IT WAS DURING A VISIT to hell that Samantha Power heard the voice of Hannah Arendt. It was the summer of 2004, and Power was a Harvard University professor and author of a Pulitzer Prize–winning book about the United States’ failure to respond to genocides during the twentieth century. Now Power had come to northern Chad, near the African nation’s border with Sudan, to document the first mass slaughter of the new millennium. According to conservative estimates, fifty thousand people had by then been killed in Darfur, Sudan’s western region, a figure that would rise after Power’s visit. More than two million people had also been ethnically cleansed from their homes, creating a mass exodus of Darfuris into makeshift camps in Chad. As Power went about interviewing refugees living in mud huts, listening to why they had come to such a desolate and forsaken place, she began to hear, she says, “Arendt’s voice inside my head, either whispering or bellowing loudly.”
Power’s study of genocide begins with the Armenians, whom Turkish authorities targeted for mass murder during World War I. A key element of the Armenian genocide was the forced deportation of entire villages, conducted by Turkish soldiers on horseback. In Darfur, it was as if the killers were trying to emulate this legacy. The killings were conducted not by uniformed Sudanese soldiers but by a government-supported militia known as the Janjaweed, an Arabic word that loosely means “evil horseman.” Like the Turks before them, the perpetrators in Sudan singled out their female victims for systematic sexual abuse, raping thousands, even hundreds of thousands, of women. But the Janjaweed did not stop there. They took the trouble to brand their victims. In Sudan’s traditional Muslim society, which emphasizes a woman’s sexual purity, branding the survivors stigmatized them as sexually defiled, and so ensured their status as permanent outcasts.
As one Darfuri woman after another pointed to the scar on her leg, explaining how she came to have it and what it meant, Power reeled at what she was hearing. This can’t be, she thought. Persecution on this scale can’t exist. It was a perfectly natural reaction. But Power knew from reading Arendt that this normal response to atrocity was actually part of the problem. Such events so defy comprehension that they can cause outside observers to hesitate to respond, until it is too late.
“That’s one major lesson I take with me from Arendt’s writing,” Power says. “When [traumatized] refugees tell you stories about what they’ve gone through, they may get a detail wrong here and there, but when they tell you these horrific tales, do not think just because it sounds too awful to be true that it is. The ‘evildoers,’ or aggressors, will forever come up with new ways to surprise, new ways to exceed the powers of our imaginations.”
Power’s experience in Chad testifies to the enduring relevance of Arendt’s work. Many writers who grapple with refugee and human rights issues still hear Hannah Arendt’s voice “whispering or bellowing loudly” inside their heads, and seek to respond to that at times disturbing voice. Thinkers who fall into this category are hard to pigeonhole for several reasons, not least because they occupy more than one point on the Left–Right political spectrum. Nevertheless, it is possible to divide contemporary writers who respond to Arendt’s critique of human rights into two broad groups.
The first are those, like Power, whom we might think of as pragmatists. Pragmatists tend to eschew grand investigations into the nature of sovereignty or rights, and focus instead on concrete steps we can take to improve the plight of refugees, whose situation Arendt took to illustrate the impossibility of human rights. In contrast to this group are writers who respond to Arendt at a more abstract level, whom we can call the philosophers. Philosophers point out that Arendt took the plight of refugees to show the impossibility of reconciling human rights with national sovereignty, and they go on to rethink either rights or sovereignty in order to overcome the dilemma. Their responses to Arendt therefore tend to be more high-flown and conceptual than those put forward by pragmatists.
If we want to find out whether enforceable rights can be rooted in humanity rather than citizenship, we will gain much by noting what pragmatists and philosophers have said in reply to Arendt. A solution may have been found to the problem Arendt left us with regarding human rights, and what we may need to do is act on a proposal already in circulation. Alternatively, no solution may have in fact been found, and seeing why this is the case will help us recognize what a real solution might look like. Either way, familiarity with the ongoing debate around Arendt’s critique of human rights will be of benefit in making those rights more meaningful.
As we are about to see, however, there is a third option in play in the debate around Arendt. That is to give up on human rights as a desirable or even coherent concept. And so our examination starts with a philosopher who recommends that we abandon one of the central moral notions of our time and go “beyond human rights.”
Giorgio Agamben is an Italian academic who splits his time between universities in Paris and Venice. Born in 1942, Agamben spent the early part of his career writing on issues related to language and literature before gradually turning to politics. In recent years he has gained a wide audience in North America, where he has often taught, but interest in his work is even stronger in Europe, where his public lectures fill theatres and articles by or about him appear frequently in the press. “With his collarless shirts and dark suits, he comes across like something of a cleric,” a German newspaper writer once remarked of Agamben, and the image of him as a kind of prophet is a fitting one. Like all true prophets, Agamben has an otherworldly vision that seeks to transcend the fallen world around him. Nowhere is this more evident than in his scathing view of the modern state, which he considers fundamentally incapable of respecting the moral worth of human beings.
To appreciate Agamben’s skeptical view of government, we should recall events in his native Italy in the 1960s and ’70s, when the country was racked by extremist violence carried out by both the Right and the Left. The most well-known incident occurred in Rome in 1978, where the car of former Italian prime minister Aldo Moro was stopped by a dozen men wearing Alitalia airline uniforms. They turned out to be members of the Red Brigades, an ultra-leftist cell. After shooting five of Moro’s bodyguards, the Brigades abducted Moro himself and kept him in captivity for two months. Eventually Moro was assassinated and his body found in an abandoned car.
In response to this and similar events, Italian politicians became consumed with combating terrorism. While few observers objected to such a goal, the measures the authorities employed were extreme. They included mass arrests, detention without trial and, more than once, firing into crowds of unarmed demonstrators. As one Italian politician later put it, “The battle [against terrorism] completely absorbed us, so we did not see all the rest with the necessary clarity.” Historians have long debated why the Italian government acted with such ferocity during Italy’s so-called Years of Lead. One factor that is often cited is the popularity of the Italian Communist Party, which was on the verge of joining a government coalition and so went to great lengths to establish its anti-extremist credentials. As historian Paul Ginsborg puts it, the influential party, “instead of championing civil-rights issues, rapidly became a most zealous defender of traditional law and order measures.”
Against this backdrop, it is not hard to see how an Italian of Agamben’s generation could wind up with a pessimistic view of government. However, the main reason to recall Italy’s years of upheaval is because they provide an example of a Western state committing major human rights infractions. This is a subject Agamben’s writings frequently seek to explain. How is it that representatives of liberal-democratic states come to detain thousands of people without trial, or open fire on crowds of civilians? In Agamben’s view, Ginsborg and other historians who explain such events by focusing on the decisions of particular actors, whether they be political parties, terrorist groups or individual politicians, are making a fundamental mistake. For the real cause of state crimes is the nature of sovereignty itself.
Agamben often quotes a remark by a previous philosopher that summarizes his own view of government: the sovereign is he who decides on the state of exception. In other words, a key function of political power is not only deciding what the rules will be but to whom they will apply. Agamben’s writings illustrate this idea with many learned historical examples, stretching as far back as ancient Rome, of political authorities suspending the law’s normal operation. A modern case Agamben often refers to is that of 1930s Germany. When the Nazis came to power they declared a state of emergency that suspended the German constitution. “The decree was never repealed,” Agamben notes, “so that from a [legal] standpoint, the entire Third Reich can be considered a state of exception that lasted twelve years.” Other nations may not commit atrocities on the scale of the Nazis, but they have also exercised their capacity to declare states of exception in disturbing ways. Between World War I and the Depression, Agamben points out, France, Belgium and other Western states engaged in acts of mass “denationalization,” stripping thousands of people of their citizenship on the grounds that they were of “enemy” origins or “unworthy of Italian citizenship,” as Mussolini’s regime put it.
