Arendt on Human Rights

In The Origins of Totalitarianism Hannah Arendt devotes a chapter to a critical analysis of human rights. Arendt isn’t skeptical of the notion of political rights in general, but instead defends a national or civil conception of rights. Human rights, or the Rights of Man as they were commonly called, are conceived as being universal, inalienable and possessed simply in virtue of being human. In contrast, civil rights are possessed in virtue of belonging to a political community, most commonly by being a citizen. Arendt’s primary criticism of human rights is that they are ineffectual and illusory because their enforcement is in tension with national sovereignty. Since there is no political authority above that of sovereign nations, state governments have little incentive to respect human rights when such policies conflict with national interests. This can be seen most clearly by examining the treatment of refugees and other stateless people. Since the refugee has no state to secure their civil rights, the only rights they have to fall back on are human rights. In this way Arendt uses the refugee as a test case for examining human rights in isolation from civil rights.
Arendt’s analysis draws on the refugee upheavals in the first half of the 20th century along with her own experience as a refugee fleeing Nazi Germany. She argues that as state governments began to emphasize national identity as a prerequisite for full legal status, the number of minority resident aliens increased along with the number of stateless persons for whom no state was willing to legally recognize. The two potential solutions to the refugee problem, repatriation and naturalization, both proved incapable of solving the crisis. Repatriation failed to solve the refugee crisis because no government was willing to take them in and claim them as their own. When refugees were forcibly deported to neighboring countries such immigration was deemed illegal by the receiving country, and so failed to change the fundamental status of the migrants as stateless. Attempts at naturalizing and assimilating refugees also had little success. This was primarily due to resistance from both state governments and the majority of citizens, since both tended to see the refugees as undesirables who threatened their national identity. Resistance to naturalization also came from the refugees themselves who resisted assimilation and attempted to maintain their own ethnic and national identities. Moreover, Arendt contends that neither naturalization nor the tradition of asylum were capable of handling the sheer amount of refugees. Instead of accepting some refugees with legal status, the state often responded by denaturalizing minorities who shared national or ethnic ties with stateless refugees.
Arendt argues that the consistent mistreatment of refugees, most of whom were placed in internment camps, is evidence against the existence of human rights. If the notion of human rights as universal and inalienable is to be taken seriously, they must be realizable given the features of the modern liberal state. Arendt contends that they are not realizable because they are in tension with at least one feature of the liberal state, national sovereignty. One of the primary ways in which a nation exercises sovereignty is through control over national borders. State governments consistently grant their citizens free movement to traverse national borders. In contrast, the movement of refugees is often restricted in the name of national interests. This presents a dilemma for liberalism in that liberal theorists are typically committed to both human rights and the existence of sovereign nations.
Recently there has been a revival of interest in Arendt’s critique of human rights, in part due to the contemporary refugee crisis. Andy Lamey explores and analyzes the refugee crisis in his new book Frontier Justice: The Global Refugee Crisis and What To Do About it. He offers a potential solution to the tension between national sovereignty and human rights in the form of a rights based portable procedural model (PPM). This model differs from right to asylum models in two fundamental ways. First, unlike the right to asylum, which guarantees residence within the country being petitioned, the PPM focuses on the right to non-refoulement. Non-refoulement is the right not to be returned to a place of persecution and is the foundation for international refugee law, as outlined in the 1951 Convention Relating to the Status of Refugees.
By focusing on the right to non-refoulement the PPM has a distinctive advantage over asylum based models. It allows the transfer of refugees to third party countries with acceptable human rights records. In this way, a country experiencing a mass influx of refugees can disperse the burden. In contrast, mass influxes of refugees tend to overwhelm asylum based models, which often results in a long asylum determination process, further exasperating the situation by creating incentive for other refugees to file asylum claims.
The PPM seeks to guarantee the right to non-refoulement by enforcing three procedural rights at a constitutional level: the right to an oral hearing, the right to legal counsel, and the right to judicial review when facing detention. Both the right to an oral hearing and the right to legal counsel are meant to ensure that refugees have their claims properly investigated so that those with legitimate claims aren’t simply turned away. The right to judicial review when facing detention is another important safeguard for refugees who can sometimes find themselves held in prison-like conditions for considerable periods of time, as was the case in Australia until 2007.
Whereas the move from asylum to non-refoulement grants the sovereign nation more options when dealing with a refugee crisis, enforcing procedural rights at constitutional level is meant to restrict the legislature from passing laws that trample over the interests of refugees. In this way the portable-procedural model reduces tension between the interests of sovereign nations and the interests of refugees. Although refugees under the PPM do not possess all of the legal rights of a citizen, the securing of procedural rights would be a significant improvement for refugees, while bringing us closer to universal human rights.

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