Oliver Biggs 10/05/2013

To What Degree has the tension between Human Rights

and claims to State Sovereignty been resolved in the contemporary World?

In this essay I will seek to explore the degree to which the tension between the universalism
of human rights - which seek to ground rights in the individual, irrespective of legal status or
membership in a particular political community - and State Sovereignty - with its power to
draw both physical and legal boundaries and to include and exclude at the site of these
boundaries - have been resolved in the contemporary world. In seeking to address this
question I will take the following steps:

1. I will discuss Hannah Arendt's highlighting of the way in which the 'natural' rights of man
become unenforceable when man is no longer part of a political community. I will then
explore the way in which she sought to reframe human rights with the term 'the right to have
rights', essentially the right to citizenship, of belonging to a political community. I will argue
that in reframing human rights in this way, she highlighted a new tension, that between human
rights and state sovereignty.
2. I will explore the thoughts of a number of cosmopolitan thinkers. These thinkers have
argued that the development of international human rights institutions and norms, in
combination with the challenges that globalisation have fought to national sovereignty, have
begun to denationalised citizenship, breaking the state monopoly with regards to addressing
the claims of de-nationalised, stateless and persecuted people.
3. Having considered these 'cosmopolitan' claims, I will argue that international human rights
law is still built around a structure in which the equality of sovereign nation states continues
to be paramount and therefore that the state remains the primary level at which rights are
secured. I will then briefly discuss the ability of powerful nation-states to shape the discourse
of human rights to reflect their own interests, before looking at how the human rights regime
reinforces state sovereignty with regards to the issue of illegal immigration. I will argue that
the ability of states to include and exclude has not been effectively restricted by human rights
but increasingly takes place not only at but within the territorial boundaries of the State.
4. I will explore the way in which human rights can push and pull in different directions in
relation to sovereignty and provide an example of the way in which the claiming of rights that
have yet to be institutionalised can be used by non-citizens to challenge the identities of
'included' and 'excluded' as well as State sovereignty itself.
5. I will conclude by arguing that despite developments at the trans-national level and the
establishment of global human rights 'norms' the tension between Human rights and State
Sovereignty that Hannah Arendt highlighted remain to this day; Human rights law can be
used both to challenge and reinforce the power of state sovereignty, it can also be ignored by
sovereign states and it can itself also be shaped by the interests of nation states.

In the Origins of Totalitarianism Hannah Arendt exposed a quandary within human rights
whereby the supposedly natural rights of man, abstracted from membership of any political
community become seemingly unenforceable. (Gundogdu, 2011) Arendt argues that it is at the
point when people most need their supposedly inalienable rights - when they are stateless,
when theyve lost "all other qualities and specific relationships" (Arendt, 1951, p.380) and
have fallen back on their 'bare' humanity -that they are unable to claim these rights. Arendt's
concept of the 'right to have rights', the right never to be excluded from the rights granted by
ones political community was therefore an attempt to find a new guarantee of human dignity.
In pointing out that the restoration of human rights "has been achieved so far only through the
restoration or the establishment of national rights," (Arendt, 1951, p.380) Arendt appears to be
arguing that only the restoration of national rights could guarantee disempowered minorities
the right of membership (Beltran, 2009)

