I.

During the formation of nation-states in the 18th century, it was established that freedom and sovereignty of people could only be achieved by complete national emancipation that happens by inauguration of the national government and establishment of borders or determination of territorial sovereignty. The logic was founded that without determination of national borders the nations would be robbed of human rights. This logic has shown that human rights, otherwise conceptualised as basic rights of the individual, were established parallel with the system of nation-states. The Declaration of the Rights of Man and of the Citizen from the year 1789 otherwise meant a change that announced the emancipation of humans from every leadership or gods' will. But from the very beginning the "paradox of human rights" was in the fact that the declaration counted on "people", or on the "nation" in which the emancipated man disappeared as quickly as he/she appeared. The identification of human rights with the rights of nations was established: since the French Revolution humankind has been pictured as the image of the family of nations, where human rights are of secondary consideration to the rights of the nation and national sovereignty, which has never been more absolute than in issues concerning migration. 

On the declarative level, human rights were defined as inalienable and were supposed to be independent of national governments. But it turned out that in the moment when human beings did not have a proper government and they had to resort to their minimal rights, there was no organ that could protect them and no institution that would ensure those rights. Human rights, inalienable as a rule, have proven to be unachievable whenever there were people involved who were no longer citizens of a sovereign state. Human rights, which supposed to be independent of citizenship and nationality, have namely "melted" with citizenship. Today they exist only when they are related to the rights of a citizen of a certain nation-state (Bobbio 1990, 23). As Arendt says (1948/2003, 371, 373), today we are not capable of defining convincingly that human rights, in contrast to rights of citizens (as members of the national state), even exist in reality; in all cases the loss of national rights means the loss of human rights and inalienable human rights prove unattainable at the very moment when citizenship is at stake - like in the case of migration.

Relations between human rights and national sovereignty point to the "paradox of human rights". Although the European Convention on Human Rights supposed to be universal and supranational, procedures of naturalisation within the area of Schengen borders in their origin determine unequal and limited rights, for example, limited movement possibilities, access to residential space, and employment. At the same time, the (non)realisation of rights is left to nation-states, as the convention does not define the transnational protection of rights (even though this was supposed to be its goal).

The Universal Declaration of Human Rights from the year 1948 acknowledges the right to the freedom of movement, which is interpreted as the right to emigration, but not as the right to immigration as well (Article 13). At this point the discrepancy inherent to the concept of human rights is especially evident. On their principled level, human rights provide protection, while the implementation of rights established circumstances where rights actually do not refer to the citizens, but start functioning as mechanisms for the legitimisation of administration management of the nation-state. The Universal Declaration determines the right to emigration, but does not include provision on immigration, on obligations of countries, which would allow migrants to enter the individual country. This shows that the contradiction between universal human rights and the rights to the protection of territorial sovereignty is built into the very legislation (Benhabib 2004, 11). The Geneva Convention (1951), which determined the principle of non-expulsion of refugees and migrants seeking asylum (non-refoulement), in case their return would threaten their lives, embodies this contradiction as well: it represents a commitment for the signatory states only and thus it does not reach the level of universal protection of refugees' rights. At the same time the signatory states violate the Convention very often, can manipulate the provision of non return and avoid it, for example, on the basis of the mechanism of "a safe third country".[1] Here, the conflict between the interests of the nation-state and human rights, built in the convention itself, is displayed once again. Contemporary institutional mechanisms for protecting human rights, like the Universal Declaration and the Geneva Convention, de facto primarily regulate international relations and do not represent the "transnational international cosmopolitan law" that would protect individuals, which they otherwise communicate on the declarative level.

 

II.

Mechanisms of contemporary migration policies, which refer to the human rights, legitimise deportations, produce "denizens", that is, enable non-citizenship of many migrants. They are in the position in which they have no right to have rights and where appealing to human rights only deepens their non-rights status, as legal mechanisms are being invented which prolong such non-rights status and serve as an instrument for exile. The limitation of the concept of human rights is reflected also in the fact that, for example, the number of refugees in every country is essentially small. In the case of refugees, human rights are virtually impossible: firstly, because it is almost impossible to gain the status of a refugee[2], and secondly, because many are prevented to even apply for the status (lack of information, rejection of applications on behalf of the police already at border crossings, etc., as examples from Slovenia have shown).

