The human rights movement can be seen as the ongoing but failing struggle to close the gap between the abstract man of the Declarations and the empirical human being. Has it succeeded? Yes and no.
2015 and 2016 have been marked by the heart-breaking images of a moving humanity of refugees and immigrants who leave the battlefronts of Syria, Iraq, Afghanistan and Libya to come to Europe, their imaginary Arcadia. More than one million people have braved the rough waters of the Aegean and Libyan seas with the bulk landing on the Greek islands of Lesbos, Chios, Kos, Agathonissi, Farmakonissi and Lemnos.
On the way to the islands, thousands have lost their lives. Photographs of drowned dead bodies lying on the beaches of Greece and Turkey have been published daily. The image of dead three-year-old Aylan Kurdi on a Turkish beach in early September went around the world and became the image of the refugee crisis.
Britain’s chief rabbi, Ephraim Mirvis interviewed on radio stated that “for far too long, we have related to these suffering individuals as if they are people who are living on Mars. Thanks to that image, that desperately sad and tragic image, it’s moved out hearts … It’s an image of that boy that has brought us to our senses and we must respond adequately.”
Yet the first known refugee casualty of 2016 was an unnamed two-year-old boy who drowned on January 1 when the crowded dinghy he was travelling in broke in the rocks off Greece’s Agathonissi island. “Nothing can prepare you for the horrific reality of what is going on. Today we came face to face with one of the youngest victims of this ongoing refugee crisis. It is a tragic reminder of the thousands of people who have died trying to reach safety in miserable conditions,” said Christopher Catrambone a migrant support NGO officer.
Between the first and the second dead infant thousands braved the sea and hundreds drowned. The island of Lesbos has run out of burial space. Many graves are unmarked as the name and nationality of the buried are unknown. Refugees are the unmourned and ungrievable victims of the latest humanitarian catastrophe.
As Antigone knew, the dead must be honoured at all costs. Those who cannot, who do not deserve to be mourned, form the most extreme case of bare life, life outside the protection of law and state, as Judith Butler reminded us.
The image of the little dead body floating on the waves and then lying on the beach was powerful. It was published and copied again and again around the world. Yet Aylan’s death image did not have the same effect on European politicians as on the Rabbi. Greece is a transit place on the way to Northern Europe for people fleeing the wars of the Middle East.
Over a million refugees entered Europe in 2015 with some 820,000 landing on Greek islands and some 250,000 in early 2016. Germany temporarily opened its borders receiving a large number of asylum seekers. But when the political climate started turning the borders were closed again. Hungary built a fence on the border and declared that it cannot accept the moral blackmail of Germany which initially welcomed immigrants. Croatia and the Former Yugoslav Republic of Macedonia built fences too.
Poland declared that it would only accept Christian refugees. Finally and after Austria stopped receiving refugees the so-called Western Balkans route was sealed with soldiers patrolling the border between Greece and FYROM. Unilaterally and against international and European law duties, the European Union declared itself closed to outsiders.
The European Union has become physically a ‘Fortress Europe’. It has externalised migration control and with the recent agreement with Turkey it has delegated the control and security of its borders to a third country which, according to all calculation, is not safe. .
An EU Summit meeting in September 2015 agreed that around 160,000 refugees would be relocated from Greece and Italy to the 28 EU states in numbers proportionate to their size and population. At the time of writing fewer than 1000 have been relocated. Immediately after the agreement, a number of states including Hungary and Poland have and rejected participation and refused to take any refugees. Denmark, one of the most wealthy nations of the European Union, passed a law authorising the confiscation of the pitiful valuables of refugees to cover the cost of offering basic services to them.
In September 2015, against wishes, expectations and predictions, I was elected a Syriza MP for the port of Pireas. As the President of the Defence and Foreign Relations committee of the Hellenic Parliament, I have to attend various inter-parliamentary conferences and meetings.
In November, in a meeting at the European Parliament to discuss migration flows in the Western Balkans, I explained that the Greek position was to welcome the migrants, register them, start the asylum determination process for those who do not wish to leave immediately and let the others go while doing everything possible to make their lives bearable while in the country. The help of ordinary citizens and the solidarity of Greek and foreign NGOs has made this huge task for a small and economically devastated country possible.
