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Hannah Arendt and “the Right to Have Rights”

Chapter · January 2005

DOI: 10.1057/9781403981509_5

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Cotter, B, (2005) "Hannah Arendt and 'The Right to Have Rights'", Lang, Jr., A.F. & Williams, J, Hannah Arendt and international relations,
95-112, Palgrave Macmillan ©

CH AP T E R 5
H AN NA H A R E ND T AND
“THE RIGHT TO HAVE RIGHTS”

Bridget Cotter

The importance of the issue of human rights has increased greatly in

international relations since the end of the Cold War, and refugees
have often been at the center of debate, concern, and action. The
response to perceived refugee crises is indicative of important
elements of these wider debates about human rights and their place in
an international system that remains based around the sovereign state.
Indeed, in places such as Bosnia and Kosovo the creation of large
numbers of refugees through the forced expulsion of populations has
proved a catalyst for and focus of diplomatic and military action by
coalitions of states. However, while willing to express their condem-
nation for policies that create refugees, the political debate in many
states, including those Western states ostensibly most closely linked to
the ideal of human rights, has highlighted contradictions, conflicts,
and tensions.
Hannah Arendt’s writings on refugees and statelessness have often
been neglected by Arendt scholars and are largely unknown to the
world of contemporary literature on refugees. As with most subjects
that she addressed, her main value and usefulness as a theorist lies in
her ability to expose with adeptness and clarity the contradictions and
tensions within and among the principles and practices of Western
modernity. She was less focused on proposing solutions. Instead, she
tended to issue warnings against neglect and to encourage vigilance of
protective political institutions. Such vigilance was a key characteristic
of the active citizenship that Arendt so admired. Today, when the
96 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 97

question of refugees and asylum are hot topics on all Western political inalienable, and universal. And yet all over the world, they can only
agendas, political analysts are expected to come up with precise’ be enforced within states that agree to enforce them, and usually only
solutions. However, despite Arendt’s failure to do so, her work is still for citizen-members. The rights of citizens are exclusive and condi-
relevant in helping us to understand the experience of the refugees tional since they only apply to those who legally belong to a nation-
and the challenges they pose to modern democratic states. As a former state. If the rights of man truly existed, says Arendt, they would be
refugee herself, Arendt was able to evoke with painful clarity a picture available to everyone without conditions by virtue of membership in
of the peculiar existential and physical sufferings of the refugee. As a the human race.3
political theorist, her analysis exposes the contradictions and tensions A third definitional issue concerns “national sovereignty.” For
within the liberal democratic project that are thrown into stark relief Arendt, this refers to two separate principles, although she does not
by the existence of refugees. always clearly distinguish between them. First, it is “state sovereignty”
For Arendt, refugees were the “most symptomatic group in which is located in the global state system, with its origins in the
contemporary politics.”1 While totalitarian regimes have done the Treaty of Westphalia, in which each state has absolute jurisdiction
most to produce the uprootedness and misery of the refugee, in within its own borders and only within them. Second, “national
Arendt’s opinion, the existence of refugees also exposes several sovereignty” also refers to “people’s sovereignty,” which consists in
conflicts and contradictions of the European liberal democratic the democratic right of a citizenry to self-determination. These may
nation-state. The primary conflict is between the liberal democratic appear to be the same in the normal running of the liberal democratic
commitment to universal individual rights, on the one hand, and state. However, they are separable since a state can be sovereign but
the claim of the liberal democratic state to national sovereignty, on the not democratic. In addition, there are several important ways in which
other. National sovereignty has negative consequences for the rights people’s sovereignty is thwarted by state sovereignty, for example, in
of man, and, for a number of reasons, the situation of refugees is issues related to national security. For Arendt, both have negative
symbolic of these consequences. Thus, Arendt’s work on refugees and consequences for the full realization of the rights of man.
statelessness identifies both philosophical and practical problems that State sovereignty has two such consequences, both of which are
lie at the heart of liberal democratic theory and practice. It is through made obvious by the existence of refugees. First, the rights of man
the experience of those who lack rights, whose social and legal status cannot be enforced outside the state. As Edmund Burke argued
is marginal or nonexistent, that we can see the contradictions and after the French Revolution, the rights of man are mere “abstract
failures of current thought and practice. principles” which de facto do not exist. Burke’s preference for the
We can begin with some definitions. For Arendt, a refugee is some- “Rights of Englishmen” established the exclusive rights of nationals as
one who has been expelled from his country and who has thereby nationals rather than the universal rights of man as man or as citizen
been deprived of citizen’s rights. While most clear-cut in the case of in general because without legal membership in a state, individuals
those ordered from their state by their government, it is also necessary have nothing to protect their rights.4 Even French republicanism with
to include those who have been “constructively expelled” by the its proclaimed commitment to cosmopolitanism and universal citizen-
pursuit of policies or the creation of a political climate that makes it ship could not guarantee the universal rights of man. The French
impossible to enjoy the normal rights of citizenship and that engen- Declaration of the Rights of Men and Citizens could really only
ders a fear of persecution. For Arendt, there was no useful distinction guarantee the rights of men who were citizens. So, says Arendt, the
between refugees and stateless persons because, while refugees may guiding principle of the nation-state is not that everyone is born with
not be de jure stateless, they were de facto stateless.2 inalienable rights, but that “every individual is born with inalienable
Arendt also points to two defining and conflicting features of the rights guaranteed by his nationality.”5
rights of man. First, they were established during the American and The conflict between state sovereignty and individual rights was
French Revolutions, which means that, while an idea of natural exposed by the post–World War I emergence of refugees in large
universal rights is much older, they were only practically realized in numbers, a trend that has recurred and accelerated in the wake of
the context of two struggles that were national in character. Second, almost every major conflict since. The rights of man were “defined as
and in spite of this, they were declared and are still seen as natural, ‘inalienable’ because they were supposed to be independent of all
98 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 99

