This symposium brought together four of my favorite scholars to engage with Humanity at Sea, and I couldn’t be more thankful. I learned a great deal from each of the reviews and entirely agree with Jaya Ramji-Nogales when she writes, in an understatement, that they leave me with “ongoing questions to address.” I will only begin to lift the burden here.
The Place of Human Rights
If human rights are to be conceptualized around a dyadic encounter, asks Chantal Thomas, must this encounter be a physical one? “Perhaps the horrific reports of Mediterranean crossings on television or in other media might stage a form of virtual encounter […] that serves as the catalyst for generating human rights.” In the book, I try to provide a starting point for approaching such questions.
Chapter 5 examines the use of surveillance systems and other technologies both by states engaged in “migration management”– and by migrants, refugees, and smugglers. Using such technologies, relevant actors re-construct and manipulate the physical encounter at sea (which is discussed in previous chapters). They are thus able to partake in the transformation of human rights jurisdiction. Since I completed the book, the use of these technologies has developed quickly and there are many more examples to discuss: readers might be familiar, for example, with the Alarmphone project. Yet I hope the underlying point the book makes is clear: there is never – and indeed there never has been — a “natural” physical encounter unmediated by technology (as theories of a “state of nature” would have us imagine). The phrase “boatpeople” is indicative, as it conjoins “people” and an ancient technology — “boats.” Just as Bruno Latour demonstrates in his analysis of the phrase “gunman,” the conjunction undoes any separateness between humans and technology.
It is from here that the book moves to what Thomas thinks of a “missed opportunity,” namely Chapter 6, on the encounter as a product of political imagination. If there is no natural, physical, core to the human right encounter — if physical presence is always mediated both by technology and by legal and jurisdictional maneuvering – than we are potentially always confronting existential dilemmas of human rights. Must I not “do something” when I watch starving children on television, even if they are in a faraway impoverished country? Sarah Sentilles just published a beautiful essay discussing action motivated by photography in Ariela Azoulay’s work. Such solidaristic action should not be confused with the kind of action my own book conceptualizes. The latter is best understood as being bound by law in the sense that it is the fulfillment of a duty.
If the result of our connection to media is to imagine ourselves as always implicated by images of human degradation, then they can’t be a basis for human rights. A problem of collective action arises: when a duty is everyone’s, no one will fulfil it. As I try to show through my reading of Jean-Claude Juncker’s State of the Union speech (2015), this omnipresent spectacle of violations is a very real experience of our time; and it has inspired some of the most committed volunteer work for refugees which we have seen since the beginning of the “crisis” in 2015. Yet it also transforms the experience of duty into one of charitable gift-giving, and thus normalizes a potentially indefinite disaster. But even in a world that constantly charges us with images of atrocity and degradation, images are not all created equally. They do not all generate the kind of experience of presence that constitutes human rights.
This doesn’t necessarily mean that such an experience is no longer possible, or that the experience of duty at the face of another person is eliminated (or must necessarily be physical). I agree with Thomas that there is abundant room to further explore virtual and technologically mediated presence and related themes. I also agree that there are often adverse dialectic consequences to the emphasis on encounter. But this, as Thomas suggests, is a “feature of international law.” Moving beyond it requires thinking beyond human rights law. My own account is not intended to move us to a better world, but to articulate human rights claims and commitments within a radically imperfect one.
The imagination of a dyadic encounter can be usefully coupled with the more familiar imagination of citizens coming together to decide upon rights collectively in a social contract. Unlike the latter, the former does not demand the assumption of a pre-political moment. Not only historical but cultural sources too are useful in illustrating this. Thomas Gammeltoft-Hansen’s Mediterranean example of Dido and Aeneas is indeed evocative.
The Nature of Human Rights
Inasmuch as there is a normative takeaway from the book’s understanding of human rights, it is that states must always remain open to being implicated by a non-citizen’s claim of equal membership in humanity. No matter what positive law may seem to allow, a duty to be receptive to such a claim cannot be legally avoided or rescinded, if a fidelity to some notion of human rights is to be kept. But this takeaway may seem utterly familiar from the history of natural rights thinking: “when all is said and done,” writes Umut Özsu, “it remains unclear why his [my] account ought not be understood in a neo-naturalist sense.”
I’ve been struggling with this critique for some time. Samuel Moyn wrote a response to an earlier version of Chapter 1, making the same point: “I cannot see” writes Moyn, “any reason why Mann’s proposed theory survives the same skepticism that has always haunted – and normally devastated – prior theories of natural law.” Ramji-Nogales ties this critique to another extremely pertinent question about history. As she writes –
The “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 dangerous close to natural law.’”
Ramji-Nogales is correct that I have attempted to marshal a certain brand of particularism against the universalism characteristic of natural rights. The book makes no claim of monopoly over interpretation of history, nor does it even seek to offer a necessarily preferable interpretation when compared to multiple other possible options. The argument I do make, however – and this could be more explicit in the book – is that there is a genre of interpretations of history that have a common normative edge: they push back against a positivist international legal tradition that has rendered states the sole sources of rights. The interpretations I want to advance have certain characteristics in common, e.g. problematizing the founding violence of modern states. They also unanimously advance a critique of the assumption of incremental progress in history, central to public international law.