Agamben uses a Latin phrase to identify people who are placed beyond the law’s reach this way: homo sacer. This idiosyncratic term of art (which is pronounced “homo soccer” and means “sacred man” or “cursed man”) refers to an obscure figure of Roman law, one whose significance has long been debated. According to sources Agamben draws on, homo sacer was a legal category during Rome’s early period, when secular and sacred law overlapped, and certain crimes were punishable by sacrificing the perpetrator to the relevant god. (Someone who struck his father, for example, would be offered up to the gods of parents.) A cursed man was similar to this category of criminal, in that he too had been condemned for committing a crime. The difference was that a cursed man could not be officially sacrificed. Instead, anyone who took it upon himself to kill an accursed person would not be deemed to have committed murder. There was thus something paradoxical about the position of the cursed. The authorities would not execute them, yet at the same time, they could be killed with impunity. They were excluded from human jurisdiction, but did not receive any protection from the gods to whom they belonged. As Agamben sums it up, they were “truly sacred, in the sense that this term had in archaic Roman law: destined to die.”
For Agamben, the story of modern politics is the story of increasing numbers of individuals reduced to such a disposable state, people whom the authorities can be bothered neither to execute nor to protect. The group Agamben most often uses as an example of this phenomenon is refugees: Arendt and other Germans rounded up in the Velodrome in 1930s France; thousands of Albanians in Italy herded into a stadium in 1991 where they lived on bread and water; individual asylum claimants trapped in the international zones of European airports, where they can be held for days without access to a lawyer and potentially returned to danger. All of these cases, Agamben writes, create modern equivalents of homo sacer. All involve situations “in which the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign.”
We can easily imagine someone responding to the scenarios Agamben describes by saying that we need to do a better job protecting the rights of the refugees involved. What makes Agamben a unique voice, however, is that in his view this common-sense reaction is itself part of the problem. This side of his thinking is evident in his attitude toward human rights, which is just as skeptical as his attitude toward governments. Agamben’s thinking is strongly influenced by Arendt, and he agrees with her that refugees point up a deep tension in the concept of human rights. As he puts it, “The paradox from which Arendt departs is that the very figure who should have embodied the rights of man par excellence—the refugee—signals instead the concept’s radical crisis.” Unlike Arendt, however, Agamben does not depict human rights as merely an ineffective concept. He sees it as a counterproductive, even sinister notion.
Agamben argues that the chief effect of human rights has been a dangerous expansion of state power. He points to milestones in the rise of rights, such as the French Revolution’s Declaration of the Rights of Man and the Citizen. Before that time, the kings who ruled France made no pretense of upholding the rights of their subjects. If people lived in grinding poverty or died during childbirth, that was a matter of royal indifference. At first glance, few arrangements may sound less appealing. But precisely because the state took so little interest in the welfare of its people, questions of who was French and who was not had no significance at the state level. So long as foreigners respected the authority of the king, little notice was taken of their activities. With the rise of the idea of rights, however, states have been invested with the responsibility of guaranteeing the rights of their people. A consequence of this shift is that governments have become increasingly concerned with questions such as “Who is French?” or “Who is Italian?” By answering such questions in narrow or exclusionary terms, states can recognize the rights not of universal humanity, but merely those of their own citizens.
For Agamben, the expansion of government authority to meet the needs of our biology—our rights to food, shelter, health—has been a historical disaster. Just how disastrous can be seen in one of the many eyebrow-raising passages in which he draws a connection between the doctrine of human rights and the ideology of the Third Reich. “Fascism and Nazism,” Agamben writes, “are, above all, redefinitions of the relations between man and citizen, and become fully intelligible only when situated—no matter how paradoxical it may seem—in the biopolitical context inaugurated by national sovereignty and declarations of rights.” In Agamben’s view, a dark thread connects the rise of governments founded on rights in the eighteenth century to the Nazis. In both cases national identity is a political question, and the state is preoccupied with determining who belongs to the community. That one regime gives a far more extreme answer than the others is a difference of degree, not of kind.
Agamben’s suspicion of government was on display in 2004, when he made headlines after cancelling a visiting professorship at New York University. Agamben cancelled his stay to protest a new U.S. policy of fingerprinting international travellers. “By applying these techniques and these devices invented for the dangerous classes to a citizen,” the New York Times quoted him as saying, “[governments] have made the person the ideal suspect, to the point that it’s humanity itself that has become the dangerous class.” Whatever the drawbacks of political life before the French Revolution, there was no all-powerful state that could track and record our every movement. For Agamben, surrendering biometric information to such states today crosses a dangerous threshold in the loss of our freedom.
In Agamben’s view, one of the most disturbing aspects of the trend of diminished freedom is that it is being cheered along by groups that act in the name of human rights. Rather than challenge the scope of state power, they actively welcome its intrusion in matters of life and death by proclaiming the state the enforcer of rights. Human rights organizations fail to realize that making the state responsible for matters of survival gives it an enormous amount of power in determining who will live and who will die. Or as Agamben puts it in one of his most widely quoted passages, “Humanitarian organizations … maintain a secret solidarity with the very powers they ought to fight.”
In North America, the argument that a government intrusive enough to satisfy every need of its people will face a totalitarian temptation has usually come from the Right. Such was the theme of the famous 1944 book The Road to Serfdom, by the distinguished critic of socialism Friedrich Hayek. Agamben’s work, by contrast, has been described as exuding “the perfume of the radical.” No doubt this is partly because Agamben, unlike Hayek, is just as scathing on markets as he is on governments. But another reason Agamben has become an icon of the Left rather than the Right would appear to be the way his work can explain the recent history of the United States.
It is often noted of political magazines that they thrive in opposition. The conservative monthly The American Spectator, for example, saw its biggest readership during the Clinton administration, while the Iraq War resulted in a sharp circulation increase for The Nation, a left-wing weekly. Something similar seems to happen with political theorists. In Agamben’s case, his rise to prominence occurred during the War on Terror. Many academic critics of the U.S. government’s response to September 11 used Agamben’s concept of homo sacer to explain the legal limbo in which so-called enemy combatants were detained at Guantánamo. Similarly, Agamben himself has characterized the 2001 Patriot Act, and the sweeping emergency powers it granted the U.S. government in the name of counterterrorism, as yet another state of exception instituted by a sovereign.
It is not hard to see why many people would invoke Agamben’s ideas to understand the actions of the U.S. government in the aftermath of September 11. Few administrations have so clearly exemplified “the strange relationship of law and lawlessness” that Agamben is uniquely concerned with. It would be short-sighted, however, to regard Agamben as merely an especially severe critic of George W. Bush. His theory applies just as much to Italian Communist politicians of the 1970s as it does to U.S. Republicans thirty years later. This is because Agamben is a critic not of a particular party or state, but of the modern state as such, and of its ability to consign refugees, Guantánamo Bay detainees and many other groups to an enduring state of exception. Advocates who invoke human rights in response only hasten along the state’s invasive and limitless scope. Such advocates fail to realize that the sovereign state represents not the solution to any human rights crisis, but the cause. “This is what, in our culture, the hypocritical dogma of the sacredness of human rights and the vacuous declarations of human rights are meant to hide.”
Agamben’s arguments provoke strong reactions. A book he wrote on the Holocaust was once branded “pornographic” in the normally calm pages of an academic journal. Another critic has denounced his political writings for exhibiting an “ontological loathing for government.” It is easy to imagine Agamben’s debunking view of human rights also garnering a hostile reaction. It is important to note, however, that Agamben’s criticism of human rights places him in distinguished company.