governments; but it turned out that the moment human beings lacked While the “international community,” since the 1950s, objects on
their own government and had to fall back upon their minimum moral grounds to the state’s denial of rights to its own citizens and
rights, no authority was left to protect them and no institution was enshrines such objections in its guidelines and declarations, on only a
willing to guarantee them.”6 The refugees from Nazism found this handful of occasions—even since Arendt died—has it seen fit to
out when, expelled from their homelands, they were only reluctantly recognize these guidelines as laws that should be enforced, by,
accepted by other states, and then only temporarily, or not accepted at for example, trying war criminals. The current case of Milošević is
all. Their terrible plight proved that rights were, indeed, alienable instructive in that he argues (as did many of those who objected to
from the person, so that the phrase “human rights” came to represent military intervention against Yugoslavia in Kosovo) that no state had
either “hopeless idealism or . . . feeble-minded hypocrisy.”7 the right to intervene in the affairs of Yugoslavia because the Kosovan
In classical liberal thought, civil laws are supposed to rest on the nat- conflict was a civil war, not an invasion by a foreign country. This
ural laws and rights, but, in fact, the rights of man—which were seen argument continues to hold water with many.
by classical liberal theorists as natural rights—are dependent on civil In Europe, there is a history of putting this right of exclusion into
law, says Arendt. While the duty to obey civil law is imposed on non- practice, in spite of a professed commitment to individual rights.
citizens, they can still be actively excluded from the rights and protec- Arendt notes several examples from before World War II. Germany,
tions that the state affords its citizens. That the rights of man are only for example, began a raft of denationalizing measures in 1933 with
safe within a state is proven by the fact that to become a refugee is to one that gave the state the right to denationalize any nationals living
become a charity case. “Neither physical safety . . . nor freedom of abroad (which later became automatic for Jews, including those
opinion changes their fundamental situation of rightlessness. The forcibly transported to Poland). In this, they followed Russia’s 1921
prolongation of their lives is due to charity and not to right, for no law measures to denationalize defectors. In the interwar years, most
exists which could force the nations to feed them; their freedom of European countries passed laws that would allow them to get rid of
movement, if they have it at all, gives them no right to residence which sections of the population—even if they did not use the laws.11 Many
even jailed criminals enjoy as a matter of course; and their freedom of of these were wartime measures, such as a French statute in 1915 that
opinion is a fool’s freedom, for nothing they think matters anyhow.”8 allowed the government to deport “naturalized citizens of enemy
The second negative consequence of state sovereignty stems from origin who retained their original nationality,” and a Portuguese decree
the state’s right to restrict membership. This effectively means that in 1916 that “automatically denaturalised all persons born of a German
states have the right to deny citizenship (and all rights that accompany it) father.” Others gave the state the right to cancel the “naturalization of
to any individual or category of people and to turn away the refugees persons who had committed anti-national acts during the war”
of other states. Regardless of whether the right to exclude is a right in (Belgium in 1922 and 1934) and “persons not worthy of Italian citi-
state law, international law, or no law at all, and regardless of whether zenship” (1926).12 In the postwar years, Arendt states that the United
states choose to exercise it (as the Nazis did in the 1930s and 1940s, States was even considering depriving of citizenship those U.S.-born
Idi Amin’s Uganda did in the 1970s and the Serbs and Croats did in Americans who were communists.13
the 1990s), this state’s right is implied by the principle of national sov- After World War II, the European Convention on Human Rights
ereignty. Arendt refers to this right to restrict membership as “the sov- (1949) and the Geneva Convention of 1951 have both attempted to
ereign right of expulsion.”9 “Theoretically, in the sphere enshrine protection for those refugees fleeing persecution and
of international law, it had always been true,” Arendt states “that seeking asylum, suggesting the centrality of the plight of refugees to
sovereignty is nowhere more absolute than in matters of ‘emigration, the human rights project. Since the end of the Cold War even
naturalization, nationality, and expulsion’. . .”10 The fact that the state greater attention and weight have been given to the principle
has the right to exclude people from rights is at odds with the univer- and enforcement of human rights. Despite measures such as the
salism and inalienability of the rights of man upon which the liberal International Criminal Court, and war crimes tribunals (following
democratic state and its laws are founded. The difficulty that refugees conflicts in Yugoslavia and Rwanda), there are, however, still coun-
have in claiming their rights demonstrates this contradiction between tries willing to use their sovereign right to expel and persecute their
state sovereignty and human rights. citizens.
100 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 101