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Oliver Biggs 10/05/2013

Arendt argued that the 'right to have rights' could not be guaranteed by a world state - which,
if it were to be created, could all too easily resort to its own programme of 'denaturalisation' -
or any other form of 'global' organisation. The UN Declaration of Human Rights was
supposed to change the fact that only the state could guarantee and protect rights. However
although the rights of man were outlined in the declaration, because they had never been
philosophically established but merely formulated, never politically secured but merely
proclaimed (Arendt, 1951, p.446) Arendt argued that they were not taken seriously and
remained as mere guidelines upon which the civil laws of states were 'supposed' to rest.
Instead, Arendt argues that the right to have rights is contingent upon "the collective will of
circumscribed polities." (Benhabib, 2004, p.66) However, the paradox here is that a sovereign
state, in bounding itself by the law of self-government also defines itself by drawing
boundaries. Thus in the Origins of Totalitarianism, Arendt quotes Lawrence Preuss:
"sovereignty is nowhere more absolute than in matters of emigration, naturalization,
nationality, and expulsion and as such perpetrates its own regimes of exclusion. Arendt
argued that exclusionary territorial control is a sovereign privilege that cannot be tempered by
any other norms or institutions. (Benhabib, 2004) Human rights seek to protect the 'bare' life
of human beings who lack a place in the world. However, it is the sovereign that has the
power to make this distinction, with power to exclude from the political community. There
remains therefore a seemingly unresolvable tension between the 'boundless universalism' of
human rights and humanity's relation to a particular collective. (Kesby, 2012)

To what degree then, has this tension been resolved in the Contemporary World? James
Bohman argues that by grounding legal status in civil status, Arendt does not solve the
problem of rightlessness but simply restates it. He argues that legal status needs to be
unlinked from membership of a particular community and celebrates the fact that there now
exists a growing "variety of functioning human rights institutions." (Bohman, 2012, p.321) A
number of cosmopolitan thinkers have argued that since Arendt wrote the Origins of
Totalitarianism, a number of normative and institutional developments have begun to address
some of the paradoxes that Arendt she unable to resolve. At the very least, The 1951 Geneva
Convention Relating to the Status of Refugees, the UN High Commissioner on refugees, the
World Court and The International Criminal Court are all intended to protect those "whose
right to have rights have been denied." (Benhabib, 2004, p.68) Thus, so the claims go, a new
reality exists in which states are not the only institutions that can "address the claims of de-
nationalised, stateless and persecuted persons." (Bohman, 2012, p.322) As well as the
proliferation of institutions whose purpose is to protect those without the right to have rights,
Benhabib argues that developments in international law are moving towards the de-
criminalisation of migratory movements, whether they be caused by the search for "refuge,
asylum or immigration proper." (Benhabib, 2004, p.68) She highlights the way in which the
definition of a convention refugee under international law has expanded to include the
helpless victims of social and political occurrences, and that article 14 of the Universal
Declaration of Human Rights now anchors the right to asylum as a universal human right.
(Benhabib, 2004) However, it is necessary to ask to what degree have these developments
succeeded in providing and guaranteeing human rights and what are the consequences for
state sovereignty?

Hannah Arendt sought to move away from a conception of human rights as 'natural' and based
on an 'abstract' human being. She argued that the 'right to have rights' is essentially the right to
a political community. The principles of human rights on the other hand, maintain that it is
simply the act of existing, of being human that gives the right to have human rights, and that
this right is "now a legal norm that binds the international community." (Brunkhorst, 2012,

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p.4) Thinkers such as David Held and Anne Peters are increasingly arguing that a person's
'place in the world' is now that which is conferred to them by international human rights law.
To the extent that individuals are recognised as holding rights directly under international law
and that International human rights treaties seek to protect these rights (whatever the
individuals nationality), it is claimed that 'de-nationalised protection' has occurred, whereby
legal status has been uncoupled from a particular community. Thus David Held argues that
human rights law has placed "individuals, governments, and nongovernmental organisations
under new systems of legal regulation regulation that, in principle, is indifferent to state
boundaries." (Held, 2003, p.169) Such cosmopolitan thinkers argue that a process is underway
whereby "state sovereignty has its source and telos in humanity, understood as the principle
that the state must protect human rights, interests, needs, and security." (Peters, in Kesby
2012, p.4) Thus the tension between human rights and the sovereign state have apparently
been resolved. Whereas states had previously only had obligations in relations to other states,
now they are considered to have obligations to all individuals under their jurisdiction. By
making the individual the subject of international law then, this view claims that the
individual must no longer be dependent on the protection of the nation state. (Kesby, 2012)

