivating element behind this shift in social and political structures, what we today call modernity, is the assumption (and position) of the inherent equality of human beings that are worthy of equal rights. Such equality was premised upon an equal ability to judge the rightness and wrongness of actions, which becomes the ground for what we today call human rights.
The forceful articulation of the equality of human beings (à la Kant), and our inherent compassion/sympathy (fellow-feeling) that may ground it (à la Rousseau), while implicit in the establishment of international law, are still far from having been established in practice. The inhumanity demonstrated in the two world wars in the century preceding ours can be said to justifiably have revived the enduring discussion on the status of rights, whence they come whether they be natural or metaphysical, universal or only locally realized. While we are no longer in an age of Enlightenment, it is also highly doubtful that we have reached any enlightened stage that is worthy of Kant’s formulation in his piece.
Writing in the aftermath of the Second World War, Hannah Arendt takes up what she calls to be the “paradox” of human rights in her Origins of Totalitarianism as she elucidates the experience of statelessness—and hence, rightlessness—in a post-War Europe in a twofold manner.[iii] The first paradox is of the order of declaration: “The paradox involved in the declaration of inalienable human rights was that it reckoned with an ‘abstract’ human being who seemed to exist nowhere, for even savages lived in some kind of social order” (Arendt, OT, 291). The second is of the order of loss:
The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance (Ibid., 302).
The first paradox regards the subject of the declaration: humanity as the placeholder of the subject of the rights that belonged only to certain individuals (traditionally, nationals as evinced by Burke’s criticism) can merely point to an “abstract human being” that simply does not exist. The second paradox regards the difficulty of attributing and realizing rights for an individual who has “lost” the qualities that make up her political agency. By suggesting that the guarantee for rights still belongs to the equalizing force of a political order, Arendt lays bare the difficulty of accomplishing what the universal human rights discourse takes as its starting point, that is, the agency of the human being to be able to determine their actions regarding their own life plans.
Arendt’s criticism of the condition of rightlessness then strikes right to the heart of the matter in her eloquent criticism of the so-called universal human rights, which since their birth in the 1789 French Declaration had been subject to a plethora of revisions and adoptions, without, however, changing what lay at their core: equality. This principle of equality was a necessary but not a sufficient condition for the exercise of liberty. As such, while the equality in rights is crucial for establishing an egalitarian and democratic society, the intentional dismissal of the thorny question of social equality continues to complicate the matters.[iv] Still, the equal ability to judge not only in a state of nature coming out of self-interest, but in a civil society by aligning oneself with others’ freedoms and subjecting oneself to the laws one can author is the ultimate manifestation of being recognized in who one is as a political agent. While the equal ability to judge can be understood as a transcendental (necessary and universal) condition of having equal rights, the way in which such equality can become an empirical fact is by virtue of having a voice in matters that pertain to one’s own life conditions (and the demos at large).
Thesis 2: Xenophobia 2.0.:
The ideal of such moral equality and the practical aspiration for it in UN’s adoption of the Universal Declaration of Human Rights (UDHR) in 1948 have done little to stem the tide of the xenophobic sentiments that are mostly disguised as patriotism (or a form of conversative or liberal nationalism) in public discourse today. Such dehumanization was clear not only in the calamities of the twentieth century, but also recently in the ongoing refugee crisis. Leah Cowan cites an astounding example is cited in her Border Nation:
No, I don’t care. Show me pictures of coffins, show me bodies floating in water, play violins and show me skinny people looking sad. I still don’t care. [. . .] Some of our towns are festering sores, plagued by swarms of migrants and asylum seekers, shelling out benefits like Monopoly money. Make no mistake, these migrants are like cockroaches. They might look a bit ‘Bob Geldof’s Ethiopia circa 1984’, but they are built to survive a nuclear bomb. They are survivors.[v]
Such dehumanizing and racially motivated statements exemplify the type of “factual propaganda” Arendt understands to be more effective than Goebbels’ rhetoric of painting those “the persecutor had singled out as scum of earth—Jews, Trotskyites, etc.”; “actually,” Arendt goes on, they “were received as scum of the earth everywhere” (OT, 269), ultimately paving the way to their extermination.
To be sure, what Arendt diagnosed in Origins was not only that human rights were being violated—for that was self-evident—but that statelessness had become a sign of the violation of what she enigmatically called a “right to have rights.” She states:
We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation. (OT, 296)
What this expression implies in relation to a principle of humanity could lay the groundwork for articulating the conditions for the political agency of the refugee anew, while at the same time addressing Articles 3, 14, and 28 of the UDHR in the light of this analysis. By taking seriously Arendt’s skeptical argument that the right to have rights can only be “guaranteed by humanity itself,” I will briefly allude to what a concrete principle of humanity would entail in contrast to a metaphysical one that has informed previous rights-based accounts of what we owe to refugees.