Serious human rights abuses aside, it must also be remembered that self-government because the source of government was the people of
even democracies restrict and erode citizen’s civil rights (which are a particular territory, not individually and generally but collectively
based on the idea of human rights) on the grounds of national and specifically.17
security. Under the rule of national sovereignty, they have a perfect So, almost from the moment of their establishment, the rights of
right to do so. In the post-9/11 world, Western states are also increas- man became entangled with the right of the people to self-determination.
ingly exercising their right to exclude, in the name of national security, Within the classical liberal argument, each has a sovereign right to rule
and are continuing to privilege state sovereignty and security over himself, but because all are equal, all have this right. In a collective
human rights. context, this means that all have the right to share power. As Rousseau
All of this shows that, in practice, the rights of man are neither asserts, since no individual could have sovereignty over another, indi-
inalienable nor universal and that the principle of state sovereignty can viduals must share in government by pooling their sovereignty to
be used to deny individual rights and to produce refugees. The full avoid any one man dominating. Because of this social feature of indi-
realization of human rights is not possible both because of and in spite vidual lives, “The whole question of human rights . . . was quickly and
of state sovereignty. The relationship between state rights and human inextricably blended with the question of national emancipation
rights is simultaneously one of conflict and of dependence (of the [because] only the emancipated sovereignty . . . of one’s own people,
latter on the former), and refugees are the manifestation of this seemed to be able to ensure them.”18
conflict-ridden, but dependent, relationship. This meant that, philosophically speaking, “man had hardly
While it is not surprising that the interests of the state come into appeared as a completely emancipated, completely isolated being who
conflict with those of the individual, it is perhaps more perplexing that carried his dignity within himself without reference to some larger
the democratic principle of people’s sovereignty should also interfere encompassing order, when he disappeared again into a member of a
with the rights of man, since together they form the basis of liberal people.”19 Thus, in the nation-state system, it was man as a member
democratic principles. However, Arendt notes that they do conflict in of “the people” and not individual man upon whom rights were
two important ways. First, the sovereignty of the people conflicts with based. “The same essential rights were at once claimed as the inalien-
the sovereignty of the individual. Both principles were declared by the able heritage of all human beings and as the specific heritage of
French revolution, but the sovereignty of the people won out. specific nations, the same nation was at once declared to be subject to
The main reason for this, says Arendt, was that the principle of laws, which would supposedly flow from the Rights of Man, and sov-
“sovereignty of the individual” was based upon an abstract individual. ereign, that is, bound by no universal law and acknowledging nothing
The French Declaration of the Rights of Men and Citizens marked a superior to itself.”20 This meant that “from then on human rights’
turning point in history because it deemed man rather than God’s were protected and enforced only as national rights and that the very
command or the hierarchies of historical custom to be the source of institution of a state, whose supreme task was to protect and guaran-
human law.14 “Man himself was their [the rights of man’s] source as tee man his rights as man, as citizen and as national, lost its legal,
well as their ultimate goal.”15 Because they were seen as “inalienable,” rational appearance . . .”21 The state became an instrument of “the
no higher authority was needed. But because no authority above man nation” rather than a protector of the individual. This fact only really
himself was invoked the entire human rights project is predicated on became clear when masses of people appeared right in the middle of
the liberal notion of an abstract natural individual who does not really Europe as refugees from Nazism who could not be protected by the
exist, “for even savages live in some kind of social order.”16 state because they did not belong to “the people” of the state.
People’s sovereignty was also proclaimed in the name of man Membership of a people was then the prerequisite for rights, and a
(rather than God or tradition), so it was, in theory, reducible to man’s “people” in Europe had to be a nation with a territorial state and
individual sovereignty. All civil laws were supposed to rest on the some notion of shared origins. This enabled, then and now, the
rights of man, making man in the abstract and man in general the portrayal of refugees as a threat to national identity, to seek their
“sovereign in matters of law.” However, after the French Revolution, exclusion on the grounds of difference and, where refugees had to be
it became clear that the so-called inalienable rights of men could only accepted, to make assimilation the standard for successfully dealing
find their guarantee in the collective rights of the people to sovereign with the “problem.”
102 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 103