The book unfolds one such interpretation centered on the figures of the migrant and the refugee. Each such interpretation is different; but they all have in common a realization that membership in a social contract cannot be the only way to politically engage or demand equality, nor can it be the only way to establish rights. As others explained, another notable tradition within this larger family is one centered around indigeneity. Yet another tradition stems from histories of slavery. It might very well be the case that these traditions are at odds with “human rights” law and / or institutions as they have been mainstreamed to produce consensus. This does not mean that consensus should be preferred. Being part of such a tradition of human rights is not primarily being rationally or morally convinced of the equal worth of all human beings. Unlike in the natural rights tradition, it is not a matter or truth but a matter of conviction and a matter of identity. This hardly makes it less powerful.
The Force of Human Rights
Related to the critique of my ostensible naturalism, but with a more practical bent: can such a particularist understanding of human rights be politically effective? Ramji-Nogales thinks not. The danger, presumably, is that it will end up meaning anything to anyone. Furthermore, that “political life exists not only within but also outside membership in a social contract […] has been roundly rejected by voters in several democratic nations of late.” At issue is the rise of so-called populism, which human rights advocates have recently felt the need to respond to.
One strategy of response, which Thomas Gammeltoft-Hansen appeals to, is “a larger focus on ‘the everyday rights and protections’ enjoyed by the larger majority of populations as an attempt to rekindle popular support for human rights.” He is right that my own theory of human rights is in some tension with this kind of effort (premised on generating consensus). As Ramji-Nogales explains, and I agree, the imagery “of migrants on boats cuts both ways; contemporary politics more easily imagines non-members arriving on crowded rickety vessels as economic and security threats than as humans to whom we owe duties based on their humanity.” The ethical significance of an encounter with non-members at risk cannot be simply assumed. Their claims are not necessarily consonant with the interests of majorities.
But I believe efforts such as those Gammeltoft-Hansen is describing, recently exemplified by Philip Alston’s The Populist Challenge to Human Rights, are ultimately misguided. If progressive political forces – whatever that may mean – are to “fight” back against the rise of xenophobia, human rights may not always be the most important vocabulary. Assuming they are may not only be politically counter-productive, it might also advance an ultimately wrong understanding of what human rights are. More fruitful than these efforts to “popularize” human rights are richer and more context-specific vocabularies of collective political action: those mounting programs for economic redistribution, or cultural and race-based critiques that do not necessarily purport to apply to all persons the world over. These can sometimes be but do not have to be described in terms of human rights. In any case, they don’t entail legal duties, positive or non-positive, but visions of progressive development towards a better society. Casting them as matters of human rights can be both alienating and unnecessary.
In the refugee context, campaigns raising the banner of “human rights” have too often become associated with calls to welcome non-citizens by those who do not suffer the potential economic costs of such influx. Against this backdrop, I’m not optimistic that human rights can become a compelling political rallying cry (at least not on their own): what is needed is the kind of structural analysis that Özsu found missing from (and that was indeed not the purpose of) the book. What may also be needed is a more ambitious re-imagination of the entire international order of the kind Thomas alludes to at the end of her contribution to the symposium.
Yet all this does not reduce the importance of human rights law, and of human rights duties (as I propose to understand them). Far from providing a utopian horizon for collective organizing, human rights law based on a dyadic encounter creates a counterbalance to collective organizing. It generates duties that remain firm for the individual even if the collective chooses to reject them wholesale and stand behind the “powerful leader.” This is not to say there is no way to design environments in which it is more likely that human rights duties will be adhered to. One good place to start is asking ourselves how to ensure that the costs of adhering to such duties are more equally distributed among members of the polity.
To use Özsu’s words, I do not intend “to foreground the existential moment of ‘encounter’ at the expense of the countless structural forces and dynamics that engender displacement in the first place” (emphasis added). But I do insist that understanding such dynamics and foregrounding them is insufficient if not coupled with the component of human rights law.
The Gamble of Human Rights
Compare Özsu’s characterization of the book as “idealist” to Gammeltoft-Hansen’s charge that by eschewing doctrinal approaches, the book engages in a “gamble.”
Ramji-Nogales shares Özsu’s view. She believes my argument “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” (emphases added). If this is an accurate reading of the text, I have not expressed my views clearly. The label of a “gamble” is one I can far more comfortably embrace.
Since I do not believe there is such a thing as “human nature,” I cannot be optimistic or pessimistic about it. The reflects a belief I share with many thinkers, namely, that what it means to be human is always an open question that needs to be confronted anew. There is certainly plenty of empirical evidence that when we must make up our own decisions about the fate of others, rather than relying on some benevolent judge, things will go wrong. There is just as much evidence, however, that things will go wrong if we do follow the judge in all circumstances.
The duties attached to human rights fall upon all of us equally, even if many of us will continue to deny that. Ultimately, what we are left with as the basis for human rights is indeed a gamble. If we believe there can be anything else there, we are hopelessly deluding ourselves.