Ever since the rights of man were widely promulgated in the eighteenth century, there have been thinkers who offer principled reason for rejecting those rights. Hannah Arendt, who also belongs to this skeptical tradition, gives a sense of its lineage when she invokes the father of modern conservatism, Edmund Burke, in her analysis of the situation of refugees. “These facts and reflections,” Arendt writes, “offer what seem an ironical, bitter and belated confirmation of the famous arguments with which Edmund Burke opposed the French Revolution’s Declaration of the Rights of Man. They appear to buttress his assertion that human rights were an ‘abstraction,’ that it was much wiser to rely on an ‘entitled inheritance’ of rights which one transmits to one’s children like life itself, and to claim one’s rights to the ‘rights of an Englishman’ rather that the inalienable rights of man.”
Burke criticized the rights of man as part of a rejection of the French Revolution and an affirmation of a more conservative approach to politics. Yet before the twentieth century, it was not just conservatives who rejected human rights. Many thinkers who otherwise disagreed profoundly with Burke also took a dim view of the rights of man. Karl Marx, for example, ridiculed “so-called human rights,” which he felt did little more than reinforce capitalism and the right to private property. Similarly, nineteenth-century liberal Jeremy Bentham famously denounced the rights referred to in the Declaration of the Rights of Man as nonsense upon stilts.
Agamben’s philosophy contains many original insights, and his references to Guantánamo Bay and the international zones of European airports could not be more contemporary. But the most significant aspect of his work may be that it has kept alive the skeptical tradition regarding human rights. Agamben himself suggests such an affinity when, like Arendt, he singles out Burke’s critique for praise. According to Agamben, the Old Whig’s remark that “he preferred his ‘Rights of an Englishman’ to the inalienable rights of man [contains] an unsuspected profundity.” In the matter of human rights, we thus appear to have come full circle. A thinker of the twenty-first century Left urges upon us the wisdom of the eighteenth-century Right.
What are we to make of Giorgio Agamben and the larger tradition of human rights skepticism he represents? Some rights advocates feel the justification of human rights is too obvious to be worth debating, and so dismiss Agamben’s criticisms. This response is short-sighted. Agamben’s books and articles speak to a large audience, and his ideas are given a respectful hearing in classrooms, conference sessions and editorial offices around the world. Many people believe Agamben is on to something, however much excess his position may contain. Nothing could be more detrimental to the future of human rights than to turn it into a dogma that never responds to probing critiques such as his. We should, therefore, take Agamben’s criticisms seriously.
But should we agree with them? In Agamben’s view, governments became dangerously intrusive only in the eighteenth century, with the rise of rights. But is this really true? Agamben ignores the many ways governments intervened at a “biopolitical” level prior to the age of rights, as when they classified some people as slaves from the time of birth, and devoted a vast legal apparatus to making sure they stayed slaves throughout their lives. As for the suggestion that there is a hidden affinity between human rights and Nazi ideology, it is even harder to take. It is true that when viewed from a high level of abstraction, both doctrines can be said to grant the state a large role in matters relating to the basic biological needs of its subjects. But that is all they have in common. Agamben’s suggestion of a family resemblance passes silently over the role that hatred, racism and anti-Semitism played in Nazi ideology, as if these were minor elements, not worth distinguishing from the inclusiveness and impartiality of human rights.
Make no mistake, Agamben’s analysis contains genuine insights. His emphasis on the power of political authorities to declare states of exception and suspend the normal operation of law captures a disturbing feature of how governments actually operate, especially during times of crisis. Similarly, his philosophy would seem well suited to explain how politicians from the United States to Australia justify harsh non-arrival measures for refugees under the guise of humanitarianism: policies that put refugees’ lives at risk are justified by rhetorical appeals to concerns about the same refugees’ welfare. But for every thought-provoking insight that Agamben throws out, there are one or more key questions he leaves unaddressed. And nowhere is this truer than in regard to his argument against human rights.
When someone asks us to let go of our commitment to human rights, what exactly are we being asked to give up? Human rights, after all, is an idea with several distinct parts. One component, for example, involves a commitment to moral universalism. All human beings occupy a position of moral worth, and we cannot just write off this or that group because they are the wrong ethnicity, the wrong religion or the wrong nationality. A second aspect of human rights is a commitment to some basic minimum standard of treatment. Human rights advocates may disagree whether any particular entitlement is a right or not, but they all share the view that there is some minimum threshold of fundamental rights that no human being should be deprived of. A third aspect of human rights involves idealism: rights advocates believe rights are worth insisting on even, or especially, in situations in which someone’s rights are not being respected (an aspect of human rights, as we saw, that Arendt failed to recognize). Finally, a commitment to human rights is also a commitment to realism, as human rights advocates recognize that rights will not be upheld spontaneously, but must rather be written into law. Rights need to be enforced.
Universalism. Minimalism. Idealism. Realism. Critics and supporters of human rights could potentially have different items on this list in mind when they are debating whether or not to abandon human rights. Agamben does not seem to object to universalism or minimalism. This is perhaps unsurprising. The episodes he highlights of refugees being mistreated, in internment camps during World War II or in airports today, derive their force from the fact that they involve human beings being denied dignity and respect. (If Agamben were urging us not to care how human beings are treated, such stories of injustice would have no point.) Agamben also does not seem to object to the fact that human rights is an idealistic doctrine, one that is invoked in situations in which human rights are violated. Rather, his objection seems to centre primarily on the realist aspect of human rights, as something subject to enforcement by government.
No human rights advocates can be complacent about the role governments play as upholders of rights. As Samantha Power has written, the reason rights were needed historically was that states could not be trusted to automatically respect the moral worth of the human beings under their control. “Yet the evolving human rights system left those same untrustworthy states in charge of enforcing these allegedly inalienable rights.” There is thus a paradox involved in the implementation of rights: the same institution that commits the grossest human rights abuses, the state, is simultaneously tasked with ensuring such abuses do not occur. And states, there is no denying, often fail to live up to this crucial responsibility.
But if the authority that human rights invest in the state is the core of Agamben’s objection, then a key question his argument raises is, what is the alternative? Is there some better arrangement that would allow us to hang on to the universalism, minimalism and idealism of human rights without granting such a central role to governments? A major shortcoming of Agamben’s work is that it never addresses this question. The only concrete political proposal I am aware of in his writings occurs when Agamben endorses a suggestion to make Jerusalem the capital of two states, one Israeli and the other Palestinian (although it is not clear why Agamben would want Palestinians, Israelis or anyone else to have a state of their own, given the low regard in which he holds all governments). More common is for him to discuss problems associated with states and to speculate about “the possibility of a nonstatist politics” without suggesting how the problems of the state can be avoided or saying anything about what a nonstatist politics might look like.
Agamben’s bleak view of the state, combined with his enduring silence in regard to alternatives, has led some commentators to take him for an anarchist. Perhaps Agamben does not mean to go quite that far. But insofar as his philosophy even flirts with anarchism, it shows that the problem he is grappling with is not a problem unique to human rights. It is a problem that will occur when any moral concept is written into law, whether the concept at hand is human rights, citizen rights or some pre-modern alternatives to rights such as virtues or manners or divine commands. Agamben’s real problem, in other words, is not with human rights as a moral concept. His problem is with any political institution powerful enough to enforce moral claims—with political authority as such.
Once we see this, it becomes clear why another Italian philosopher would call Agamben “a thinker of great value but also, in my opinion, a thinker with no political vocation.” Agamben’s lack of a political vocation is evident in his lack of realism. He is not concerned to point to any solutions, propose any new arrangements or endorse any existing political institution on the face of the earth. He is here to bring home to us, relentlessly and unblinkingly if he must, the many negative aspects of the system of sovereign states that dominates the globe. But the more the state itself is taken as the real problem, the less it matters that different governments employ vastly different measures when it comes to refugees and human rights. Agamben’s analysis shifts our attention away from any individual government to focus exclusively on the institution of government itself. Policy-makers who implement the worst measures are thus given an alibi for their actions: the state did it, not us.