Political theorists have advocated the emergence of 'cosmopolitan' citizenship founded on the
individual. This seeks to 'exclude' exclusion and the issues of immigration and membership
through grounding the right to have rights in global citizenship thus expanding the "protective
reach of democracy [] beyond (the nationally grounded conceptualisation of) citizens"
Bohman, 2012, p.322). The human rights system is seen to be encouraging a form of de-
nationalised citizenship that exists beyond the state. Habermas argues for a form of world
citizenship that is derived in part from the normative framework of human rights. He supports
a form of cosmopolitan law that directly establishes the legal status of individuals by granting
them "unmediated membership in the association of free and equal world citizens."
(Habermas, 2005, p.181) He considers the concept of 'deliberative democracy' to be a
particularly useful concept for thinking about how to democratise regional economic and
political blocs and how they might then form a part of a cosmopolitan governance system.
(Scheuerman, 2008) David Held in contrast, argues that the concept of the equality of all
human beings is one that is already embedded in the current system and institutions of the
human rights regime. (Held, 2003)

These accounts therefore present the international human rights regime as a fundamental part
of an emerging cosmopolitan world order, or at the very least as playing an important role in
the recasting of the individual as the subject of human rights at the international level. (Kesby,
2012) According to these views, national citizenship is being transformed and the significance
of the legal status of citizenship for the enjoyment of rights within a state is diminishing.
Yasemin Soysal cites a number of developments to argue that multiple forms of citizenship
are emerging
These developments are:

-Intensifying levels of transnational discourse

-The development of legal instruments codifying human rights at a world level
-The increasing legitimacy of the right to one's own culture and identity - as a consequence of
decolonisation and organisations such as UNESCO
-The diffusion of sovereignty
-The emergence of multi-level polities such as the European Union

These new forms of citizenship, Soysal argues, are "no longer anchored in national
collectives." (Soysal, 1997, p.1) Instead, citizenship is becoming 'post national.' Soysal

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Oliver Biggs 10/05/2013

highlights the way in which long-term resident aliens can now gain access to rights
traditionally limited to citizens to argue for example that "Access to a formal nationality status
[national citizenship] is not the main indicator for inclusion or exclusion in today's Europe."
(Soysal, 1997, pp.5-6) Linda Bozniak meanwhile, identifies the rise of supra-territorial civil
society as one example of this de-nationalised citizenship. (Bozniak, 2000) In a similar vein,
Saskia Sassen identifies a series of 'micro-transformations' that are occurring within the
institution of citizenship that are "loosening the 'national grip' on citizens rights." (Sassen,
2003, p.27) Thus it is argued that the blurring of the boundary between the 'citizen' and the
'alien' it leading to the creation of new post-national political subjects that challenge the
traditional boundaries of sovereignty.

Kesby cites the right to marry as an example that signals the potential for international human
rights norms to disassociate rights from citizenship and even immigration status. A scheme
established in the U.K. under Section 19 of the Asylum and Immigration Act of 2004
prohibited registrars from registering marriages where one party was subject to immigration
control unless said party met a series of conditions. Essentially, the act sought to prevent
marriages of convenience in the U.K. that were effectively circumnavigating the efficacy of
U.K. immigration law. This represents an example of internal border control whereby "the
equality of status within the state is shaped, and undercut, by the imperatives of border
control." (Kesby, 2012, p.12) Despite the fact that the scheme was amended three times, it
was challenged each time by the European Court of Human Rights as the decision to grant a
certificate was not solely based on the genuineness of the proposed marriage. The Balai case
(in which the scheme was challenged) therefore provides a concrete example of a case in
which human rights norms were used to assert humanity rather than immigration status as the
basis of entitlement to rights. rights. Supporters of human rights thus see them as a valuable
tool for constraining the sovereign state, using moral principles and legal institutions to limit
the power of government.

