On this 70th anniversary of the adoption of the Geneva Refugee Convention (GCR), less than 1 percent of the world’s refugees are resettled: most refugees are forced to risk their life and limb on perilous journeys, often enduring extensive human rights violations. Absent a right to asylum as such, the treaty anticipated irregular travel: Article 31 enjoins states from penalising refugees for their ‘illegal entry or presence’. In particular, we explore practices the rationale of which seem at odds with that of the Convention, such as externalisation practices, razor wire fences, walls, interdictions at sea, carrier sanctions, conspicuous ‘safe third country’/‘first safe country’. These practices increasingly render refugees’ right to claim GCR protections ever-more challenging. Covid19 has highlighted the significance of enjoying the protection of one’s country Can it be a moment of reckoning for rethinking ‘Global North’ practices that render access to asylum a near-impossibility?
If we look back at the decades since the formalisation of international human rights instruments, two things become clear. First, human rights are important. Second, human rights are not enough. Traditional theoretical framings of rights tend to see citizen rights as particular, deriving from the relationship of an individual with a State. Theoretically, human rights can seem more abstract, perhaps pre-institutional, invested in humans qua humans, but not tied to particular States. This has significant implications for those whose principal relationships with States and with the multistate system are not of citizenship. I suggest, therefore, the need for a noncitizenist move in thinking about rights, where a person is in a noncitizen relationship if, for example, they must live out their life despite a particular state. Noncitizenship, like citizenship, is a particular relationship . Noncitizenship and citizenship are not opposites, but are different modes of relating with a State.
Pre-removal detention of de jure stateless persons suffering from absolute lack of residence rights might seem an instance of the more general problem of legal limbo and irregularity in which undeportable persons find themselves. However, while third country nationals are undeportable usually for reasons of fact (non-cooperation of the individual, non-provision of travel documents by national embassies, lack of safe transportation means), de jure stateless persons might be undeportable because they lack right to stay on any country. This paper argues that the flaw is foreseeable from the study of law as it stands and that pre-removal detention of undeportable stateless individuals is therefore not a judicial error or a bug: it is a feature of the system at odds with the very rationale of a human right regime the purpose of which is to protect all persons against, inter alios, arbitrary detention.
Since Hannah Arendt expressed her skepticism on the rights to be a citizen, the doctrine and practice of citizenship and ethnicity have been divided among analytical method, ethical responsibility, and, according to Eric Santner, those who do not take the ethical constellation for granted. Otherwise, they claim that bourgeois ethics is a form of “despolization” and “neutralization.” In my hunch, following the political phenomenology of Arendt's work, human rights must be understanding as an opening to the Other (Levinas) in the “dark background” context that Arendt described in the “Origins of Totalitarianism.” Law and society have not yet come to terms. Refugees are not an Other and do belong to a community because they are permanently pulled from the public space and throw into a “bare life”, as if they were in a virtual concentration camp. My presentation seeks to introduce the notion of the “Other” and how it could improve the current dimension of our “dark background.”
When Hannah Arendt declared that nationality is “the right to have rights”, it was rather an expression of scepticism about the emerging Human Rights regime than enthusiasm for the legal status of a national. Nationality is, and always was, a violent gatekeeper of access to rights. Building on the work of Hannah Arendt, the paper questions whether nationality is or has ever been “the right to have rights” – specifically whether nationality as an abstract international category can be said to inherently guarantee any form of protection through legal rights. The paper adopts a decolonial perspective, and searches for evidence about the relationship between the legal status of nationality and the rights associated with it beyond the wealthy west. In this light nationality emerges as a “surprise package” in terms of the content of rights and duties in may entail – unpredictable outside of the context of a specific individual and his or her state of nationality.