The conflict between people’s sovereignty and individual rights A possible solution to the problems arising from conflicts among
posed further problems for individual rights because of a second the sovereignty of the people, the state, and the individual was a better
conflict between the state and the nation. The people had to become international agreement. Arendt argues that the refugee’s problems are
a sovereign nation in order to protect itself from a potentially tyranni- exacerbated (or at least not alleviated) by the current international
cal state. This meant that the will of the people took precedence over system whose principle is state sovereignty. Unlike most of her
both the state and the individual. These developments would come to contemporaries, Hans Morgenthau included, Arendt did not see
have a huge impact on members of minority groups within the state the international situation as akin to a Hobbesian state of nature,
whose lack of belonging to the people of the nation threw their although it was often characterized by power politics. Instead,
citizenship into doubt. In this way, ethnicity quickly became a prereq- she argued that the mere existence of reasonably secure states is
uisite for full citizenship, giving minorities a marginal status, which evidence of some kind of loose agreement and sense of solidarity
was much easier to transform into “no status” at a later date. among states. It is this mutual agreement and solidarity that prevents
Arendt writes at length on the problem of minorities. Her discus- states from imposing refugees on each other most of the time. For, if a
sion is based on the historical case of the 1919 Minorities Treaties, but state were to exercise its sovereign right to expel, it would be imping-
many of her observations are still relevant today. The 1919 Peace ing upon another state’s sovereignty by trying to force it to take new
Treaties established new nation-states in Central Europe to replace residents. However, where a state’s dominant “people” either abandon
the fallen Austro-Hungarian Empire. The arbiters of Peace wanted to this sense of shared norms or come to see the presence of a minority as
maintain the nation-state format, so they tried to draw the new terri- a fundamental threat to its political project and expel them, then the
torial boundaries along ethnic lines. But they did not pay enough refugees’ lot is made even worse by the unwillingness of other states to
attention to the existing demographic map. They lumped together pay what can be perceived as the cost of the originating state’s refusal
people from several nationalities in a single state, then dubbed some to accept its obligations.
“ ‘state people’ and entrusted them with the government, silently This argument hints at the way that Arendt does recognize that the
[assuming] that others . . . were equal partners in government, . . . principle of state sovereignty contains a self-limiting mechanism.
and with equal arbitrariness created out of the remnant a third She argues that there exists a basic paradox in the principle of state
group of nationalities call ‘minorities’. . .”22 for example, in sovereignty. The latter relies on the agreement of an international
Czechoslovakia, the Czechs were the state power, the Slovaks were community, which both protects and constrains sovereignty. The mass
wrongly seen as the equal partners, while Sudeten Germans were an deportation and denationalizations of various European groups
official minority. Special regulations were invented to protect these (Russians, Armenians, Hungarians, Germans, and Spaniards) during
official minorities. the 1920s and 1930s revealed “what had been hidden throughout the
For Arendt, this case demonstrated three existing assumptions history of national sovereignty, that sovereignties of neighbouring
about nation-states within Europe. First, they should be ethnically countries” could come into conflict in times of peace as well as in war.
homogenous; second, there should be a perfect match between “It now became clear that full national sovereignty was possible only
nationality and territory; third, popular sovereignty can only be as long as the comity of European nations existed; for it was this
attained within one’s own state. All of these assumptions have led to a spirit of unorganised solidarity and agreement that prevented any gov-
situation in which minorities are in a sense stateless because the state ernment’s exercise of its full sovereign power.”23
belongs to “the people.” This makes minorities easier to make into Without cooperation and mutual respect, states would have no
stateless refugees. If the members of an ethnic minority became fully lasting security whatsoever. Simply declaring a state as sovereign
assimilated and completely divorced from their origins, it may have and monopolizing violence within borders to protect it, does not
been an easier matter to include them in the nation and apply state alone prevent the risk of invasion. It is international cooperation and
laws to them, but before that point, a law of exception was needed to recognition that turns a theoretical state sovereignty into a reality. For
protect them. In any case, assimilation meant nothing to purists who what else really prevents one state from invading another if not at
believed nationality to be a natural and objective quality that could least a tacit agreement not to invade? Once states are matched in
not be altered. physical might, fear of losing cannot function as the only deterrent.
104 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 105