Thesis 3: Human Rights and A Right to Have Rights
It is hardly controversial to suggest that a regime of universal human rights aims at the recognition of the human being as the rightful claimant of capacities that would make a life valuable (O’Neill, 2005; Raz, 2007; Parekh, 2004; Gundogdu, 2014). This recognition is due to the moral personhood (or dignity) attributed to human beings, wherein they are able not only to set but also to pursue their life goals with sufficient safety and liberty. Yet, on the other hand, Michael Ignatieff’s “pragmatist minimalism” as described by Wendy Brown, suggests that “human rights activism is valuable… simply because it is effective in limiting political violence and reducing misery” (Brown, 2011, 132). Understood thus, human rights should try to approximate the reduction of suffering. This point is important, albeit incomplete.
The human being as the rightful subject of these rights also has a voice that cannot be subjected to the arbitrary will of another or silenced without legitimate justification. However, there are people who are not only suffering but who have also lost their voice and their ability to represent themselves: among these we can count undocumented migrants, indigenous peoples, felons, and refugees.[vi] (It should be noted here that such a voice is usually understood through political representation or rights that one can exercise as the lawful member of a bounded territory.) So, the injustice has both structural and political components. The regime in which refugees finds themselves harmed by state and by other civil agents (through marginalization and exploitation) poses a structural injustice. In the meantime, the lack of voice or representation and effective exercise of their rights is both a structural injustice and a violation of their human rights (or a right to have rights).
The international legal developments that have taken place since Arendt wrote the Origins cannot be said to have been in vain regarding the situation in which refugees (who are not always necessarily stateless) find themselves. The international treatises lay out clearly the right to asylum, and other rights that people with refugee status have.[vii] However, the two salient features of the Convention definition of a refugee—that they are “outside of their country of origin (or habitual residence),” and that they cannot go back due to “fear of persecution”—makes their status as rights-bearers quite complicated. Refugees—through no fault of their own—lack the voice that would allow them to partake in democratic decision-making processes that pertain to their own fate, since most refugees escape places where legitimate authority has fallen or where there is an ongoing civil war, or where they are (in fear of) being persecuted due to some particular social group membership. Simply put, their political agency is put on hold: they effectively don’t have a place to which they belong or a proper addressee to have their voices heard. As Arendt puts it in the Origins, “The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective” (OT, 296).
This simple fact becomes more curious when we look at a few articles of the UDHR, which is supposed to enlist universal human rights that each human being has:
Article 3: Everyone has the right to life, liberty and security of person.
Article 14.1: Everyone has the right to seek and to enjoy in other countries asylum from persecution.
Article 28: Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
A person seeks refuge when their “right to life, liberty, and security of the person” is in danger. More specifically, when one loses their ability to exercise liberty and their security is threatened, they try to escape/flee the situation and at least save their life and recover the possibility of living a good one. The lived experience of having no security and living in a present of constant fear is not conducive to having life plans, or any sense of the future. This strongly echoes Hobbes’ depiction of life in a state of nature that is not only “nasty, brutish, and short”—but also “solitary.” The absence of belonging to a community (apart from the forced/imaginary community of “refugees” whose individuality is seldom recognized) presents a state of isolation that is not just spatial but also experienced through the inability to be understood due to not speaking the language of the arrival port/state one to which one flees. Arendt’s perspective on the refugee lacking recognition more than the criminal still has resonance. Mostly, refugees are understood to be a “mass” rather than unique people with personalities, preferences, and self-identified future plans.
Such a situation does not of course render the refugee merely a voiceless victim: that one does not simply give up on life or does not wish to submit to persecution is all in line with the agency of the human being; we simply want to choose how we live. In the current international legal regime, national belonging coupled with moral agency (freedom) allows for such a choice. What happens then when one’s national belonging is diminished/destroyed? One still can exercise their agency: thus, the right to asylum has two parts: to seek and to enjoy it.