Making progress on refugee issues requires distinguishing between better and worse states. We also need to conceptually distinguish politicians who administer severe policies such as interdiction and mandatory detention from the human rights groups who speak out against the same measures. And if we are to make any progress in the world we inhabit, we need to see states themselves as worthy receptacles of our hopes. These are all impulses Agamben’s philosophy would wrongly have us overcome. As sometimes happens with hyper-radicalism, his political stance is ultimately one of arch-conservatism. The radicalism occurs at the level of expression. But at the level of consequences, absolutely everything is left in place.
By keeping alive the anti–human rights tradition, Agamben performs the valuable service of reminding us how contingent was the rise of human rights to a position of prominence today. Before the modern era, people used many concepts other than rights to organize and express their moral and political commitments, and regarded institutions other than the state, such as the family and the church, as morality’s rightful custodians and enforcers. That we now live in a world in which international treaties and organizations use human rights as their justification, and the Universal Declaration of Human Rights is one of the most translated documents on earth, is a contingent rather than necessary truth. It is good to be reminded of this, and that history could have gone a different way. But by offering nothing to replace human rights, Agamben would have us risk those gains that human rights have allowed us to achieve for the sake of an unknown and untested alternative. An alternative, moreover, that could all too easily exhibit the same problems Agamben associates with human rights.
When historians look back at Agamben’s rise during the early years of the twenty-first century, they may take it as a sad commentary on just how poorly the United States and other governments upheld human rights during the same period. But that would at least explain how a thinker as unworldly and unrealistic as Giorgio Agamben became a prominent interpreter of such a worldly and realistic doctrine as human rights.
In the early 1990s Algeria descended into a civil war that saw writers and journalists targeted for arrest, imprisonment and assassination. Events in Algeria inspired Salman Rushdie, Václav Havel, Susan Sontag and roughly three hundred other authors to establish the International Parliament of Writers. A founding belief of the IPW was that traditional forms of literary protest were worn out and inadequate. In the words of IPW member Pierre Bourdieu, “writers and intellectuals can no longer content themselves with petitions and protests. Their first priority today is to reply to censorship with the creation of new spaces of freedom.” In keeping with this philosophy, the IPW held a congress in Strasbourg, France, in 1996, at which a distinguished group of mayors, European Union dignitaries and intellectuals gathered to hear French philosopher Jacques Derrida issue a call for “a genuine innovation in the history of the right to asylum.”
Derrida is our second philosophical responder to Arendt. At the time of his IPW speech he was sixty-five years old. Born and raised in Algeria, he had gained prominence in France in the 1960s as the founder of the philosophy known as deconstruction. Deconstruction is notoriously difficult to sum up, but one undaunted reference work describes it as a way of reading literary and philosophical texts that “casts doubt upon the possibility of finding in them a definitive meaning and traces instead the multiplication … of possible meanings.” This manner of reading is controversial because, in the view of some critics, deconstruction presses its case too far and winds up abolishing truth and meaning altogether. (Derrida also has an idiosyncratic and difficult writing style, and this has given rise to the additional charge that deconstruction is a form of obscurantism.)
Derrida gained an unusual degree of prominence over the course of his career. A 2002 documentary depicts him speaking to large and enthusiastic audiences from New York to South Africa, generating a level of fascination we tend to associate more with rock stars than university professors. A consequence of Derrida’s fame was that he was frequently asked to lend his name to political causes. As a friend of the Derrida family remarked after his death in 2004, “Toward the end of his life, [Derrida] enjoyed the same status as Aristotle among the ancients, and every perception of injustice was routed to his desk.” In response to these requests, Derrida produced a steady stream of speeches, letters and articles that are quite unlike his academic writings. Written in a straightforward prose style, they address concrete issues such as the death penalty or the European Union. As these political writings do not involve deconstruction, even Derrida’s most severe academic critics could in principle agree with them.
Derrida’s speech to the International Parliament of Writers is of this type. It addresses two developments involving immigrants and refugees that had recently occurred in France. The first was an immigration reform known as the Pasqua law. Named after Charles Pasqua, France’s interior minister at the time of its introduction, the 1993 Pasqua law gave French police the power to stop and check the papers of anyone who might be a foreigner. The law also ended the practice of automatically granting citizenship to the children of foreigners who were born on French soil once they turned eighteen. Such children would now have to apply for French citizenship in young adulthood, an application that could potentially be rejected. Shortly after Derrida’s speech, France’s centre-right government would introduce draft legislation that went even further. It would have required any French citizen who hosted a guest from outside the European Union to notify the authorities of the foreigner’s arrival and departure. Derrida’s speech, delivered at a time when such measures enjoyed a broad plurality of support in public opinion, is a sustained protest against the “mean-minded” attitude he takes them to express.
The second and more immediate development addressed in Derrida’s speech was the creation of a network of “cities of asylum.” This IPW initiative, which began in 1994, saw the writers’ group take it upon itself to place refugee authors with host municipalities. Each exiled writer received a place to work, stipends of up to US$50,000, assistance with immigration and publishing and, where necessary, physical protection. A conscious goal of the project was to seek out the co-operation of cities rather than states. As IPW executive director Christian Salmon summarized the organizations’ thinking, “Since the Middle Ages, cities, being more liberal in this regard than states, have very often welcomed people who had been banished, and protected those who were threatened.” Within five years of its founding, the asylum network came to include thirty municipalities, including Barcelona, Frankfurt, Salzburg and Venice, and had spread as far as Brazil, Mexico, Senegal and Nigeria.
Derrida’s speech is a meditation on the cities of asylum project and how it might serve as an inspiration for a new model of protection, one that would be extended not merely to exiled writers, but to asylum-seekers in general. Derrida points to a crisis of asylum in France, and argues that the traditional statelevel system is no longer effective. The underlying cause of this breakdown, he argues, is the tension between human rights and national sovereignty highlighted by Arendt. As he puts it, “Arendt was writing of something which still remains true today.”
Derrida’s use of Arendt’s ideas to explain contemporary European trends is confident and clear. When it comes to offering solutions to the asylum problem, however, he grows tentative and hesitant. He argues that experimentation with different forms of protection is necessary, and that the cities of asylum project should serve as a model for what one new form of asylum might look like. When it comes to specifics, however, Derrida seems reluctant to put forward his own blueprint for reform. Instead, he seems to want his remarks to inspire the imagination of his audience, who will conceive their own solutions to the problem. (This position is one Derrida also adopts in his philosophical works, perhaps out of distaste for the idea of a philosopher serving as an authoritative guru.) If that is the case, it is worth noting that Derrida’s remarks can be taken to suggest two different understandings of what a “city of asylum” might mean.
Sometimes Derrida seems to be concerned with cities of asylum in a more or less literal sense, as when he speaks of a new role for cities, “equipped with new rights and greater sovereignty.” Here and elsewhere, he seem to suggest that the city is the last, best hope for human rights. The state is exhausted, and the history of the European Union to date has not revealed continental entities to be any better. As Derrida puts it, “At a time when we claim to be lifting internal borders, we proceed to bolt the external borders of the European Union tightly.” But what if we have been looking in the wrong place? What if instead of looking above states, we should instead be looking below them? In regard to the city, Derrida asks, “could it, when dealing with the related questions of hospitality and refuge, elevate itself above nation-states, or at least free itself from them, in order to become … a free city?”