International human rights norms would therefore seem to confirm the statement that
individuals hold rights within states as a result of their humanity rather than their citizenship
status, and even to suggest the possibility of the emergence of a cosmopolitan world order
whereby citizenship and legal status are becoming de-nationalised. However, this relies on the
assumption that the legal status of citizenship has been supplanted by that of humanity.
(Kesby, 2012) However, in terms of the enforcement of international law, the international
human rights regime is "notoriously weak" (Rensman, 2011 p.144) and the human rights
system remains in practise premised on the state. Brunkhorst argues that human rights
regimes are growing stronger as nation states grow increasingly dependent on international
law and supra-national institutions. (Brunkhorst, 2012) However he also argues that these
very institutions can be characterised in two contrasting ways. On the one hand they are
characterised by legal declarations of egalitarian rights and democracy, but on the other the
implementation of these declarations is characterised by 'the international constitutional law
of check and balances' in which the "sovereign equality of all states" (Brunkhorst, 2012 p.9) is
a central component.

This analysis fits with Rensman's statement that international law protects the "walking
corpse" of national sovereignty. (Rensman, 2011, p.134) As Habermas acknowledges, "The
weak link in the global protection of human rights remains the absence of an executive power
that could enforce the General Declarations of Human Rights, if necessary by curtailing the
sovereign power of nation states." (Habermas, 2005, p.182) This lack of executive power
means that the domestic sphere remains the primary site for the enforcement of human rights,
the state remains the primary sphere or right-bearing through national law, and thus that the

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legal status of citizenship has not been replaced by humanity. (Kesby, 2012)

At this point it is also worth noting the tendency of established authorities - including
sovereign powers - to dominate the human rights discourse and in doing so to shape emerging
claims in ways that stifle their potentially transformative impact. Upendra Baxi for example,
demonstrates the way in which the 'right to development' an an means of opposing the neo-
liberal growth model, was undermined as a result of the hierarchical power structures that
define human rights within international institutions (Baxi, 1994) Mutua Makau also
highlights the way in which the mantra of universal morality that surrounds human rights
actually obscures the fact that they can have a distinctly political dimension. As an example of
this he describes the way in which western states have used their power to prevent any
meaningful dialogue about economic human rights that would regard the impoverishment and
deprivation of millions as a crime to which it should be possible to hold individuals and
institutions accountable (Makau, 2008) It is also worth noting at this point that international
institutions tend to suffer from a degree of 'democratic deficit' in that in enlarging the
democratic unit beyond the nation state the capacity for the citizen to participate is
increasingly limited. (Dahl, 1999) Thus human rights do not simply act as a tool for limiting
the power of sovereign states but the nature of these very rights can in themselves be shaped
in the interests of particular states.

Just as the idea that human rights are an effective tool for constraining the power of sovereign
states has been challenged, so too has the idea that citizenship is being denationalised, namely
that humanity is increasingly becoming the basis to rights. Despite citing the Balai case as an
example of how human rights norms can lead to the denationalisation of rights, Kesby argues
convincingly that Human rights are not universal but remain 'undercut' by a individuals
citizenship or, increasingly, immigration status. Sassen hails the International Convention on
the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)
as one of the most important documents seeking to protect the rights of migrants. (Sassen,
1996, p.94) She highlights the way in which - regardless of ones immigration status - it
reaffirms basic human rights for all. Catherine Dauvergne on the other hand, choses to
emphasise the fact that it also clearly underscores the right - and in fact obligation - of the
sovereign state to prevent unlawful migration. Within the context of immigration, it has
generally been considered legitimate to draw a distinction between citizens and non-citizens.
The fact that the ICRMW distinguishes between the rights of documented and undocumented
migrants and that migration status does not make an appearance on the list of prohibited
grounds for discrimination, only serves to reinforce the lack of rights available to
undocumented migrants under the international human rights law - and thus also to reinforce
the primacy of state sovereignty over the rights of these migrants. (Kesby, 2012, p.16)