The seeming simplicity of the right to asylum is deceiving in a twofold manner: (1) the right to asylum cannot be effectively exercised when one does not have the material means to actually seek asylum (Sciurba and Furri, 2018); and (2) the right does not correspond to a duty on any particular state agent as the addressee of the claim. The challenge of human rights is not remedied by one’s “entitlement to a social and international order” in which these rights “can be fully realized,” but such entitlement becomes a reason to continue working on realizing these rights (or even by the right to nationality). One first needs to be in a place where they can be visible as moral agents to be able to then decide out of their own volition whether they wish to obtain citizenship (here equivalent to nationality) in that place.
Briefly put, the framework of being in a place and substantive belonging would have practical implications for the refugee regime. As such, the mere lack of interference would not suffice for the appearance or establishment of such belonging. Prima facie, such belonging can be articulated through the totality of Articles 3 (life, liberty, security), 14.1 (seeking and enjoying asylum), and 28 (realization of rights and freedoms) of the UDHR, while these need to be supplemented by the following social, economic, and civic rights for a person to have an actual possibility to substantively belong and be recognized in their humanity:
- Right to work: to be of use in the world and be self-subsistent.
- Right to education (and language courses where necessary): to have the opportunity create and pursue life plans; to understand what goes on in one’s environment and to be understood.
- Right to healthcare: to have the basic condition to continue living and working as one does.
- Right to childcare: to have the ability to not choose between caregiving and doing what is necessary to live and flourish.
- Right to move: to recover a sense of self that is not immobilized, oppressed.
Let us take an example of how such substantive belonging would play out in the social arena: that is, one’s participation in public in general. For this, let me briefly allude to Barbara Cassin’s account of “the plurality of languages” in her Nostalgia: When Are We Ever at Home? Cassin offers a response to her own question in the very last sentence of her work: “…When we are welcomed, we ourselves along with those who are close to us, together with our language, our languages” (Cassin, 63). Arendt’s insights into sovereignty and belonging to a community can illuminate the point. While Arendt understands belonging to a group to be a “natural” condition, she thinks of belonging to an organized community to be an artificial (political) one (cf. her Gaus interview; Cassin, 43).
In making clear that she did not belong to a German “people” (Volk) but rather to a German state (and the language), Arendt decouples the question of (national) identity from language (see also Cassin, 48, 52). When language is no longer the property of a “people,” it can be taken up as common to an organized community in which one can find a place for herself. Nevertheless, such decoupling also shows the problematic aspect of “required”/“desired” assimilation, despite at times seeming and being necessary for building and inhabiting a world. For instance, the Syrian refugee may find it difficult to exist in Turkish because of not having the language, but also because their own is not generally welcomed. Moreover, cultural imperialism (pace Young) as a form of structural injustice makes it difficult (if not altogether impossible) to feel as an equal to belong if one does not sound or look like a member of the dominant group.
In the end, perhaps the questions of the value of equality as outcome and procedure are not easily disentangled from each other. In the acknowledgment of how our policies motivate or hinder equality, or of how they honor or hurt our political agency, we can begin figuring out why Arendt’s enigmatic articulation of “the right to have rights” still has a lot to contribute to our current human rights regime pertaining to the predicament of refugees and other oppressed groups alike.
Yasemin Sari Dr. Sari completed her PhD in Philosophy at the University of Alberta in September 2015. She was a DAAD Post-Doctoral Researcher at Goethe University, Frankfurt in 2016. As a political philosopher, her work mainly focuses on democratic political theory, especially as it relates to human rights, extra-institutional recognition, and the borders between citizen and non-citizen. Her current research takes up the global refugee crisis.
* Yasemin Sari Dr. Sari completed her PhD in Philosophy at the University of Alberta in September 2015. She was a DAAD Post-Doctoral Researcher at Goethe University, Frankfurt in 2016. As a political philosopher, her work mainly focuses on democratic political theory, especially as it relates to human rights, extra-institutional recognition, and the borders between citizen and non-citizen. Her current research takes up the global refugee crisis.
[i] Immanuel Kant, “What is Enlightenment?” in Critique of Practical Reason, 290.
[ii] Ibid., 289.
[iii] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Press, 1973).
[iv] George Lefebvre, The Coming of the French Revolution, trans. R. R. Palmer (Princeton: Princeton University Press, 1947), 169-181.
[v] Katie Hopkins, 17 April 2015 the Sun as quoted in Leah Cowan, Border Nation: A study of migration (London: Pluto Press, 2021), 56.
[vi] In the following, I am not going to worry about the legal distinctions drawn between refugees and asylum seekers.
[vii] Not every asylum seeker is recognized as a refugee once they leave their country of origin; sometimes, as in the case of Syrian nationals in Turkey, they remain under a “temporary protection program” without being granted refugee status or the rights that would accompany such status.