In 2015, instability in the Middle East set in motion the largest flow of refugees to European soil since the Second World War. As a result, European border protection practices, much criticized for many years, came to the awareness of a broad European public to a degree that had long been desirable, but for almost as long had seemed unlikely ever to occur. While the issue of capsizing refugee boats in the Mediterranean, even before, was certainly not a secret kept by a few sworn initiates, it always remained a rather marginal aspect in European politics. It therefore seemed to be more the responsibility of those states whose geographical location on the edge of the Union territory in any case made it impossible to ignore the problem.
It was only the extent of refugee movements in 2015 that showed, in a globally visible way, that the provisions of the Dublin Convention alone could scarcely be considered sufficient for dealing with the imminent refugee crisis. The need for concepts is felt not only in practical politics. In philosophy, too, discussions particularly about the ethical aspects of the refugee crisis are prevalent.
In this context, I should like to recall the ideas of Hannah Arendt as she – like no other – closely links personal experience with theoretical reflection in her writings on the subject of flight and refuge. Forced to flee twice, she was stateless for no less than 14 years – something that influenced her and her work in many ways. In her theoretical reflection on political questions, she linked the phenomenon of mass refugee movements to the problem of human rights. Her conclusion, which many found surprising, was a radical criticism of the classical concept of human dignity. Admittedly, the question of the extent arises, to which these considerations from the late 1940s can still be of value to us in the contemporary situation.
The nakedness of mere humanity
Attempting to discuss Arendt’s criticism of human rights in the current situation appears at first, in several respects, to be anachronistic. After all, she formulated her criticism in light of a situation in world history which, with good justification, can be considered to have been overcome. Human rights in their generality are recognized today, even by those whom we accuse of violating them, in a manner which fundamentally differs from the situation after the Second World War. In the late 1940s and early 1950s, Arendt could have barely anticipated that international institutions would be set up for their monitoring and enforcement. Even the Geneva Refugee Convention is certainly an improvement on the situation that Arendt at the time justifiably criticized as European refugees’ rightlessness.
Nevertheless, there is a fundamental problem in assuming rights that are granted to all humans qua being human, which the mass exodus situation makes particularly visible, and which we would do well to remember in the current situation, too.
Arendt stated that human rights face a dilemma, as they are situated in an indistinct grey area between moral claims and legally enforceable rights.
To understand human rights as moral claims is traditionally to follow an argument based on the law of nature or reason. It assumes their validity at the core to be based on a voluntary commitment by rational beings: by virtue of reason, which is bestowed by nature, all rational beings are capable of understanding what human rights demand. From this, a universal validity of human rights (i.e. validity for all humans) can be derived.
Such a notion – following Arendt – proves to be too abstract to be considered a solution to the problem, when faced with the very concrete situation of thousands of refugees. In this understanding, it is true that human rights require nothing more than a reference to simply being human, in order to claim universal validity – i.e. validity for all humans. Within the mass flight situation, however, the problem arose for refugees that any addressee of legal claims had been lost along with their home countries. The home countries were no longer able to threaten their lives – but at the same time there was no approachable institution which, for example, could have guaranteed legal entitlements deriving from their own citizenship.
Stripped in this way of any legal options, the refugees’ status as human beings did not yield the possibility of claiming any additional rights – specifically human rights – beyond the positive law of their home countries. Instead, they found themselves in a situation in which, effectively divested of a citizen’s opportunities to call upon the legal apparatus of their home countries, they were reduced to simply being human, and forced to acknowledge that “the abstract nakedness of being nothing but human was their greatest danger.”1 Arendt agrees in her criticism with Edmund Burke: where the concept of human rights cannot invoke nationally guaranteed rights, it remains merely abstract and collapses in on itself. A right that is claimed only on the basis of an abstract justification, without it also being guaranteed by a state institution, remains indeed merely a claim that one makes, not a right that one has, since there is no one against whom one can assert the legal claim.
Where, by contrast, the possibility of such an assertion exists, evidently it exists only for members of a community bound by law, on the basis of positive, state-guaranteed rights and laws.