So, agreements make state sovereignty possible. But at the same time, In addition, both are principles designed for individual exceptions, to
agreements make the exercise of full sovereignty—“in matters of allow states to apply the law of nationals to all its residents. But in an
nationality and expulsion”24—less likely. In the “European comity of age of mass refugee movements, states are unwilling and unable to
nations” before totalitarianism, “practical consideration and the cope with numbers too large to be called exceptions.
silent acknowledgement of common interests [had always] restrained For Arendt, the right of asylum was “the only right that ever
national sovereignty.”25 In the same way that the liberal state both figured as a symbol of the Rights of Man in the sphere of international
limits and guarantees individual sovereignty, so do international relations.” And just as the rights of man conflict with state sover-
agreements both limit and guarantee state sovereignty. eignty, the right of asylum is “in conflict with the international rights
But these limits on state sovereignty stem from fear and respect and of the state.”28 In addition, the old asylum system, which had a history
rely upon the continued commitment to mutual inviolability. Thus, as reaching back to the ancient city-states, worked for individual
Arendt points out, the more totalitarian a state, the more willing it refugees who could be absorbed (and perhaps assimilated) into the
was to exercise its “sovereign right of denationalisation.”26 Because body of the nation-state. Since ancient times, Arendt notes, the right
the sovereign right to expel can only be used if a government ceases to of asylum functioned as protection both for refugees and the coun-
respect the sovereignty of other states, the implication of this tries of refuge. It gave a status to the persecuted noncitizen who
argument is that the exercise of full sovereignty in matters of exclusion would otherwise be an outlaw, protecting the country of refuge
is at the same time a denigration of the principle of sovereignty from lawlessness and persons desperate enough to resort to crime. But
because it impinges on the sovereignty of other states. the Peace Treaties of World War I, which created masses of refugees
Arendt thus identifies four main weaknesses of the international and stateless persons, began to lead to the erosion of the right of
system that prevent the solution of the refugee problem. First, as asylum.
we’ve already seen, the system is unable or reluctant to enforce human In the contemporary world, a fear of large-scale “economic
rights because of the principle of state sovereignty. Second, the migration” and a perception that the asylum system is being
modern refugee’s displacement is made more permanent and insur- “abused” by those searching for a materially more comfortable life,
mountable by the comprehensiveness of the nation-state system; there rather than fleeing persecution, exercises most of the governments
is no legal status left for the stateless person because there is nowhere of the industrialized world. Asylum and immigration are in danger
of becoming further confused, with defense of the state’s sovereign
else to go. The “new global political situation” in which we live in
power to control immigration issues overtaking its obligation under
“One World,” says Arendt, means that it is possible for millions of
international law and custom to offer even minimal protection to
people to lose and not be able to regain the “right to belong to some
refugees. Since 9/11, antiterrorism laws have intersected with asy-
kind of organized community . . .”27 Becoming a stateless refugee lum laws. The popular press in Western countries such as the United
means that the loss of the protection of one’s own government leads Kingdom frequently equate refugees with crime or terrorism.
to the loss of legal status in all countries. “Treaties of reciprocity and Governments do little to dispel such impressions by repeatedly
international agreements have woven a web around the earth that assuring the public that they are doing their best to control the
makes it possible for the citizen of every country to take his legal asylum problem.
status with him no matter where he goes . . .” By the same token, the
For Arendt, the importance of state sovereignty made the right of
stateless person carries her political non-status with her wherever she
goes. Because there is no longer a “no-man’s land” into which a asylum problematic for states from the outset because state sover-
group or individual can escape, refugees cannot just go elsewhere and eignty is meant to apply to nationals even when they are outside their
set up a new community. Only a state can provide the basic needs of a states (for example the United States extends the duty to pay income
home and protection from harm, and without a state the refugee finds tax even to citizens living and working abroad). Strictly speaking then,
himself excluded from the family of nations altogether. it is an infringement on state sovereignty to give asylum to the citizen
Third, the traditional solutions for the second problem have been of another state. Under exceptional circumstances this was not such a
naturalization and the right of asylum, but—again, because of the problem. The right of asylum was also meant only for political
principle of state sovereignty—states cannot be forced to use these. refugees whose situation was seen as highly exceptional. It was meant
106 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 107