A Northern European MP retorted by stating that the Greek port police should “push back” the ramshackle refugee dinghies. I explained that “pushing back” could only work if these vessels are rammed or sank, something that the Greeks would not do. My interlocutor response was that the patrol boats should allow refugees to reach the islands but should turn back “illegal” migrants.
Again, I explained that the Greek government is not prepared to tolerate more deaths in the Aegean. Moreover the separation of asylum-seekers from economic migrants in rough waters is impossible even if some inhumane administration were to adopt the plan.
Jami and Barzo, two failed asylum seekers living in the London shadows, give a succinct answer to the Northern European politician. In a video accompanying coverage of a report by the refugee charity Parfras, which details the life of an underground humanity without shelter, food or the right to work and survives in our cities on less that one-dollar a day, Jami who sleeps in parks, quietly contrasts himself to his friends who have “papers” and implicitly to the rest of us. “We both have two hands, two eyes, two legs. They are human like me”.
Barzo ends his heart-rending description of destitution, homelessness and despair quietly addressing people like us who, from our comfortable houses, keep proclaiming “human rights, human rights. But where are the human rights for the asylum seekers?”
In haunting and halting sentences echoing suffering humanity from Shylock to Primo Levi, these natural philosophers state an indisputably realistic truth: we may all be human but humanity has always excluded, despised and degraded some of its parts.
Humanity is not one: it has always been split between full and lesser humans. The refugee crisis version distinguishes between refugees and migrants, placing the former in a precarious position of rhetorical protection while abandoning the “illegals”, as if there is any human being who is “illegal” because of who they are.
How can we understand this paradox that not all humans have humanity in a human rights world? The inflation of rights-talk has obscured the terms. To understand what Jami and Barzo tell us and Aylan proves we need to start again.
“Human rights” is a term combining law and morality. Legal rights have been the building block of western law since early modernity. As human rights refer to a type of morality and to the treatment individuals expect from public and private powers. Human rights are a hybrid category, which introduces a number of paradoxes at the heart of society by bringing together law and morality.
Let me start with legal rights, the part that really counts in power’s treatment of people. Private property and contractual rights were introduced in early modernity. They were both the result of the emergence of market economy and contributed to its victory.
Culturally, rights were precipitated by what Alasdair McIntyre has called a “moral catastrophe”: the destruction of premodern communities of virtue and duty. Because the capitalist society of individualism and free will lacks a universal moral code, restraints on private egotism must be external. Crime, tort and legal rights achieve precisely that. The law empowers individuals to enforce their rights but also limits their exercise so that in theory we can all have an equal amount of rights.
When disputes arise, it is the business of lawyers and judges to resolve them. These rule experts have propagated a commonly held view that laws and rights are like facts: they have ‘objective’ meaning, which can be discovered by the professionals. Legal rights turn social and political conflict into a technical problem about the meaning of rules.
Legal rules and rights however do not come with their meaning on their sleeve. Human rights provisions are commonly general and abstract. They must be interpreted to be applied. Most rights disputes involve at least two contradictory but plausible legal and cultural meanings. This is where the available discursive frameworks analysed in this volume become all important. Take the “right to life”, which opens most bills of rights and human rights treaties.
Its statement does not answer questions about abortion, the death penalty, and euthanasia or indeed about whether this right protects the necessary prerequisites for survival such as food, shelter, health care or the safe passage to a place of asylum. In most cases, a human rights claim is the beginning rather than the end of a dispute about the meaning of the right or its relative standing vis-à-vis conflicting rights.
At this point, moral, political or ideological considerations unavoidably enter legal argumentation. Deciding conflicts between liberty and security, which have become so important after the Paris terrorist attacks, involves assumptions about the way a democratic society works.
These depend in part on decision-makers’ ideological, political or moral views. Removing them from politicians and giving them to lawyers (with their usual homogeneous outlook) does not change this basic fact. Rights and law are supposed to use reason and precedent to make the exercise of power neutral and objective. But the repressed “subjectivism” always returns: rights adjudication is ambiguous, open, and potentially radical. We should not forget that law’s main job is to provide order not to support morality.