It therefore seems to be impossible for something like human rights to exist: either they are an empty moral claim that is not guaranteed, or they are guaranteed by the state – and so they are a necessarily positive state law of national states, and therefore not primarily human rights but rather civil rights. Without membership of a state community, pre-political human rights are thus not only de facto a truly toothless tiger. What results is really an aporetic situation where, in the moment that they are asserted, they lose their status as pre-political rights – whereas, conversely, they cannot be asserted as pure pre-political rights only.
Arendt’s conclusion was that there should be something like an inclusion right, which guarantees a person’s membership of a state community – since the status of mere humanity, to which refugees had been reduced because of their statelessness, was tantamount to a status of rightlessness. In a formula that became famous, she expressed this right to inclusion in a political community as the “right to have rights”:
“We became aware of the existence of a right to have rights [...] 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.”2
Arendt thus saw a constitutive relationship between the refugee problem and the human rights issue, as it apparently took the refugee movements of the Second World War to make this fundamental problem of human rights visible.
Yet the situation with which the refugees whom Arendt made a subject of discussion were confronted was tragic not only because, with their home country, they had lost their membership of a political community, and were therefore no longer part of a political body. As Arendt explained to her students during a seminar at Berkeley in 1955, they also had to come to terms with the fact that, as stateless persons, they had been declared “undesirable” (e.g. by the Dutch government of the time).3
Being undesirable still very accurately describes the attitude today in many European countries towards current refugee movements. In European countries and among members of their governments, there is wide-ranging variation in the readiness to accept those who, as a result of their situation as refugees, have landed in a position that – in legal respects also – is anything other than strong, even if today it is no longer rightless. At present, political rhetoric in many places would appear to go substantially further than the word “undesirable” which Arendt took issue with. In parts of the political spectrum, there is a trend to class all refugees – completely indiscriminately – as suspected terrorists, as a way of inciting fear. From there it is often just a short step to wanting to deprive the potential barbaric terrorists of fundamental rights – such as the right of asylum.
Thus, however much progress international legislative processes have made since the situation described by Arendt, it needs to be said that there are no political actors to date who are able to force individual states to accept refugees in their sovereign territories, and who would thereby make themselves responsible, as a guarantor and point of contact, for their human rights.4 What we are witnessing instead is a de facto situation in which many of those who have political responsibility do everything in their power to resist accepting any responsibility of this kind. In some cases, they quite openly express support for solutions which look in many respects horrifyingly similar to the internment camps that Arendt knew from her own experience.
Yet in the post-war period, Arendt complained about the humanitarian inappropriateness of the situation that had been created. And it was not only with regard to the human rights aspect that she saw it as being problematic. Thus, she wrote, “these rightless people are indeed thrown back into a peculiar state of nature. Certainly they are not barbarians; some of them, indeed, belong to the most educated strata of their respective countries; nevertheless, in a world that has almost liquidated savagery, they appear as the first signs of a possible regression from civilization.”5
The way in which civilizations deal with refugees also says something about those civilizations and the degree of civilization that they have attained. Hence, according to Arendt, for countries facing waves of refugees, it is not only a question of considering the economic dimension of the refugee problem. Rather, their own status as a civil society is at stake – especially where this society tends to link its own identity to humanitarian, or even “Western” values:
“The danger is that a global, universally interrelated civilization may produce barbarians from its own midst by forcing millions of people into conditions which [...] are the conditions of savages.”6
Thus, for Arendt, treating people who have lost their home country as uncivilized barbarians can in itself be taken as indicating a lack of civilization. At the least, this should warn us to curb our political rhetoric, even in difficult situations.
Europe as a bearer of hope
But beyond that, what message could there be, in a text that is more than sixty years old, for us today in such a complex, rapidly changing, and contentious field as human rights and refugee policy? Two further aspects may be worth considering here:
Firstly, Arendt’s criticism of the traditional concept of human rights surely should not be interpreted as a rejection of the content of the moral claim associated with it. Particularly with the accumulated experience of the last sixty years, there can hardly be any serious doubt that, in their content, the declared human rights can and should form an important point of reference for international politics. But it is just as obvious that the point that was so crucial to Arendt has lost none of its relevance: where human rights are nothing more than a mere moral appeal, from a legal standpoint they actually clothe people in extreme humanitarian situations – such as mass refugee movements – little better than the emperor’s new clothes. Ultimately, they have a greater impact on political discourse than on consolidating the legal situation for refugees. Such an understanding of human rights would be, in the literal sense of the word, utopian – i.e. incapable of existing anywhere in the real world. There is no specific state territory on whose statehood the guarantee of human rights could be based.