to offer solace to individuals persecuted for political views and actions and the Roma in all ages. Arendt argues that the Nazis were so con-
(the same criteria that would later be enshrined in the Geneva vinced of this principle that they used it as a strategy to spread anti-
Conventions), not for vast numbers of people who were persecuted Semitism across Europe. Arendt quotes a Nazi source who in 1938
for reasons that had nothing to do with their own actions and stated that, “if the world was not yet convinced that the Jews were the
opinions, but stemmed simply from their being Jewish, or Albanian or scum of the earth, it soon would be when unidentifiable beggars,
Roma or Tutsi.29 without nationality, without money, and without passports crossed
Arendt points out that the erosion of the right to asylum was their frontiers.”36
further proven by the fact that, although it still existed as an ideal in Fourth, there is no supranational law—only inter-state laws and
the spirit of liberal democracy, it was not enshrined in the laws of any treaties and guidelines. The UN’s Universal Declaration of Human
particular state, or in any international law as part of the post–World Rights (1948) was supposed to change the fact that only the state
War I settlement. Even the Covenant of the League of Nations did could guarantee and protect rights. Its creation represented a recog-
not include it as a responsibility of member states. Because state nition that not all states could be trusted to recognize and guarantee
sovereignty was the dominant principle in international relations, the rights to life and freedom from coercion of their inhabitants. The
it remained the state’s right to refuse entry and solace to foreigners.30 UN’s Charter also makes mention of the organization’s commitment
The so-called right of asylum, therefore, carried an informal, nonlegal to human rights, in articles 55 and 56 in particular. But even in
status. Arendt points out that it shared this fate in common with Arendt’s time, as she argues, no one took the Rights of Man seriously.
“the Rights of Man, which also never became law but led a somewhat Although outlined in the Universal Declaration of Human Rights,
shadowy existence as an appeal in individual exceptional cases for they did not constitute law. While Charter articles have greater force
which normal legal institutions did not suffice.”31 in this regard, these were left to languish in terms of attracting the
While the 1951 Geneva Conventions did establish a legal basis for concerted attention of an organization, and a membership, focused
asylum, the difficulty of naturalizing, assimilating, or repatriating upon the twin issues of decolonization and the cold war. Rather, they
refugees combined with the comprehensiveness of the nation-state were guidelines upon which the civil laws of states are meant to rest.
system has led governments to find or construct places with a peculiarly This is because the Rights of Man “had never been philosophically
“in-between” status, neither wholly in one state or another. These established but merely formulated, . . . never . . . politically secured
include refugee reception centers and waiting areas, asylum-seekers’ but merely proclaimed. . . .” As such, they “have, in their traditional
detention centers, and the back rooms of immigration offices in air- form, lost all validity.”37
ports. The most extreme recent case of this attempt by a state to avoid The strategic context of the Cold War, where the too active pursuit
the responsibility of reception and later repatriation32 is the Australian of human rights by those states ostensibly predicated upon them could
government’s internment camp for asylum seekers on the island of have led to World War III, doubtless carries some of the burden here,
Naaru. Arendt points out that because refugees could not be assimi- but Arendt’s point retains much of its force. Even in post-Cold War
lated and the states didn’t want them, “the only practical solution for circumstances such as Rwanda, with no overwhelming geostrategic
a non-existent homeland was an internment camp,”33 and from the risks present, it appeared that the rhetoric of the rights of man was
World War II they became “the routine solution for the problem of useless in the face of genocide. Indeed, Rwanda arguably demon-
domicile of the ‘displaced persons.’ ”34 strated the weakness of international legal efforts to make meaningful,
Arendt noted that a group made systematically “undesirable” in via legal institutionalization, notions of rights. The Genocide Convention
one country were more likely to be undesirable everywhere because is perhaps uniquely clear in establishing an obligation upon states to
of their impoverishment and lack of political status. “Once they had take action, an obligation the U.S. government sought to avoid by
left their homeland they remained homeless, once they had left their banning its officials from using the word “genocide” to describe
state they became stateless; once they had been deprived of events in Rwanda.
their human rights they were rightless, the scum of the earth . . .”35 However, there was also a problem with the way human rights
This is particularly the case if the minority is a majority in no state, like were formulated. Arendt argued that all attempts so far to define the
Jews and Armenians in the 1940s, the Kurds and Palestinians now, universal rights of man have only succeeded in reiterating the legal
108 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 109