This proposal may sound unrealistic. As if to allay this fear, Derrida points out that his speech is taking place in Strasbourg. Located on France’s border with Germany, the Alsace capital embodies sovereignty’s changing history. Before its annexation by France in the 1600s, Strasbourg was part of the Roman Empire, a disputed territory fought over by religious and civic authorities, and a Free Imperial City with special status under jurisdiction of the Holy Roman Emperor. Between the 1870s and 1940s, France and Germany exchanged control of Strasbourg four times. After World War II it became home to pan-European institutions such as the Council of Europe and the European Court of Human Rights, and it has since come to symbolize a united Europe. In keeping with this unique status, in 2005 Strasbourg was designated one of the EU’s first Eurodistricts, a new administrative entity that integrates urban areas that straddle national borders.
When Derrida gave his speech, Strasbourg, the Council of Europe and the European Parliament all had representatives in the audience, and they would have been familiar with the city’s history. Derrida would thus appear to be drawing attention to the uncharted possibilities Strasbourg represents when he refers to it as “this generous border city, this eminently European city, the capital city of Europe, and the first of our refuge cities.” At a time when European institutions were rapidly evolving, Derrida was saying, Europeans should take seriously the idea that that evolution be directed in such a way as to give greater autonomy to cities, so that they might function as islands of asylum in an ocean of unwelcoming states.
This, then, is the first understanding of a city of asylum Derrida’s remarks suggest: give actual cities more sovereignty. The second interpretation, by contrast, takes a more metaphoric form. It is hinted at by the many religious references scattered throughout Derrida’s remarks. At one point, for example, he argues that the asylum cities project evokes the notion of a city of refuge as described in the Book of Numbers. As Derrida summarizes the relevant biblical passage, “God orders Moses to institute cities which would be, according to the very letter of the bible itself, ‘cities of refuge,’ or ‘asylum,’ and to begin with there would be six cities of refuge, in particular for the ‘resident alien,’ or ‘temporary settler.’ ” In a similar spirit, Derrida urges his audience to study the medieval practice of sanctuary, which saw European churches offer refuge to criminals and other individuals wanted by political authorities. Finally, he evokes the concept of hospitality, a term with special meaning in his philosophy, one that functions as a broad synonym for ethics. This occurs when Derrida refers to an “unconditional Law of hospitality,” a phrase that is meant to suggest the notion of a moral law that is conditioned by human-made laws but is not reducible to any one of them.
A moral law above the law. Biblical cities of refugee. The medieval practice of sanctuary. These ideas all have something in common. Each has traditionally been used to justify the so-called sanctuary movement. This term became prominent in the United States in the 1980s, and has since come to refer to churches that proclaim themselves “sanctuaries” for non-citizens who have run afoul of immigration laws, particularly people whose refugee claims have been rejected. These types of sanctuary cases, which usually see church officials arguing that their government has failed to recognize a genuine refugee, are now a fact of life everywhere from North America and Europe to Australia and South Africa. Such cases can see a failed refugee claimant and his or her family living inside a church for months or even years. Governments are often slow to take action in response, no doubt because of the bad publicity that raids on churches can generate.
Derrida’s references to what he calls our “secularized theological heritage” suggests an affinity between church-based sanctuary and the form of protection offered by the International Parliament of Writers. In both cases, offering protection to refugees is not something left to governments. It is rather a social good that private groups take it upon themselves to provide, the difference being that one group is literary while the others are religious. Such a parallel is further suggested by Derrida’s remarks about hospitality, which he sees as an ethical idea that can be embodied on a public or a private level. The parallel to religious sanctuary is also in keeping with the positive attitude Derrida exhibits toward people in France who were willing to break the law in the name of welcoming foreigners, in defiance of the measures French politicians were then proposing. Referring to the government’s plan to criminalize certain forms of hospitality extended toward foreigners, Derrida remarks, “We have doubtless chosen the term ‘cities of refuge’ because, for quite specific historical reasons, it commands our respect, and also out of respect for those who cultivate an ‘ethic of hospitality.’ ”
What to make of Derrida’s unusual speech? Many of the restrictive immigration measures he criticized would later attract widespread opposition. In 1997, 100,000 people marched in Paris to defend their right to have non-Europeans in their homes without informing the authorities, causing the government to abandon its planned legislation. Similarly, the Pasqua law was eventually revised. It is to Derrida’s credit that he spoke out against such policies when they still enjoyed significant support in public opinion. He is also right to stress the relevance of Arendt’s ideas for contemporary European debates, and he displays an admirable independence of mind by treating sovereignty not as a brute and unchanging fact of nature, but as an institution within the realm of rational scrutiny and revision. In short, there is much to admire in Derrida’s position.
But when it comes to human rights, the question is whether Derrida points us toward a solution to the problem Arendt identified. Does either interpretation of his notion of a city of asylum grant meaningful rights to refugees?
In regard to cities of asylum taken in a literal sense, it is worth noting that there once was something like such a city. This was Shanghai, which on the eve of World War II became an unlikely haven for refugees. In the late 1930s the Far Eastern metropolis was populated by over four million Chinese people and roughly 100,000 foreigners. It was, in the words of historian Michael Marrus, “the fifth largest port in the world—crowded, dirty, cosmopolitan, with a reputation for crime, violence, and intrigue.” In 1938 and 1939 Shanghai, unlike every other jurisdiction on earth, required no visas or travel papers for entry. This meant it would not turn away Jews, who began sailing for Shanghai in large numbers after Germany annexed Austria. So many refugees arrived that, by the summer of 1939, several Shanghai neighbourhoods had a Germanic feel, having become home to German-language newspapers, concert halls and coffeehouses. In its status as the “port of last resort,” Shanghai eventually allowed between fifteen thousand and seventeen thousand Jews to escape the gas chambers.
At first glance Shanghai might appear to lend support to Derrida’s proposal, in that its openness to refugees was a result of an unusual form of government. Since 1854 Shanghai had been home to two foreign-controlled districts, known as the French Concession and the International Settlement, both of which were administered by municipal councils made up primarily of Westerners. After Japan invaded in 1937 and took over all Chinese-administered parts of the city, power was split between three entities, none of which was authorized to control immigration (hence the openness to foreigners). However, in August of 1939, Japan, which controlled Shanghai’s harbour, imposed entry requirements that eventually brought Jewish immigration to a halt. The governments of France, the United States and the United Kingdom also worked to close Shanghai’s doors. The resulting effort, according to historian David Kranzler, “took on the character of a universal conspiracy to prevent further emigration from Germany of those thousands of potential refugees whose only haven was Shanghai.”
National governments played a key role in ending Shanghai’s status as a city of refuge. But it is also important to note the actions of the Shanghai Municipal Council, the democratically elected body that oversaw the International Settlement (the French council took similar steps, but reported to an unelected French official). Rather than protest the actions of the Japanese authorities, the council acted as quickly as it could to put in place a similar policy for the International Settlement. As historian Marcia Ristaino has noted, anti-refugee attitudes were widespread among Shanghai’s English-speaking community. “Both American and British residents displayed the garden variety of country-club anti-Semitism by wanting to exclude these poor and ‘foreign’ persons from their neighborhoods. It was common to see advertisements in the prestigious North China Daily News that blatantly refused rentals to refugees.”
The fact that a democratically elected municipal body such as the Shanghai Municipal Council could close the door to deserving refugees highlights a problem with Derrida’s suggestion that cities be granted “new rights and greater sovereignty.” The problem is not that any contemporary city with greater sovereignty will necessarily share the prejudices of 1930s Shanghailanders. The problem is that shifting sovereignty to an entity other than a state is no guarantee that the entity in question will uphold the rights of refugees. Just as a larger sovereign entity above states is not more likely to enforce the rights of asylum-seekers simply because it is larger (as European Union asylum policy would appear to attest), a sub-state entity such as a city is no more likely to uphold the rights of asylum-seekers simply because it is smaller.