Secondly, for the specific situation of people who have found themselves part of mass refugee flows, it is probably true that a specific political community has to assume responsibility for guaranteeing their declared human rights, if these are to be more than just a pledge.
Here, it is quite interesting to recall how Arendt imagined a guarantor of this kind: “It doesn’t seem utopian to me to hope for the possibility of a union of nations with a European parliament. [...] That is, European politics while at the same time preserving all nationalities,”7 Arendt wrote in 1940 (!) to her friend Erich Cohn-Bendit. The letter reveals Arendt’s political ideas far more directly than many of her theoretical writings. Above all, it highlights a problem that is familiar to us from current attempts at dealing with the refugee issue: in today’s political debate, we once again constantly see competition between the European perspective and the call for national solutions. One might ask whether Arendt is surprisingly topical here, or, conversely, whether our reasoning has taken us back to Arendt’s times. In any case, it is a characteristic idea, even of Arendt’s analysis of the 1950s, that the problem of refugees cannot be solved in a frame of thought which remains in categories of national sovereignty such as repatriation or expulsion.8 This aspect is always implied in Arendt’s right of inclusion: “But as a human’s right to citizenship, it transcends the rights of the citizen and is therefore the only right that can be guaranteed by a community of nations, and only by it.”9
In a situation where the European Union’s high degree of supranational organization is something that many take for granted, and some even feel to be a burden, it seems surprising that a Jew who emigrated to America in the middle of the Second World War expressed such confidence in European solutions – and yet in the framework of European unification, far more has been achieved today than Arendt could have hoped for. Seen in this way, Arendt’s warning that the right to rights must be guaranteed by a specific community of states – with regard to the current status of European integration – may prove to be the litmus test against which the achievements have to be measured.
1 Arendt, Hannah (1973): The Origins of Totalitarianism. Harcourt: Houghton Mifflin, p. 300.
2 Arendt, Hannah (1973): The Origins of Totalitarianism. Harcourt: Houghton Mifflin, pp. 296 f.
3 Arendt, Hannah (1955): Statelessness. Unpublished seminar script, Berkeley. Accessible on: “The Hannah Arendt Papers at the Library of Congress,” Washington DC, tinyurl.com/yb6czfgy (accessed August 25, 2017).
4 Cf. Gosepath, Stefan (2007): “Hannah Arendts Kritik der Menschenrechte und ihr ‚Recht, Rechte zu haben‘.” In: DZPhil, Sonderband 16, Berlin, pp. 279–288, pp. 282 f.
5 Arendt, Hannah (1973): The Origins of Totalitarianism. Harcourt: Houghton Mifflin, p. 300.
6 Arendt, Hannah (1973): The Origins of Totalitarianism. Harcourt: Houghton Mifflin, p. 302.
7 Cf. Arendt, Hannah (2000): “Zur Minderheitenfrage.” Letter to Erich Cohn-Bendit, Paris, January 1940. In: Arendt, Hannah: Vor Antisemitismus ist man nur noch auf dem Monde sicher. Beiträge für die deutsch-jüdische Migrantenzeitung Aufbau 1941–45. Edited by Marie Luise Knott. Munich, pp. 225–234, pp. 231 f. (translated from the German and adapted).
8 Cf. Heuer, Wolfgang (2000): “Europa und seine Flüchtlinge. Hannah Arendt über die notwendige Politisierung von Minderheiten.” In: DZPhil, Sonderband 16, Berlin, pp. 331–341, pp. 333 f.
9 Cf. Arendt, Hannah (1981): “Es gibt nur ein einziges Menschenrecht.” In: Höffe, Otfried et al. (eds.): Praktische Philosophie/Ethik 2. Reader zum Funk-Kolleg. Frankfurt a.M., p. 167 (translated from the German).