rights of citizens. For Arendt, human rights are only those that cannot for humanity as a whole it would be better to liquidate certain parts
be protected by the state. The right of asylum is such a right, but, as thereof.”41
we have seen, it is ineffective because it only applies to exceptional The only possible solution, then, is a new international agreement
cases and because it (like all other human rights) relies on govern- to create a supranational law. Agreements are only possible and,
ments (who receive refugees) for its enforcement. Arendt’s solution to indeed, only necessary because of the human condition of plurality.
the problem of statelessness was to create a supranational law Arendt concludes: “The concept of human rights can again be mean-
that would only consist of one human right: the right to belong to a ingful only if they are redefined as a right to the human condition
political community. “We became aware of the existence of a right to itself, which depends upon belonging to some human community, the
have rights . . . and a right to belong to some kind of organized right never to be dependent upon some inborn human dignity which
community, only when millions of people emerged who had lost and de facto, aside from its guarantee by fellow-men . . . does not
could not regain these rights . . .”38 exist . . .”42 Such an agreement was absolutely essential in order to
With the loss of a divine law, there was no higher moral law upon prevent the loss of the right to have rights. For, the contradiction
which to base rights. So, on what philosophical foundation can we within the formulation of human rights and the difficulties of
base the rights of man? Arendt rejects both pragmatic and utilitarian enforcement meant that being a refugee constitutes an expulsion from
solutions. As we saw earlier, eighteenth-century liberal rights were humanity. Stateless refugees retain both life and even liberty in theory,
based on the “ ‘nature’ of man,” whether this came from natural but without a political context, they have no rights to these or any
law or divine command.39 Natural rights would then exist even if other aspects of the human condition. Whether or not they belong to
there were only one man, and are therefore “independent of human a particular community is no longer a choice for them. They are
plurality.” However, in the twentieth century, nature was replaced by deprived of the right to contribute anything to the world in any way.
the idea of “humanity.” The concept of mankind existed in the The “right to have rights . . . means to live in a framework where one
eighteenth-century notion of natural rights, but it “was no more than is judged by one’s actions and opinions.”43 A refugee by contrast is
a regulative idea.” Due to modern travel and communication judged by his status within the laws of the receiving country—to be an
technologies, increased global economic interdependence, and the “illegal alien,” an “economic migrant,” a “bogus asylum-seeker” or,
possibility of mass destruction through nuclear weapons, the concept if lucky, a “genuine” refugee.
of mankind has now become a reality. So, humanity is now the basis By contrast, the concept of man upon which human rights have
on which to guarantee human rights, Arendt argues, but there is still been based is man stripped of all worldly attributes; it is man in
no law of humanity. There is only inter-state law, a collection of abstract nakedness. No one would want to be such a man as he repre-
“reciprocal agreements and treaties between sovereign states”. A sents a state of utter vulnerability.44 To be stripped of citizenship is to
“sphere that is above nations does not exist.”40 be stripped of worldliness; it is like returning to a wilderness as cave-
Neither would a world government solve the insurmountable men or savages. “[A] man who is nothing but a man has lost the very
problem of finding a universal moral law on which to base human qualities which make it possible for other people to treat him as a
rights. Like the Nazi government, a world government could also fellow-man.”45 Rightless people are “thrown back into a peculiar
define what is right by what is good for “the people”—even if state of nature.” It is peculiar because they are civilized, often well-
“the people” now meant the whole of humanity. Once we lost our educated people, but they have lost “all those parts of the world and
absolutes, our standards that transcend us, we lost all authority. all those aspects of human existence which are the result of our
After that—as we saw in the nineteenth-century ideas, including common labor . . . ,” the outcome of the human artifice. They could
utilitarianism—it became “inevitable that we would believe that what “live and die without leaving any trace, without having contributed
is ‘right’ is the same as what is ‘good for’—good for the individual, for anything to a common world. . . .”46
the family, or the people, or the largest number.” Even “if the unit to Arendt describes what she and other refugees of Nazi Germany had
which the ‘good for’ applies is as large as mankind itself . . . it is quite lost by being forced to leave their homes: “We lost our home, which
conceivable [and practically possible], that one fine day a highly organ- means the familiarity of daily life. We lost our occupation, which
ized and mechanized humanity will conclude quite democratically that means the confidence that we are of some use in the world. We lost
110 B RI DG ET C OTTER A RENDT AND “T HE R IGHT TO H AVE R IGHTS ” 111