Indeed, if anything, sovereign cities might well be less welcoming to refugees than are states. As it is now, when refugees arrive in Western countries they are often portrayed as overwhelming the host society’s capacity to absorb them, even when the refugees in question represent a minuscule proportion of the receiving society’s population. Given that the average city has a smaller population than the average state, this anxiety-driven response to refugees could easily become even more pronounced if cities became the primary receiving entities. (If a city were small enough and received a large enough influx, the concern might actually be true for once.) Derrida’s proposal requires a greater level of detail outlining how civic sovereignty could be designed so as to avoid this problem. It also needs to be explained why, assuming some such model of sovereignty exists, it cannot be implemented on a national level.
This brings us to the second version of the city of refuge suggested by Derrida’s remarks, the one that implicitly likens the Parliament of Writers project to a church sanctuary. It is not clear how far Derrida wants to push the parallel: he may be suggesting the writers’ group go so far as to break the law, the same way churches do when they shelter refugee claimants. Alternatively, he may merely be suggesting that as a private group, the IPW should do what it can to ensure asylum to individual refugees and their families. But insofar as Derrida’s proposal even hints at illegal activity, our assessment of it will be influenced by where we stand on church-based sanctuary, a question that requires a brief detour into the debate over this controversial practice.
Church-based sanctuary has been called everything from an “obsolete privilege” to an institution that “facilitates lawlessness.” Critics are right to stress the importance of obeying the law, but wrong to think that this represents a knock-down argument against sanctuary. Leaving aside religious defences of the practice, which are usually aimed at a particular religious community, sanctuary for genuine refugees can be justified on inclusive grounds as a form of civil disobedience.
People who engage in certain forms of law-breaking can be separated from common criminals if they meet five conditions. The first is that they break the law in a non-violent way. Second, they must do so publicly, and not try to mask their identities or hide from the police. Third, they must be willing to go to jail if the authorities choose to press charges. Fourth, their disobedience needs to be plausibly construed as correcting an injustice, rather than advancing their own gain (law-breaking aimed at maximizing profits or changing a zoning bylaw to build a mansion could never count as civil disobedience). Finally, the illegal activity must be undertaken as a last resort, either after all avenues of democratic change have been exhausted, or to avert some serious and immanent wrong that the authorities cannot or will not prevent.
When church sanctuary meets all of these conditions, it should cause us to reject “the mindless view that conscientious disobedience is the same as lawlessness,” as the legal theorist Ronald Dworkin once put it. From this point of view, everything hangs on the circumstances of the individual asylum-seeker involved, and how much evidence there is that the government has made a mistake with his or her file. Given the fallibility of human judgment, it seems reasonable to expect that governments will sometimes make mistakes and fail to recognize a genuine refugee. By the same token, however, churches may also sometimes go astray and offer sanctuary to individuals who do not really warrant it. This means that there can be no across-the-board justification or rejection of sanctuary, only judgments about individual cases.
Is it possible to determine how many sanctuary cases to date have involved genuine refugees? There is no uncontroversial way to answer this question. It is worth noting, however, that governments have acknowledged that deportation decisions are sometimes mistaken. A study of church sanctuary in Canada, where the practice is comparatively common, found that there were thirty-six sanctuary cases between 1983 and 2003, involving 261 people made up of asylum claimants and their family members. Eventually 70 percent of the people being sheltered this way obtained legal status.
What does Canada’s experience show? Suppose for the sake of argument that the Canadian government was far too lenient in the majority of its reversals, and only 20 percent of those 261 individuals really deserved to avoid deportation. Even if that were the case, it would suggest that twenty years of sanctuary had the overall effect of not making a difference in a third of instances; allowed seventy-odd people to circumvent normal immigration procedures to remain in Canada; and prevented the deportation of fifty-two deserving people, made up of refugees and their family members. Given that someone who obtained citizenship this way would be committing a victimless crime, while a deported refugee family is at risk of seeing at least one of its members killed, the record of Canadian sanctuary to date would appear on balance to be more good than bad.
The upshot of this excursion into the sanctuary debate? Derrida is not crazy to find inspiration in church-based refugee sanctuary. Indeed, if he were encouraging the writers’ parliament to commit civil disobedience, it would only strengthen his proposal. If the IPW were to get into the asylum business, it would do the most good if it devoted its energies to helping genuine refugees who had been mistakenly rejected by governments. Yet even so, there is still a problem with Derrida’s finding inspiration in church-based sanctuary. It is that sanctuary can at best be an occasional corrective to a government-run asylum system, rather than a replacement.
The largest sanctuary initiative of all time was probably the one that developed in the United States in the 1980s. At the time, critics charged that U.S. Immigration authorities were deliberately rejecting asylum claims by people from Central American countries that were U.S. client-states. In response, a group of priests, nuns and lay church members based in Arizona began to help Hondurans and Salvadorans, either picking them up just after they crawled through holes in the international fence or hiding them in the backs of station wagons and driving them over the border. Between 1981 and 1986, the Arizona sanctuary movement built up a network of churches (and a few synagogues) that eventually stretched as far north as Chicago. Yet even though the Arizona activists managed to develop a national network of sanctuaries, and went so far as to engage in people-smuggling, the total number of people they helped is estimated at two to three thousand. That is a tiny proportion of the tens of thousands of asylum cases that the United States accepted during the same six-year period.
This discrepancy should remind us that when it comes to asylum there is no comparing the power of churches to that of a state. The vast power imbalance between the two institutions was vividly brought home when the U.S. government eventually sent eight members of the Arizona network to prison for people-smuggling. Since that time, authorities in other countries have also demonstrated a willingness to bring the law to bear against sanctuary providers. In 2004, for example, Canadian police launched their first raid on a sanctuary church, St.-Pierre United in Quebec City, and deported an Algerian refugee claimant who was staying there. A similar raid occurred on an even larger scale in Derrida’s own city in 1996, when fifteen hundred police used tear gas, clubs and axes to storm Paris’s St. Bernard Church and evict three hundred African migrants who had been living inside (a raid carried out with such force that when it was broadcast on the news it triggered national protests). Derrida’s private sanctuaries would ultimately seem no match for a government determined to deny hospitality to an individual.
In 2004 the International Parliament of Writers dissolved and was replaced by two separate organizations in North America and Europe. The website of the International Cities of Refuge Network, or ICORN, as the European successor group is called, features the following disclaimer: “Neither the network nor its individual cities have authority over the laws and regulations of any country. Therefore [it] strongly discourages all applicants and candidates from relying on ICORN as their only option for refuge.” Private organizations that offer help to refugees perform an important and necessary task, and the lengths to which many religious individuals have gone is nothing short of heroic. But the limitation noted by ICORN will apply to any private asylum initiative, whatever its form. For this reason, it does not represent an adequate response to the problem Hannah Arendt identified.
Agamben and Derrida represent two different philosophical responses to Arendt. Agamben seeks to disabuse us of our commitment to human rights and what he sees as its negative dependence on the state. Derrida, by contrast, focuses on sovereignty and urges us to think outside its current bounds. Derrida employs the language of hospitality rather than rights, but he is much more comfortable than Agamben is with the common-sense idea, shared by human rights advocates, that we need political institutions to enforce, through law, our moral commitments. Yet both Derrida and Agamben take it for granted that the appropriate response to Arendt involves a fundamental rethinking of one of the basic political categories she pointed to. But not everyone thinks that Arendt’s human rights problem is best addressed this way. Our second group of writers, the pragmatists, respond to Arendt at a more down-to-earth level.
This brings us back to Samantha Power, the first of our two pragmatists. Power was born in Ireland and moved to the United States as a child. In her mid-twenties she travelled to Bosnia to cover the war there. After returning to the United States she served as the founding director of the Carr Center for Human Rights Policy, a research and teaching institute based at Harvard. In 2005–06 she took a leave of absence from academia to work as foreign policy adviser to Senator Barack Obama, whose interest in genocide she is credited with fostering (and whose presidential election campaign she resigned from after calling Hillary Clinton a “monster” in a newspaper interview).