Recent migration policies define migrants on the basis of the fact that they are out of their country. The first assumption of their existence is their "denizenship" status or their non-citizenship. Personal circumstances and motivations become irrelevant. In assessing the individual circumstances for acknowledging the access to the status of a refugee, authorities decide among different normative systems: in assessing the so-called eligibility of the application the decision is based mainly on the political opposition in the country from which the person comes, and not their complex individual identities and affiliations (Bhabha 1999).

According to Arendt (1948/2003, 376), the misery of those without rights is not that they are robbed of their lives, freedom, aspirations for happiness or equality before the law, and freedom of opinion - these are namely the formulas that were invented for solving the problems within the community or the nation-states - but in the fact that they do not belong to any community and that they become "redundant". People without citizenship, the erased, which personify the danger of the mere nakedness of human existence, are deprived of a place in the world where they are not robbed of the right to freedom, but of the right to function, and not of the rights to think what they want but of the right to their opinion (Ibid., 377). Their distress does not arise from the fact that they are not equal before the law, but from the fact that for those, from whom any kind of legal status has been taken away, no law any longer applies. Or in the case of migrants, who are constantly on the margins of community, they can only exist within integration schemes that will keep them marginalised even after so-called successful integration (on the principle once a migrant, always a migrant or on the principle of the constant maintaining of statuses of the so-called indésirables of Europe).

The basic deprivation of human rights is seen as the withdrawal of a place in the world. As Arendt (1948/2003, 376) would say that something much more basic than freedom and justice, which are the rights of the citizens, is in danger, when belonging to the community you were born into is no longer given per se and not belonging is no longer a matter of choice. This is a situation where people are robbed of their human rights. Moreover, this is a situation of being evicted from the human race itself, a question of existence of the right to have a right, the right to belong to a certain community, where you are judged according to your acts and opinions. The right to have a right is defined beyond nationality and the country of birth; it can only be realised in a political community that defines us outside of the concepts of nationality, sovereignty, and ethnicity. Migrants do not have this right. They do not have a place to express their opinions, like citizens do. They are not in a position to negotiate their position, but in a position of "robbed humankind", the nakedness of their own existence. Their distress is not in the fact that they are not equal before the law, but that for them, laws (the right to work, social care, housing, etc.) do not apply or only apply to a limited extent. They exist in relation to conditioning, which keeps the migrants constantly on the verge of rights or determines them outside of the concept of rights.

 

III.

In migration it is shown that the right of the sovereign over-determines the right of an individual as a human being - the right to immigration is absent from international law and its implementation or non-implementation is left to the arbitrariness of the sovereign countries. The question to be asked is how to ensure migrations and the emergence of (cosmopolitan) rights of the individual as a human being in the absence of the prevailing power of the sovereign. We have established that universal declarations do not give a satisfactory answer to this question, as they do not solve the superiority of the sovereign or they put the realisation of rights exclusively into its hands. Already Kant established that the idea of a "joint possession of the world" does not manage the imperative, which would satisfactorily explain the cosmopolitan rights (Weltbürgerecht). The spherical dimension of the world, the idea that the world is common to all people, creates circumstances for cosmopolitan rights, creates situations (migration) when people realise such rights and (try to) live them, but it does not offer an imperative for their recognition and non-violation. Rights always remain "incomplete" and conditioned, as it is possible to deny them and to legally create people without rights (take, for example, the erasure of 18,305 people from the permanent residence records in Slovenia in the early 90s).