It has been argued that globalisation has challenged Sovereignty in a number of ways
(Clapham, 2002) and it does appear that state boundaries are becoming more porous. Thus it
could be argued that the ability of nation-states to exclude is being compromised. However,
Dauvergne argues that "migration [control] is increasingly being transformed into the last
bastion of sovereignty. (Dauvergne, 2008, p.47) As state boundaries become more porous,
Kesby argues that border control is being shifted internally in a number of ways. This includes
the re-interpretation of human rights according to immigration status. (Kesby, 2012, p.8) This
is a view shared by Peter Nyers, who argues that the ability of states to include and exclude
has "not diminished, only taken new forms" (Nyers, 2003, p.1070)

While Hannah Arendt argued that the plight of the stateless would remain one of the most
daunting problems of the twenty-first century (Arendt, 1951), Bohman claims that it is

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refuges who are "symptomatic of the present era" (Bohman, 2012, p.322) Although strictly
speaking they do not lack the right to have rights (to membership in a political community)
this 'membership' is not sufficient for them to have a worthwhile human life and are
essentially 'forced' to migrate. (Bohman, 2012) If they are not denied entrance to a new
political community then once they have entered one they lack legal status and citizenship.
Arendt presumes that legal status can be derived from citizenship, from membership in a
political community, But in the case of stateless persons such as refugees, a 'complex
interplay' exists between the physical boundary of the territorial border and - a level of
abstraction - the boundaries of the legal order. (Kesby, 2012, p.14) Thus it is increasingly
possible for those who are physically present within a political community to be excluded
from the legal order. Kesby highlights the way in which ICRMW excludes undocumented
migrants from the public sphere. In recognising the undocumented migrant not as a "political,
social, spiritual [or] productive being" (Kesby, 2012, p.16) but merely as a labourer who
operates in the 'private' sphere of the workplace, she is thus excluded from the public sphere,
the space in which broader rights-claims can be made. The construction of 'human rights' on
the basis of immigration status, denies the undocumented migrant a 'place in the world' and
therefore questions both the cosmopolitan claim that the right to have rights is grounded in
humanity and the claim that citizenship as a legal status is losing its significance as a pre-
requisite for the entitlement to rights. Instead, it becomes apparent that it is "through the law -
not only national law but also international human rights law - that illegal status is
constructed, rather than remedied." (Kesby, 2012, p.16)

The degree to which immigration status has become a precursor to the ability to access human
rights is demonstrated in the context of immigrant detention. Under the European Court of
Human Rights a specific exception to the right to liberty is made with regards to immigration.
Thus, immigration detention - on the proviso that it complies with the principles of legality
and freedom from arbitrariness - is not prohibited under human rights law. (Kesby, 2012,
p.15) However, in principle, under international human rights law a stateless person who has
entered a state unlawfully is not to be indefinitely detained. However, the case of Al-Kateb v
Godwin provides an example whereby international law is over-ridden by national law.
(Kesby, 2012, p.22) Mr Al-Kateb, a stateless Palestinian man who had lived for most of his
life in Kuwait was detained under the Australian migration act upon his arrival in Australia.
After failing to gain refugee status he requested to be returned to either Kuwait or Palestine.
However, the Australian state was not able to secure his return to another state. Consequently,
the Australian high court, determining that there was no likelihood of his removal in the
foreseeable future, ruled that he be detained indefinitely. This act is in direct contravention to
human rights law. As an 'unlawful' citizen, Mr Al-Kateb had lost the right not to be arbitrarily
detained. This example provides an excellent demonstration of the degree to which lawful
presence and/or citizenship remain the basis on which rights are recognised at national level.
While Mr Kateb could challenge the ruling of the Australian high court at international level,
the international bodies that supervise human rights law do not have the means to enforce
their opinions, further reinforcing the degree to which the rights of stateless people are
determined by national - rather than international law.