Throughout all these guises, Power has approached human rights issues from a perspective that mixes idealism with a strong dose of realism. Such a cast of mind is evident in Power’s account of her visit to Chad. The camps the Darfuris occupied, she notes, were “a stew of disease and malnutrition,” not fit for animals, let alone human beings. As the refugees approached Power, they would discuss with her how they thought the outside world should respond. “They would come up to you,” Power recalls, “and they would draw on their sense of what human rights are. It wasn’t a formal sense of what the Universal Declaration of Human Rights says, but a much more intuitive sense: ‘Hey, we’re people, and this is what they’ve done to us. Aren’t you coming? Aren’t you on the outside going to come and help?’ ”
Power had devoted her career to awakening politicians to the need to stop crimes against humanity, and she could not have agreed more strongly with the basic moral claim the refugees were making. Yet reading Arendt had also brought home to Power that moral claims often fail to motivate action. As Power puts it, “I was reminded [that] summer again of Arendt’s large and prophetic point that when all you can draw upon is your humanity, on ‘Hey, I’m a human being, help,’ that that doesn’t actually buy you very much. That it’s very rarely enough to trigger outside action, to simply be a human being in need.”
Although Power is an admirer of Arendt, she does not see human rights as an unenforceable concept. Instead, she points to the important role that non-government organizations now play in rights advancement. As Power notes, such groups have grown in size and scope, to the point that they are able to expose and oppose human rights violations around the world: “Arendt could not have envisaged a day when a non-state entity like Human Rights Watch would spend more than US$22 million per year, and would conduct its own rigorous field investigations to shame criminal officials, their abettors, and the world’s bystanders. And far more important than international human rights groups are the hundreds of thousands of indigenous human rights groups—led by labor organizers, women’s suffrage advocates, AIDS activists, fledgling independent newspaper journalists, and others—throughout the developing world. It is with these groups that hope lies.”
For Power, an important reason to place our hope in the rights groups of the developing world is that they “see themselves not as ‘human beings in general,’ ” but as members of particular communities, with a stake in how elections are conducted, in whether the police uphold the rule of law, and other local issues. For this reason, Power suggests, such groups are not vulnerable to the criticisms Arendt makes of human rights and their lack of effectiveness. When we look beyond states to civil society, we find a reason to continue to place our faith in the rights of humanity.
Power’s view of NGOs is a refreshing contrast to Arendt’s more cynical take on the subject. Arendt was dismissive of the “professional idealists” who formed such organizations. She wrote, “The groups they formed, the declarations they issued, showed an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals. No statesman, no political figure of any importance could possibly take them seriously.” Arendt’s negative view has not aged well. As we saw in the Haitian refugee crisis, it was a coalition of groups acting in the name of human rights that closed the Guantánamo HIV camp. This is only one example of what NGOs are capable of, and Power is right to stress the crucial role such organizations play in the advancement and protection of rights around the world.
But this still leaves the question of whether NGOs can address the particular problem we are concerned with, which requires the enforcement not of the rights of people in general, but of people seeking asylum. Power’s remark that rights groups often see themselves as members of local communities first and foremost, rather than proponents of human rights in general, does not really address Arendt’s criticism of human rights, as her criticism does not have to do with how human rights organizations see themselves, or what their motivations are. Rather, Arendt highlighted the problem of upholding enforceable legal rights for someone who is no longer a member of a political community and so no longer fully protected by the law of any country.
Once the nature of Arendt’s human rights problem is recalled, it is sobering to note a less encouraging lesson of the Haiti refugee crisis. The Yale team was supported by one of the most distinguished coalitions of non-governmental groups ever assembled. Supporting briefs in its lawsuits were filed by Amnesty International, the Lawyers Committee for Human Rights, the International Human Rights Law Group, the American Immigration Lawyers Association, the United Nations High Commissioner for Refugees, the National Association for the Advancement of Colored People, the American Jewish Committee, the Anti-Defamation League and a half-dozen other organizations. These and many other dedicated NGOs also conducted extensive extra-legal advocacy work on the refugees’ behalf. Yet in the end, even they were unable to overturn the Bush-Clinton policy of returning refugees to danger.
That such a distinguished coalition of NGOs was ultimately no match for federal administrations determined to violate the rights of refugees should cause us to recognize what NGOs can and cannot achieve on their own. What refugees need is shelter and protection, either from their own government or from some other powerful entity that is trying to do them harm. That is not something labour unions, AIDS activists or the other groups Power mentions can provide by themselves. Rather, it is something that can come only from another state, one that admits refugees and allows them to remain inside its borders. As important as NGOs are, they are not capable of enforcing the rights of refugees on their own. Stressing the importance of NGOs as Power does, therefore, although it is true as far as it goes, does not strike Arendt’s human rights problem at its root.
An emphasis on the responsibilities of states is one of the defining features of the work of Matthew Gibney, our second pragmatist and final respondent to Arendt. Like Power, Gibney is himself a migrant. A native of Australia, he moved to the United Kingdom in the early 1990s to study at the University of Cambridge. While there he became interested in asylum and wound up writing his PhD dissertation on the subject. Almost as soon as Gibney started his research, Germany experienced its asylum crisis, and asylum shortly became a high-profile issue in other countries. “The topic was hot pretty soon after I picked it up and has remained so ever since,” Gibney says. Today Gibney continues to work on issues related to asylum at the Refugee Studies Centre at the University of Oxford. “It is an area where the state can make an absolutely huge difference in an individual’s life,” Gibney says of his ongoing interest in the topic. In 2004 he published The Ethics and Politics of Asylum, the first book to examine both the political and ethical issues surrounding asylum.
Gibney’s book opens with a quotation from Arendt, whom he goes on to criticize and praise. He points out that Arendt tended to see refugees in state-centric terms, as people persecuted by their own governments. The concept of a refugee is more coherent, Gibney argues, if it is broad enough to include someone like an Iraqi displaced by the U.S.-led invasion of Iraq, or a Zairean in flight from the Ebola virus. That is, anyone whose vital subsistence or security needs have been violated in such a way that their only recourse is to flee their home country. In redefining the very category of a refugee, Gibney displays his frequent willingness to go beyond Arendt’s analysis. But when it comes to the difficulty of enforcing the rights of refugees, Gibney agrees with her. As he crisply summarizes her basic insight, “In spite of the lofty rhetoric of human rights … the implications of a lack of citizenship in a world carved up amongst sovereign nation-states were, as Arendt realised, absolutely devastating.”
Gibney’s approach to writing about refugees is reminiscent of Arendt’s in that he puts forward a political theory that is richly informed by historical fact. His book is simultaneously an incisive critique of what contemporary thinkers have said about asylum issues and a magisterial documentation of the ways Western states respond to asylum-seekers. But Gibney ultimately seeks to do more that diagnose and describe intellectual and political trends regarding asylum. He also makes recommendations regarding how governments should treat refugees and asylum-seekers. In doing so, Gibney hopes to avoid the otherworldly perspective that sometimes informs the recommendations of academic theorists. As Gibney puts it, “The detached perspective of the ‘philosopher,’ in which all or most obstacles to what is practically possible are removed, can give us a critical perspective that is simply unavailable to policy-makers.”
This pragmatic perspective leads Gibney to eschew some of the more radical suggestions that other writers on asylum have made. As he notes, there is an academic school of thought that suggests the only way wealthy states can be fair to international migrants is to adopt open borders. Yet this overlooks the negative effect unfettered immigration could have on the welfare state: not only is it possible that a wave of recent arrivals might have short-term welfare needs that drain the receiving state’s resources, but open borders could potentially result in such a huge influx that it erodes the population’s willingness to provide public goods. Only slightly less unrealistic, Gibney argues, is the position of some refugee advocates that all measures states currently use to deter asylum-seekers from reaching their shores, such as imposing visa requirements and airline fines, are unjust and must be abandoned. It is a fact of life that economic migrants lodge false refugee claims, Gibney notes, and the question is not whether governments should put in place measures intended to stop them, but which particular no-entry measures are defensible.