Today the post-Westphalian concept of sovereignty is preserved by regulation of migrations which, as a modern transnational phenomenon, represent a challenge for the doctrine of national sovereignty.  Recent migration practices, as well as practices of belonging or membership today have to be re-thought by reconstructing relations between the obligation to the principles of sovereignty and the right of national communities to self-determination on the one hand and the universal principle of human rights on the other. If, for a moment, we refer to the so-called realistic approach and leave ideas about "the end of the state" and the creation of "world citizenship" behind and assume the Kantian tradition of cosmopolitan international justice (or his concept of cosmopolitan right), then we have to give rights the priority over national interests. In fact, just the opposite is true: the Westphalian regime of sovereignty created migration as a private matter. In the context of the cosmopolitan theory of justice, reconstruction of the conflict between rights and national sovereignty means that rights have to be given the priority.  In the case of the realpolitik of migration, this means: 1) that the right to immigration needs to be established and ensured; 2) that mechanisms of permeability of borders have to follow (policies of enabling and not preventing migrations); 3) that conditions need to be established to prevent denationalisation of citizens, erasure, and loss of human rights; and 4) that the principle of everyone having the right to the right needs to be carried into effect, i.e., that a legal person or a human being is always a member of a political community (a being who associates) who cannot and should not be a non-person - "without rights", "naked", "foreign", "erased" - regardless of the circumstances.

Habermas (2001), for example, calls attention to this paradoxical situation of human rights when he claims that in general, legislation should be changed in such a way that citizens would not only be the carriers or subjects of rights, but at the same time their authors. Habermas's discursive theory of law and his reinterpretation of the system of rights demand the commitment to public deliberation, discussing the rights, their significance and application. Bobbio, in his book L'età dei diritti (1990), points out that today we should for the most part recognise that nation-state is not the only form of human association. The author does not reject human rights, but proposes their reformulation by referring to a short period when human rights were not bound to the nation state, but to the human as a collective and political being, which associates. Human rights represent the realisation of rights by action and union; they are about the rights that are formed and realised from the bottom and are not designated from the top. In the context of real politics, Bobbio (1990, 37) adds that the idea of human rights will truly begin to live only when international law has priority over national legislations. Only in constellations of such kind, when migrants are not treated as "exceptional phenomenon", which deviates from the norm (this argument has always been tempting as it leaves the system intact), the exercising of rights even against the state (and not only within it) would be possible to ensure. At the same time alternatives are shown in some new conceptualisations of political activity or practices of "dispersed political power". This is not merely referred to the principle of having the rights, but presupposes practising "cognitive autonomy" (Zolo 2007, 11), or it also refers to the form of "cooperative anarchy" (anarchia cooperativa) (Ibid.), that is, to the alternative form of "active citizenship".

 

 

 

 

References

Arendt, Hannah. 1948/2003. Izvori totalitarizma. Ljubljana: Študentska založba.

Benhabib, Seyla. 2004. The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press.

Bhabha, Jacqueline. 1999. "Embodied Rights: Gender Persecution, State Sovereignty and Refugees" in Women, Citizenship and Difference, N. Yuval-Davis and P. Werbner (eds.), 178-191. London, New York: Zed Books.

Bobbio, Norberto. 1990. L'età dei diritti. Torino: Einaudi.

Habermas, Jürgen. 2001. The Postnational Constellation: Political Essays. Cambridge, MA: The MIT Press.

Zolo, Danilo. 2007. Da cittadini a sudditi: La cittadinanza politica vanificata. Milano: Punto Rosso.

 

 

 

 

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[1] In accordance with the concept of the third safe country there is an internationally accepted and recognized rule that no state is obliged to accept refugees who could continue to be safe in the country they were in before coming to its territory.

[2] In Slovenia the status of a refugee was granted to a total of only 160 individuals on the basis of more than ten thousands of applications in the last fifteen years.     

 

 

Mojca Pajnik, PhD in Communication/Political Sciences, Faculty of Social Sciences, University of Ljubljana, works as a scientific counsellor at the Peace Institute in Ljubljana. She is assistant professor at the University of Ljubljana, and a lecturer at the International School for Social and Business Studies, Celje. Fields of her research include migration, citizenship and gender.