Human Rights Adrift from Natural Law: A Review of Itamar Mann’s ‘Humanity at Sea’

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What is the source of human rights law?  Itamar Mann’s new book, Humanity at Sea: Maritime Migration and the Foundations of International Law, offers a thoughtful and original answer to this age-old question.  He suggests that human rights law is neither positive law nor natural law, but rather a “commitment to paradoxically and counterfactually regard some form of imperative as extra-political.” (13)  Mann argues that this imperative originates in a dyadic (rather than collective) encounter with the presence of another person, presenting the “universal boatperson” to illustrate this concept. (12-13)

The book is structured as a series of rich case studies, which Mann utilizes exceptionally effectively.  Through exegesis and context, he provides new understanding of and insights into familiar situations and cases, including the stories of Jewish displaced persons traveling to Palestine, refugees fleeing Vietnam by boat, Haitians pursuing protection in the United States, and African migrants seeking safety on the shores of Europe.  We see here both the political theorist and the human rights reporter in action, drawing in the reader with detailed and fascinating stories, and drawing out the theoretical implications in provocative new ways. 

But of course the purpose of this symposium is not to gush about the strengths of the book but instead to engage with its tensions and unanswered questions.  The central issue on which I will focus in this brief blog post is whether it is possible to locate an extra-political set of rights outside of natural law (and beyond positive law, but I will not engage with the positive law questions here).  As a deep skeptic of claims to universalism, I was sympathetic to Mann’s direction but wondered about the implications for human rights law if natural law is eliminated from its foundation.  Can human rights law retain its power if it is located instead in a dyadic encounter with the presence of another human?  This gets to the deeper question of whether it is possible to sidestep metaphysical questions, as Mann explicitly does in the book, in establishing the source of human rights.  He argues that the human rights encounter forms an extra-political imperative even as we realize that it is political.  But if the imperative is essentially political rather than rooted in “human nature,” can it hold across countries and cultures and even within diverse societies?  Mann seems to be saying that one can choose to believe that human rights law is extra-political – but then what is to stop us from choosing to view human rights law as political and therefore easily dismissed?  In other words, if human rights law does not stem from a universally shared set of values, it loses much of its power as an imperative.  While Mann acknowledges that the human rights encounter is not universal, he does not grapple with the impact of this shift on the effectiveness of human rights law.

The second question is whether Mann’s human rights encounter does, in fact, escape the grip of natural law.  He identifies embarrassment as a sign that there is a source of law beyond sovereignty. (50)  Mann denotes two components of embarrassment: failure to be true to the self, and failure to be true to the self as perceived by others.  There is an underlying “ought” here – a judgment that assumes shared internalization of a certain set of values and a certain view of responsibility.  For the universal boatperson’s claim to membership in humanity to have traction, the addressee of the human rights claim must perceive humanity as equal, a perspective that appears increasingly rare amongst political leaders and voters of late.  In other words, there is a normative judgment at the core of the imperative – and from whence does that judgment derive, if not from natural law?

The “universal boatperson” presents an example of these related tensions.  Mann explains that this individual’s rights stem from human existence, “outside of state authority and beyond contractual obligation.” (72)  In other words, the extra-political imperative arises from the humanity of both the individual raising a human rights claim and the individual to whom that claim is addressed.  Mann’s argument here depends on a particular and fairly optimistic view of human nature and morality: the idea that all human lives should be equally valued in all, or at least most, situations.  While I am sympathetic to his assessment, a different moral argument might require an individual to ignore the human rights claims of one individual in order to protect the lives or even rights of a larger group of people.  Both contemporary politics, and history, as illustrated in the book’s case studies, provide examples of opposing perspectives based on the professed need to protect sovereign territory and its inhabitants.  Without natural law foundations, how can human rights law successfully assert the superiority of its approach?

If human rights law is at its core political, this is a problem not only in the face of competing moral choices, but also with respect to competing political and legal demands.  In her encounter with the universal boatperson, the addressee of the human rights claim must believe she can and must uphold human rights law in the face of countervailing sovereign directions.  This requires both a conception of the self as autonomous and deep conviction concerning the content of human rights law.  If she fails to hold either of those beliefs, she will not take responsibility for her response to the encounter, and will not experience the necessary embarrassment.  The extra-political imperative will be drained of its power.

Mann’s next move is to posit that human rights enter into the realm of law through a particular understanding of recent history “imbued with historical lessons and situated experience,” rather than through reasoning about human nature. (72-73)  This argument assumes a shared understanding of recent history, but doesn’t address the differing levels of awareness, acceptance, and interpretation of past events across individuals, groups, and societies.  Who determines the parameters of an appropriate response?  Without a more explicit examination of these questions, the “particular understanding” treads dangerously close to natural law.

A similar tension underlies Mann’s description of the human rights commitment as recognizing the constitutive violence of forming a community and its arbitrariness.  Following a reminder that we were not always parties to a social contract, this recognition entails duties to those without effective citizenship. (104, 107).  This approach assumes a particular perspective on the justifications for community formation and the equality of all humans, as well as recognition of one’s own vulnerability.  Contemporary populist politics provide easy examples of entirely different reactions to community formation and exclusion, offering numerous justifications and little recognition of arbitrariness.  Mann suggests that human rights commitments depend on the realization that political life exists not only within but also outside of membership in a social contract, a concept that has been roundly rejected by voters in several democratic nations of late. 126).  In other words, if adherence to human rights law is a rejection of foundational violence, how can political action be operationalized when foundational violence is widely accepted?  Natural law offers an answer, if an unsatisfying one, to this question, but the human rights encounter does not.

