Review of Itamar Mann’s ‘Humanity at Sea’

Itamar Mann’s Humanity at Sea is bold, engaging, and wide-ranging. Perhaps most importantly, it is not afraid to confront standard clichés about the conceptual underpinnings and normative architecture of international refugee law and international human rights law. In addition to specifically legal sources, it marshals a wide range of materials from a number of disciplines, particularly moral and political philosophy, in order to develop an original argument about the centrality of the refugee “encounter”—the physical and symbolic meeting between those seeking protection and those empowered to accept or reject them—to the nature of human rights generally.

On Mann’s account, human rights are non-positive norms of universal value or implication; they cannot be reduced to the rights and duties enumerated in conventional human rights instruments, whether domestic or international. Far from being ineffective or of merely marginal significance, they are one of the two “foundations” of international law, the other being sovereignty. While Mann conceptualizes sovereignty in predominantly social-contractarian terms, associating it closely with positive law, human rights, he contends, must be “understood as independent of sovereign decree” and possessed of an essentially non-positive character (p. 20). For Mann, the “encounter” between refugees and state officials is illustrative of the quandaries that animate the practice of human rights more broadly: the state official must either welcome the refugee, and thereby respect her (human rights) principles, or turn away the refugee, and thereby obey her duty (on the basis of certain forms of state law, or at least state policy). This choice is what Mann terms the “embarrassment of human rights”, and it forms the basis of his legal anti-formalism (and anti-positivism). In and of themselves, divorced from their ethical and normative dimensions, legal rules and instruments do not, Mann claims, provide us with the means to resolve this choice satisfactorily.

Mann’s rich and nuanced chapters range widely, using specific cases and disputes concerning law’s engagement with human displacement as springboards for a broader set of claims about the nature of human rights. The book’s centrepiece is that “[h]uman rights aren’t naturally given” but “the result of active assertions of rights by persons who have no rights within existing states” (pp. 58–59). Above all, what Mann seeks to develop is an account of human rights as “a non-natural but extra-statist claim” (p. 59)—a claim made by those who may seem like “passive victims of an international crisis” but are in reality “actors within it” (p. 100), determined to secure recognition from those already acknowledged as legitimate members of a given statist polity. For Mann, the principle of non-refoulement is especially significant, and ought to be understood as a jus cogens norm which, “[w]hen interpreted correctly, … can shed light on the moral and legal structure of the entire normative universe of human rights” (p. 10).

There is much to be said for this argument. That said, I cannot help but confess to some discomfort at its heavy dose of idealism. Mann relies extensively upon social contract theory, particularly Hobbes and other classic theorists of liberalism. At no point, though, does he explain why precisely it should be the case that sovereignty ought to be understood in accordance with such theory, or why precisely such theory should be preferable, say, to a hard-nosed, realistic account of the state as the institutional outgrowth of class struggle. Similarly, we are told that commitment to human rights is grounded in a thoroughgoing repudiation of certain forms of violence, and that this repudiation “is not reducible to self-interest” (p. 132). However, the argument offered in favour of this assertion is of an essentially a priori nature: commitment to human rights, writes Mann, “suspends the very existence of a bounded political community and assumes—momentarily—that it doesn’t exist” (p. 132), and in this sense can be said to “retain[] an ‘aura of mystery’” (p. 212, quoting Andrea Bianchi). Another example of this tendency toward idealism stems from the question of refugee agency. While many readers will agree that such agency must be taken seriously, and that a demand to the effect that “[y]ou must enforce my rights” underlies and inspires the refugee’s actions (p. 214, de-emphasized from original), some will be troubled by Mann’s attempt to foreground the existential moment of “encounter” at the expense of the countless structural forces and dynamics that engender displacement in the first place. After all, while it is pointless to deny that refugees are endowed with some measure of agency, such agency is clearly constrained and circumscribed to a very strong degree. In a sense, even if one subscribes to the kind of sharp distinction between state-based positive law and non-state human rights that Mann seeks to draw, it is not clear why this requires faith in the view that “[a] second source of international law exists but remains ineffable, imperceptible, and—in mainstream scholarship—untheorized” (pp. 217–18). Mann is consistently determined to avoid the charge of having succumbed to a form of natural law. At one point, for instance, he explains that his argument that human rights are fundamentally non-positive appeals not to “nature” but rather to “[t]he experience of the human rights encounter” (p. 216, original emphasis). But when all is said and done, it remains unclear why his account ought not to be understood in a neo-naturalist sense.

Humanity at Sea is a timely, erudite, and deeply passionate analysis of the historical and theoretical dimensions of human displacement. If the ambition of its argument does not always persuade every reader, it is chiefly because Mann pushes exceptionally hard to develop a new and often strikingly innovative account of human rights. That is very much to his credit—and we are very much in his debt.