our language, which means the naturalness of reactions, the simplicity agreement, suggesting a new supranational law and international
of gestures, the unaffected expression of our feelings. We left our court, springing from a loose, federated international system. But
relatives in the Polish ghettos and our best friends have been killed in she does not discuss these in detail. Nor does she discuss in any depth
concentration camps, and that means the rupture of our private the impact of inequalities among states. Indeed, this last omission
lives.”47 The loss of a private place in the world, of their elementary points to a weakness in her thinking. For, just as individual citizens of
usefulness to society, of their ability to participate in speech (and thus a state need to come to the political sphere as equals, surely states
politics) came about through the loss of the right to belong to the constructing supranational agreements must do the same.
place and community in which they had lived and, with it, their “right But the part of her argument that endures is this. First, refugees are
to have rights.” With the loss of citizenship, one becomes a “human the anomalies in the current political paradigm and, as such, they
being in general” with no home, no occupation, no ability to have an challenge the effectiveness of current political thought and practice.
impact on the world through speech and action.48 Those who are Second, we need to recognize that rights are conventions, the product
fundamentally rightless are deprived “of a place in the world which of collective agreements, and, thus, part of the human artifice. That
makes opinions significant and actions effective.”49 “Only with a rights rely on human agreement and not on natural rights indicates
completely organized humanity could the loss of home and political the inherent fragility of all rights and of any product of human
status become identical with expulsion from humanity altogether.”50 agreement; it also indicates the grave responsibility we all have to
Thus, without citizenship one loses fundamental characteristics of establish and maintain such an agreement. Finally, Arendt leaves us
the human condition: “the relevance of speech . . . and the loss of all with a question whose relevance is increasing in recent years: is
human relationships.”51 Since Aristotle, these are seen as fundamental there such a thing as a right to belong? And if so, should we have a
to human existence. Even a tyrant has difficulty taking away this social choice of where we belong and to what?
context. The only way to remove the conditions of human existence
from living people is through expulsion from a political community— NOTES
either through slavery where one is not considered human, or
1. Arendt, The Origins of Totalitarianism (London: Andre Deutsch,
through exile. But even slaves are allowed to contribute something to
1986), 277. Hereafter referred to as OT.
the world through labour and to have a place in society (though not 2. Ibid., 281. Arendt quotes Simpson approvingly, “all refugees are for
in politics). “Not the loss of specific rights then, but the right of a practical purposes stateless.” (ibid., 281, n. 28.).
community willing and able to guarantee any rights whatsoever . . .” 3. Ibid., 288, n. 44a.
is what the stateless have lost. “Man, it turns out, can lose all so-called 4. Ibid., 175.
Rights of Man without losing his essential quality as man, his human 5. Ibid., 288, n. 44a.
dignity. Only the loss of a polity itself expels him from humanity.”52 6. Ibid., 292.
Attempts such as the Universal Declaration of Human Rights 7. Ibid., 269.
8. Ibid., 296.
merely reiterated citizens’ rights, which should, according to Arendt
9. Ibid., 283.
be properly defended by the state or “defended by citizens, organized
10. Arendt quotes Lawrence Preuss (1937), in OT, 278.
in nations or in parties.”53 This is because rights only have meaning 11. Ibid., 278–279.
within a social context. As Arendt points out, refugees do not
12. Ibid., 279, n. 25.
necessarily lose their right to free speech or association; they lose the 13. Ibid., 280.
context in which these things have meaning. Therefore, Arendt 14. Ibid., 290.
declares: “The only human right is the right to citizenship,” that is, 15. Ibid., 291.
the right to belong legally to a state and have one’s human status (and 16. OT2, 291.
all that that implies) be guaranteed by its laws. 17. Ibid.
Arendt does not solve the many problems she raises. She does not 18. Ibid.
deal with how to ensure that states obey the supranational law. 19. Ibid.
Instead, she settles for a nod toward a concerted international 20. Ibid., 230 (emphasis in original).
 112 B RI DG ET C OTTER

21. Ibid., 230–231.

22. Ibid., 270.
23. Ibid., 278.
24. Ibid., 286.
25. Ibid., 278.
26. OT2, 278.
27. Ibid., 297.
28. Ibid., 280.
29. Ibid., 281, n. 27.
30. Ibid., 280.
31. Ibid., 280–281.
32. In some cases repatriation cannot be effected because asylum seekers
have no passports and refuse to say where they are from.
33. OT, 1986, 284.
34. Ibid., 279.
35. Ibid., 267.
36. Ibid., 269.
37. OT3, 145.
38. Ibid., 295–296.
39. OT, 297.
40. Ibid., 298.
41. Ibid., 299.
42. Arendt, The Burden of Our Times, the first British edition of OT, 436.
43. Ibid., 296–297.
44. Ibid., 299.
45. Ibid., 300.
46. Ibid.
47. Arendt, “We Refugees,” The Menorah Journal, XXXI (January 1943): 69.
48. OT, 1986, 302.
49. OT2, 297.
50. Ibid., 297.
51. Ibid.
52. OT, 1986, 302.
53. Arendt, The Burden of Our Times, 436.

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