What men, what monsters, what inhuman race,
What laws, what barbarous customs of the place,
Shut up a desert shore to drowning men,
And drive us to the cruel seas again.
The above verse, recounting the plea of the Trojan refugee Aeneas to queen Dido when washed ashore in present-day Libya, repeatedly comes to mind when reading Itamar Mann’s new book, Humanity at Sea. Like Mann’s volume, this part of Vergil’s Aeneid (Dryden’s translation, I, 760-63) zooms in on the basic norms governing the encounter between the powerful and the dispossessed. An encounter that, if with a somewhat reversal of cast, is played out thousands and thousands of times these years as refugees and migrants try to cross the very same waters.
Mann’s inductive approach is not shy of ambition, however. A proper understanding of the encounter between the ‘universal boat person’ and the naval authorities, we are told, holds the keys to an entire theory of human rights. His core argument, that at the heart of human right lies a dyadic encounter quite distinct from both the constitutional and intergovernmental approaches forwarded by positive international law, is both simple and compelling. The legal geography of this encounter allows us to see this more clearly as the sea ‘opens a crack between the territorial jurisdictions established by sovereignty’. Through an exegesis of major political crises surrounding boat migration since the Second World War Mann shows that even the most disenfranchised are never without political agency, and that the very act of putting one’s life at risk crossing the sea imposes an undeniable human rights claim upon the sovereign. Following Levinas this encounter is an ethical event, from which a duty follows to hear this claim by the authorities.
Accordingly, Mann specifically eschews doctrinal approaches to international law: ‘Human rights law, properly understood, is non-positive law emanating from the command of the conscience.’ Such an approach has its obvious advantages in a contested field of international law, such as this. It allows him to do away with the highly abstract and sometimes arbitrary tests currently applied for e.g. extraterritorial jurisdiction and different forms of state responsibility. It also allows him to move beyond the litany of scholarship (including my own) trying to distil legal doxa by divinating over the intellectual coffee grounds of Strasbourg judges. In their place he examines the legal argumentation of the different dissenters (Paul Weis, Justice Blackmun, Harold Koh and Judge Albuquerque to name a few) as well as the wider political and cultural discussions around the cases examined.
The inclusion of, and his ability to analyse, literary, journalistic and photographical material provides a unique portrayal of both boat migration and the politics of deterrence. Mann effortlessly complements his core focus on international law and the politics of human rights with a range of methodological moves spanning discourse analysis, cultural studies and political theology. This book is stunningly well-written, the prose is rich yet elegant, and the composition masterful.
Within Mann’s ‘human rights encounter’ current human rights strategies are further questioned. If the evolution of evermore sophisticated modes of offshore migration control is to achieve a broader societal ‘out-of-sight, out of mind’-effect, challenging these policies in strictly (positive) legal terms is a rearguard battle. Despite multiple cases of successful strategic litigation, pushing the law on extraterritorial jurisdiction, the politics of deterrence has continued unabated. For every new judgment, migration management is adapting and developing. As Mann argues, Strasbourg has at best made border control in the Mediterranean more costly for European states. If there is any hope to overcoming this dynamic, the human rights claims forwarded in regard to boat migrants need to dig deeper both inside and outside the court room.
The approach to human rights forwarded at the same time invites contestation. Most obviously, Mann’s prima facie rejection of doctrinal approaches may be argued to undermine one of the most important claims of human rights to date, namely that it constitutes binding international law within a more voluntarist conception. As I have argued elsewhere, international human rights law can be seen to impact state behavior, even in areas where states actively seek to circumvent their obligations. Mann’s emphasis on the horizontal commitment and human rights as a non-positive Grundnorm is alluring but ultimately a gamble in this respect.
Second, Mann’s starting point, the universal boat person, means that his theory of human rights focuses on the most existential claims related to a select group: the dispossessed. This may be justified insofar as the current political backlash in regard to human rights is often argued exactly by portraying human rights as protecting only those outside the (neoliberal) social contract: the foreigners, the criminals, the unemployed. The risk, however, is that the constant struggle in regard to these issues becomes a self-fulfilling prophecy. Hence, some scholars and activist have advocated 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. It is hard to see how Mann’s human rights encounter would translate to such situations, and if they do not, what does this entail in regard to the broader catalogue of human rights?
Third, some might question the kind of duty that emerges from the different historical encounters between boat migrants and sovereigns that Mann recount, and to whom it is owed. In Vergil, Aeneas is governed by ‘pietas’, which can be translated both as duty and as religious observance. In the plea to Dido above, and in Mann’s human rights encounter, this duty is to a general set of principles, referring to a broader notion of humanity and the ethical/ demands it places upon the individual – an interpretation of pietas championed by among others the theologian Lactantius. Hugo Grotius similarly opens his treatise on the Mare Liberum by citing the above verse from Vergil in order to derive the ‘law of hospitality which is of the highest sanctity’ (bk 1, p. 1). For Cicero, however, pietas is a virtue ‘which admonishes us to do our duty to our country or our parents or other blood relations’ (De Inventione bk 2, section 22, Wagenvoort’s translation). This is the duty that ultimately makes Aeneas leave Dido and return to Troy. If the universal boat person prompts a human rights encounter, this encounter may equally prompt a duty to defend the polity against a perceived Hobbesian threat. The latter duty not only fuels the current Draconian responses to boat migration, but equally finds its way into jurisprudence as a struggle between opposing principles of international law. While Mann makes a convincing case for the inalienability of human rights, the question raised by several policy-makers today is why this perspective necessarily trumps positive international law.