Secondly, whether recognised or not by law “human rights” are moral claims. A Chinese dissident who asserts the right to free political activity or an asylum-seeker who claims the right to secure passage to a place of safety are both right and wrong. The dissident’s “right” does not refer to an existing legal entitlement but to a claim about what morality (or ideology, or international law or some other higher source) demands.
In this sense, the morality of human rights is always in potential conflict with their legal status. Human rights confound the real and the ideal. Take Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal of right”. But as Jeremy Bentham noted first, newly born infants depend for survival on their carers, while the statement that people are born equal flies in the face of huge disparities in the world.
Biological and social nature distribute their wares unequally, an unavoidable result of the accidents of birth and history. Heredity, the standing and economic (dis)advantage of family and community largely determine our lives. Equality on the other hand is unnatural and must be fought for.
Similarly, the asylum-seeker’s claim to the right to life, as argued above, does not create an indefeasible expectation of survival. Depending on the political, legal or cultural discursive framework adopted, ramming a dinghy may be interpreted as a criminal act and a violation of the refugees’ rights or a necessary protection of national interests.
Human rights statements are therefore prescriptions: people are not free and equal but they ought to become so; people do not have a right to life, they ought to be granted the necessary means for their survival. Their success depends on political will and the social conditions within which the equality and life maxims are to be fought for. Equality is a call for action not a description of a state of affairs. Moral or legal philosophy no longer deserves the adjective ‘moral’ when they forget this simple fact.
Human rights are a subcategory of legal rights protecting important goods and activities. The standard claim is they are given to people on account of their humanity rather than membership of narrower categories such as nation, community or class. And yet this assertion is disproved by the history of natural and human rights.
The French Declaration of the Rights of Man and Citizen, the political and legal foundation and manifesto of modernity, opens with the statement about free and equal rights which the Universal Declaration repeated replacing “men” with human beings. The Declaration proceeds to bestow these rights to French citizens only.
From that point on statehood, sovereignty and territory follow nationhood and its pathologies, nationalism, ethnic wars and cleansing, genocide. The gap between universal “man” and national citizen is inhabited by foreigners – they do not have rights because they are not citizens and as a result they are not fully human.
The “man” of the “rights of man” has no concrete characteristics, except for free will, reason and soul. These universal elements secularised the Christian belief in the sacredness of life and endowed humanity with dignity and respect. But this “man” is an abstraction without body, colour, gender or history, as Hegel, Burke and Marx agreed.
Yet the empirical man who actually enjoyed legal rights was literally a man — a well-off, white, Christian, urban male. He condenses the abstract dignity of humanity and the privileges of the powerful.
Ever since, full ‘humanity’ is constructed against a background of conditions of inhumanity (citizenship, class, gender, race, religion, sexuality). If rights are universal, refugees, sans papiers immigrants or the Guantanamo Bay detainees who have no country to protect them should have humanity’s entitlements.
But they have none – they are just bare, unprotected life. Human rights do not belong to humans, they construct a graded “humanity”. Every historical age has used its (philosophical or empirical) definition of humanity to separate between rulers, ruled and excluded.
Those who don’t speak our language, share our religion, belong to the wrong class, gender, colour or sexuality have always been left outside locally defined “humanity”. These categories of exclusion are still active. They have been joined by the “bottom billion”, the “human waste”, the rejects of global neoliberal capitalism.
The human rights paradox
The human rights movement can be seen as the ongoing but failing struggle to close the gap between the abstract man of the Declarations and the empirical human being. Has it succeeded? Yes and no. The concept of a common “humanity” introduced the vocation of universal dignity.
Jami, Barzo and Aylan teach us, however, that there is nothing sacred about any definition of humanity and nothing eternal about its scope. Refugees who have no state, nation or law to protect them should be the prime beneficiaries of human rights, recipients of the consolations of humanity.
Despite the claims of liberal philosophers however bare humanity offers no protections. Human rights, we could conclude, do not belong to humans. They help construct who and how one becomes human. Jami, Barzo and Aylan have no rights at all. In their case, the paradoxical relationship between law and morality has been resolved through the elimination of the moral command. While they bleed and hurt like the rest of us, they are not fully human.