What refugee policies does Gibney consider realistic? In outlining his answer to this question, we come to the core of Gibney’s response to the asylum crisis. One thing politicians can do, he proposes, is to increase the number of refugees they admit—without raising the overall number of migrants they take in. Gibney notes that immigrants currently fall into three broad categories: economic migrants, family reunification cases and refugees. In no Western country do refugees make up one-third of the total immigration intake. This is the case even though refugees have a stronger moral case for entry than members of the other two categories. Were states to decide that they should take in more refugees at the expense of economic and family migrants, Gibney argues, it would “have profound implications for the distribution of protection.”
This proposal is meant to avoid the backlash that might be expected if politicians were to increase immigration overall. Gibney’s scheme is intended to be politically effective, given the constraints politicians currently face. But as Gibney points out, political leaders should not merely follow public opinion: they also have a responsibility to shape it. To that end, he proposes more long-term measures, designed to challenge the constraints politicians now operate within.
To foster that outcome, Gibney calls on politicians to pledge not to exploit popular anxiety over foreigners, as they sometimes do by playing off negative stereotypes about people seeking asylum (such as that they are all criminals, or prone to disease). As Gibney puts it, “Political leaders could attempt to establish greater political bipartisanship on asylum issues in order that the minimum requirements of humanitarianism can be met. The costs able to be borne for refugees are likely to be greater in a state where there is a political consensus not to exploit asylum for electoral gain than in one where it is seen like any other issue.” Gibney also proposes government-sponsored public relations campaigns to increase awareness of the moral importance of asylum. Such efforts would see more resources devoted to combating racism and xenophobia, which sometimes colour public attitudes toward refugees.
In addition to these original proposals, Gibney also echoes a call that previous writers on refugee issues have made. It is that refugee-receiving states work together to create a new international system based on the principle of resettlement sharing. Right now, the United States, Canada and a few other Western countries individually seek out refugees from crisis zones overseas. But not only are these countries the exception, there are wide disparities in the overall number of refugees different countries admit. In 2004, for example, the United States, with a population of 292 million, took in 74,016 refugees, enough people to fill a modern football stadium. Japan, meanwhile, with a population of 127 million, found it in its heart to take in 24 people that same year, or about enough to fill a small bus. The disparity widens even more when we consider the millions of refugees in poor countries such as Pakistan and Iran. Gibney joins a long line of writers who call for an international system that would distribute refugees among receiving states in a more even-handed way. Various methods of doing so have been put forward, but each would see receiving countries work together to relocate refugees, either directly from crisis zones or from one receiving country to another, to counteract the wide disparities that characterize the current system.
Gibney’s approach, like Power’s, might be described as this-worldly idealism. It eschews radical or utopian visions for more practical and achievable outcomes. Although Power directs her attention to non-governmental organizations while Gibney focuses on politicians, their proposals are not mutually exclusive. There are many areas where NGOs and governments can work together. Consider Gibney’s proposal to reshape public opinion. This has been a goal of groups such as the Refugees, Asylum-seekers and the Media Project, or RAM, a U.K.-based organization set up to counter the tabloid press’s negative depiction of refugees by having British media outlets hire journalists who are themselves refugees (a project that has since evolved into the Exiled Journalists’ Network). Politicians can provide groups such as RAM with financial and other forms of support. Similarly, Canada currently allows churches and other organizations to sponsor the resettlement of refugees from overseas, a process that often sees government working with non-government groups. Were European and other countries to adopt a similar program, it would harness the energy and creativity of NGOs in an area that has traditionally been left entirely to governments.
The measures Gibney recommends would all be welcome improvements on the way things currently stand, none more so than an international system of refugee resettlement. At the same time, however, his proposals come with built-in limits. Take his suggestion that one-third of the immigration intake of Western states be made up of refugees. From a humanitarian point of view, such an arrangement would certainly be an improvement over the current composition of immigration streams. But a key question this approach raises concerns how big the overall immigration intake of each country should be. Gibney’s answer is that a country’s existing immigration level should set its benchmark. In other words, refugees should make up one-third of however many immigrants any given country takes in right now. As Gibney points out, taking existing immigration levels as a standard gets around the problem of determining some objective international standard: “one can assume that these judgements provide a reasonable (albeit subjective) indication of the total volume of new entrants a state is capable at a minimum of integrating; it is, after all, the level that the government itself has chosen.”
This reasonable-sounding proposal has a paradoxical element that becomes evident when we ask what its ramifications would be in places such as Japan, Israel and Germany, which do not see themselves as countries of immigration (or not a country of non-Jewish immigration in Israel’s case). In Gibney’s scheme, these countries would be allowed to take in low to negligible numbers of conventional refugees—because they take in few immigrants to begin with. Yet placing such policies beyond criticism risks legitimizing the same attitudes that the asylum-awareness campaigns and other measures Gibney proposes are meant to call into question. Similarly, if the international resettlement scheme Gibney favours is to come into being on a wide scale, the unreceptive attitudes of countries with tight models of citizenship must be up for re-examination. Challenging such attitudes, however, requires a degree of criticism of national policies toward immigration, something Gibney’s approach consciously avoids.
Finally, there is Gibney’s call for greater bipartisanship on asylum. There have been times when such an understanding did inform national debates. Malcolm Fraser, a former prime minister of Australia, once told an interviewer that during his time in power, in the 1970s and 1980s, there was such a consensus in place regarding refugees. Fraser, however, made this remark in 2004, after the Australian consensus had been replaced by the attitude on display in the Tampa episode. The timing of Fraser’s comment illustrates how we tend to become aware of the value of a bipartisan consensus on asylum only after it has already broken down. As Gibney himself notes, anti-immigration politicians such as Pat Buchanan in the United States, Pauline Hanson in Australia and Jean-Marie Le Pen in France are all familiar products of democratic politics. The result would seem that bipartisanship regarding asylum will often be hardest to implement just when it is most needed.
This highlights the main problem with Gibney’s approach. All of his proposals rely on elected politicians doing the right thing. As we saw in the case of Australia, where a group of backbench MPs ended mandatory detention, individual politicians can indeed bring about significant changes. But if Agamben goes too far in diverting our attention away from individual political actors, Gibney goes too far the other way in proposing solutions that ignore the structural factors that cause refugees to be mistreated. Often there are powerful incentives for politicians not to do the right thing, as when public opinion is genuinely against refugees. If we place our faith in politicians alone to uphold the rights of asylum-seekers, we are bound to be disappointed. We need to consider the possibility that some decisions, particularly those involving fundamental rights, should not be in the hands of elected officials. Yet precisely because Gibney’s approach takes the exclusive authority of politicians for granted, it does not challenge the latitude they enjoy in dealing with asylum. Like Power’s recommendations, Gibney’s proposals are missing something. They are important and worth acting on wherever possible, yet not sufficient to safeguard the rights of refugees seeking asylum.
The philosophers and the pragmatists respond to Arendt in very different ways. Derrida and Agamben adopt a radical approach, asking us to rethink our sovereign institutions or our commitment to human rights. Power and Gibney take a more practical view, yet in so doing, they leave intact the structural features that make enforcing the rights of refugees so difficult in the first place. Neither approach, in short, mixes idealism with realism in quite the right measure. Could there be a third way that gets the balance right? I believe that there is, and that there is one country where such an approach has already begun. It is to that country that I now turn.