While advocates of human rights see them as a tool for constraining the sovereign and critics
argue that they can become a powerful tool that works in the interest of the sovereign (or as
an impotent force that the sovereign can simply ignore), a re-conceptualisation of sovereignty
allows for an additional interpretation. The impacts of globalisation are leaving the state less
powerful in some areas such as with regards to control over the domestic economy. At the
same time Connoly argues that the state is becoming more intent to assert its authority in
other areas such as security and border control (Connoly, 2002) Thus it can be argued that

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sovereignty is plural and contested. Human rights within this understanding of sovereign
power push and pull in different directions. Thus they suggest that certain rights and
responsibilities be enacted and protected, advocating for example that membership to
extended to people outside of the political community - through their appeal to 'humanity' as
an alternative political identity - or for citizenship rights to be expanded to new groups within
the polity. They can also demand new forms of authority beyond the national state. Thus they
do not necessarily work as a justification for the state, nor do they necessarily underwrite the
need for a cosmopolitan transformation. (Hoover, 2013) In this new space human rights can
be understood in the context of activism, as a means of generating space to contest both
existing identities and political authority, to claim rights that have yet to be institutionalised.
An example of this is provided by Peter Nyers who refers to the anti-deportation activities of
un-documented 'non-citizens' in Canada to advocate a form of 'abject cosmopolitanism'
whereby those lacking status, citizenship and therefore the requisite identity to 'be' political,
perform an 'impossible' activism that challenges both the way in which they have been
identified and what Nyers refers to as the "violent paradoxes of sovereignty." (Nyers, 2003,
p.1080)

In conclusion I would argue that a deep tension still remains between the sovereign state and
human rights. A plethora of international institutions have been created with an expressed aim
of protecting the rights of those whose right to have rights has been denied. The human rights
regime has sought to ground the 'right to have rights' in humanity itself, whereby the subject
of human rights is now the human rather than the citizen. Many have argued that citizenship is
becoming increasingly 'denationalised' and the Balai case provides us with an example of how
a person's ability to claim rights does not necessarily have to be defined by national
citizenship. However, the universality of the subject of rights largely continues to be
interpreted by states according to citizenship or immigration status, with the drawing of a
distinction between citizens and non citizens generally being "considered legitimate within
the immigration context." (Kesby, 2008) As state boundaries have become increasingly
porous, states have increasingly turned to internal forms of immigration control which allow
them to exclude 'illegal' immigrants from access to resources within their territorial limits.
Despite the establishment of international human rights norms, state capacities to include and
exclude have not diminished and the state remains "the primary sphere of right
bearing."(Kesby, 2012, p.4) While the right to seek asylum is therefore recognised as a human
right, state sovereignty continues to be the "major foundation of international law" (Rensman,
2011, p.144) with, for example, states continuing to closely guard the obligation to grant
asylum as a sovereign principle. (Benhabib, 2004)

The Al-Kateb case demonstrates the way in which an individual lacking citizenship or lawful
presence can be denied recognition as the bearer of rights. Thus, while the human is
recognised under international level as the bearer of rights, at the national level citizenship or
lawful presence remains the pre-requisite for the recognition of these rights. However, as the
Balai case demonstrates, human rights norms can be used in some cases to assert humanity
rather than immigration status as the basis of entitlement to rights. Baxi and Makau in
highlighting the political dimension of human rights and the way in which the human rights
discourse is contested by different states reinforce the way in which I believe human rights
should be understood; not in the context of a universal morality but as a site of contestation.
Human rights can push and pull in multiple directions, Human rights law can be used both to
challenge and to reinforce the power of state sovereignty. It can be ignored by sovereign states
and it can itself also be shaped by the interests of those same states. Thus, I would argue that
despite developments at the trans-national level and the establishment of global human rights
'norms', the relationship between human rights and state sovereignty is complex and the

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tension that Hannah Arendt highlighted remains to this day.

Word count: 4,583

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