Mann recognizes another tension in his dyadic approach, which is the question of whether the human encounter is possible in the current age of surveillance.  He notes that “relatively affluent countries use their economic and political clout to push other countries to carry out the necessary violence of border enforcement for them,” not just in spite of but in part because of recent European Court of Human Rights judgments (183.)  Mann argues that these countries have obstructed the physical possibility of the human rights encounter, which must now take place in the political imagination.  But of course the imaginary of migrants on boats cuts both ways; contemporary politics more easily imagine non-members arriving on crowded rickety vessels as economic and security threats than as humans to whom we owe duties based on their humanity.  Again, there is an unanswered question about who determines appropriate boundaries for the political imagination and on what basis.  If these borders derive from politics rather than human nature, can they be leveraged effectively to protect vulnerable migrants?

As this brief discussion suggests, Mann offers ample food for thought in his new monograph.  He presents numerous compelling arguments to which it is impossible to devote sufficient time in this forum, but they include the ideas that human rights must begin from the claims of those who demand rights, that human rights law does not stem from positive authority and therefore cannot be suspended by the sovereign, and that we must start from the assumption of political inequality to theorize human rights.  Mann’s book is a serious step in the direction of establishing a more compelling and effective theory of human rights, which is much needed and long overdue.  The tensions addressed in this post demonstrate that Mann will have ongoing questions to address, and around which to engage with his readers.  This strikes me as good news for humanity at sea and human rights law more broadly.

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Brad R. Roth says

August 3, 2017

This is a wonderfully provocative post. Regarding Mann's crucial idea “that human rights law is neither positive law nor natural law, but rather a ‘commitment to paradoxically and counterfactually regard some form of imperative as extra-political’”:

Why should we wish to conflate “human rights” with “human rights law”? The distinctive value of the latter is that it supplies second-order moral reasons (along with whatever political incentives the system can muster) to comply with methodologically-valid legal conclusions, even where “the addressee of the human rights claim” rejects the first-order moral considerations favoring those conclusions. (My claim presupposes, of course, that methodological validity – within a particular national, subnational, or international political community – can produce content-independent moral reasons to obey a legal determination; admittedly, this is a controverted proposition, but the consequences of rejecting it are often underappreciated.) The first-order moral considerations remain, irrespective of legal validity, but establishing those considerations as law represents a political victory that authorizes a claim on those who disagree.

My point is not that lex lata and lex ferenda can be isolated “in hermetically sealed containers,” nor to deny that there are morally exigent circumstances in which even governmental and judicial officials should place first-order moral considerations ahead of positive law. But if we insist on reducing law to whatever we vehemently regard as just, we undermine the institutions on which we depend to implement those rights that have been successfully incorporated into law. As your post aptly points out, the “good guys” do not have a monopoly on appeals to righteousness.

Mary Ellen O'Connell says

August 3, 2017

Jaya, Are you persuaded that the author's approach to human rights is neither positive nor natural law but still law?

Mary Ellen

Kriangsak Kittichaisaree says

August 4, 2017

I like Mary Ellen’s question!

I have not read Mann’s book. But from the book discussion, Mann seems to me that Mann is proposing a new theory regarding ‘boat people’ fleeing their countries of origin. It may not appear to be ‘lex lata’, but merely policy considerations in support of a theory for ‘lex ferenda’ on ‘humanity at sea’. However, coming from a country that used to shelter hundreds of thousands of Indochinese boat people, I can share with you a few thoughts.

Firstly, during the influx of Indochinese boat people, Western nations including European States explained to their Southeast Asian counterparts that there was lex lata obligations (based on international human rights law, of which international refugee law formed part) to welcome and shelter the boat people. A question to be asked is: has Europe changed its position or has the then ‘lex lata’ been superseded by new ‘lext lata’? Cf. also the EU’s position/comments on the International Law Commission’s work on ‘Expulsion of Aliens’.

The duty to rescue those in peril at sea as part of the human encounter also involves a delicate issue of moral choice. I am still struggling to find the [a?] right answer to one question. It does happen at times that when the boat people see a naval vessel/merchant ship etc. nearby they DELIBERATELY sink their vessel so that they will be rescued instead of being otherwise neglected if they let their vessel sail on as it is. This kind of deliberate action puts the lives of the vessel’s passengers in peril. But if the passing ship does not ‘rescue’ them, the captain etc. of that ship would be in violation of the duty of rescue. But, if the rescue is undertaken in such circumstances, it will act as a ‘pull’ factor, giving an incentive to other boat people to DELIBERATELY sink their respective vessels. I wonder if anyone can help me solve this question.

The phenomenon of boat people also has another far-reaching implication: the right to settle permanently in a country of one’s choice IF they prefer not to return home after the end of upheavals back there. There could be many theories for and against this. (I’ve heard one argument that people from former colonies should be entitled to settle permanently in the countries that used to colonize theirs: something of ‘colonial debts’ to be paid back, i.e., ‘X country got rich from our natural resources etc., it’s now time to X to take care of us’.) Will international human rights law/lex lata/lex ferenda approve this?