The ideological power of human rights lies precisely in their rhetorical ambiguity, the oscillation between real and ideal, between humanity and national citizenship, the only provider of legal rights. When human rights are part of the law, as with the British Human Rights Act which the Conservative government has pledged to repeal, the law includes a principle of self-transcendence, which pushes against the law’s settled state. A legal system that includes human rights is paradoxically not equal to itself, since human rights call the whole of law to account everywhere not just in totalitarian states.
In this sense, human rights become the latest expression of a human urge to resist domination and oppression and to dissent from the intolerance of public opinion. This was the case in the great revolutions of the eighteenth century, in the post-WWII “never again” declarations, in popular uprisings against fascist and communist rule.
They are part of a long and honourable tradition, which started in the West with Antigone’s defiance of unjust law and surfaces in the struggles of the despised, enslaved or exploited. Those who defend Jami, Barzo and the thousands who arrive daily in the Greek islands belong to this tradition and redeem the value of human rights.
Those who use human rights rhetoric to defend the “human” rights of powerful companies in the developing world contribute to the banalisation and eventual atrophy of rights. This atrophy paradoxically follows the triumph of rights. Human rights have mutated, expanded and turned into a vernacular touching every aspect of social life.
Rights have become ubiquitous at the cost of their specificity and significance. They are seen as key concept in morals, politics and subjectivity. Claiming rights is the main form of morality. Responsibility, virtue and duty on the other hand have been confined to backwardness and fanaticism. Similarly, rights recognition is the main tool and target of politics.
Group claims and ideological positions, sectional interests and global campaigns are routinely expressed in the language of rights for individuals. But when rights become a ‘trump card’ that defeats state policies and collective priorities, allegedly to support the liberty of the individual, society starts breaking up into a collection of atoms indifferent to the common good. This way politics is depoliticised. Both liberty and security suffer.
In postmodern societies, rights are the main tools of identity politics. “I want X” or “X should be given to me” has become synonymous with “I have a right to X”. This linguistic inflation weakens the association of rights with significant human goods. A government minister recently argued that we have a human right to properly functioning kitchen appliances.
The right to choose our kids’ school or our mobile phone is as important as the right to be free of torture or to have food on the table. But this has nothing to do with the Enlightenment tradition of emancipation and self-development or with the radical tradition of dissent both represented in human rights. When every desire can be turned into a legal right nothing retains the dignity of right.
There is more. Rights talk has become an easy and simple way of describing complex historical, social and political situations, a type of “cognitive mapping”: particularly useful for media coverage. Take a workers’ strike. When presented as a conflict between the right to strike and the right to work (as is often the case), a complicated set of relations, histories, traditions and communities is reduced to a simple calculus of right versus right one of which must be wrong. This translation hinders both understanding and resolving the conflict. As the scope of rights increases their inherent absolutism makes the antagonists intransigent.
Finally, human rights have become the last universal ideology globally. It unites the North and the South, globalising imperialists and anti-globalisation protesters, first world liberals and third world revolutionaries. Human rights are used as a symbol or synonym for liberalism, capitalism or individualism by some and for development, social justice or peace by others.
In the South, rights are seen as primarily collective rather than individual, social and economic rather than civil, associated with social justice rather than liberty. Does the victory, universality and ubiquity of rights indicate that they transcend conflicts of interests and the clash of ideas? Have rights become a common horizon uniting Cardiff and Kabul, London and Lahore?
It is a comforting idea, daily denied in news bulletins. If there is something perpetual about our world, it is the increasing wealth gap between the metropolitan lands and the rest, the yawning chasm in income and chances between the rich and the poor, the ever new and strictly policed walls which divide the comfortable middle classes from the “underclass” of immigrants, refugees and undesirables, those pockets of “third world” in the midst of the first. If anything, our world looks increasingly more hostile and dangerous and the administration of justified or imagined fears has become a major and common tool of governments.
Human rights introduce morality into law and offer limited legal enforcement to moral claims. But as morality is not one and the law is not a simple exercise in reasoning, moral conflict enters the legal archive and legal strictures regiment and control moral responsibility. Jami, Barzo and Aylan remind us what the purpose of human rights is. Their sad soliloquies attest to the fact that when seen as alien Martians they are turned into sub-human without humanity or rights.
Costas Douzinas is a Member of the Hellenic Parliament, a Professor of Law and the Director of the Birkbeck Institute for the Humanities, University of London.