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In January 2022, a human rights organization in Greece, Mobile Info Team, reported a set of legal changes in Greek legislation that restrict the access of nearly all migrants in irregular circumstances to asylum procedures. This recent experience, among many others, reveals how contemporary borders, or the boundaries of the modern nation-state system, function as tools that manage migrant lives, in many ways affecting their life chances. In fact, borders are part of our everyday life at or within the doorsteps of states. In the status quo global context, they not only divide certain states at their limits, but they are also continuous “mutable and arbitrary” processes that manage human rights. Indeed, today’s borders, in contradistinction to the traditional phenomenon of rigid, static, and immovable structures, appear as a “human rights management” mechanism (see Gammeltoft-Hansen, 2011 on "rights management").[i] In the field of forced migration, just as in the recent Greek experience, this mechanism often surfaces with the externalization and migration management. With externalization, states aim to restrain the movement of migrants by shifting traditional migration instruments to third countries, as well as facilitating the return of “irregular” migrants to these countries via readmission agreements. But (how) can one claim and enjoy her/his human rights notwithstanding this mechanism that manages one’s access to these rights? What are the implications of individual access to justice on the struggles of these migrants vis-à-vis externalization? Needless to say, the underlying discussion is so much deeper, exposing the ongoing tension between the sovereign claims of liberal democracies and their ostensible commitment to human rights. Any lessons from the past? The contemporary experiences of migrants remind us of some of the most appalling brutalities of the past century, brought about with the two world wars that created millions of placeless, unprotected, and rightless individuals. While Hannah Arendt’s, perhaps one of the most cited works, The Origins of Totalitarianism (hereinafter, “The Origins”) reflects the experiences of these individuals, she also sheds light on the fundamental “right to have rights” that comes to light with its loss. “We became aware of … a right to have rights,” utters Arendt (1973), “only when millions of people emerged who had lost and could not regain these rights because of the new global political situation.” In fact, Arendt addresses her resentment to the shortcomings of the nation-state system which stripped millions of individuals of their nationality and failed to safeguard their rights, and to the international community which fell short of protecting those individuals in their “bare humanity” (Gündoğdu, 2015). Despite the development of a sophisticated system of international human rights law since the mid-twentieth century, however, the boundaries of nation-states persist on dividing political communities as “us” versus “them” and “legal” versus “illegal,” and the public sphere as “inside” versus “outside”. With a view to keeping the so-called integrity of these communities, today the public sphere is not only divided as inside-outside, alongside the statist practices determining certain categories of individuals who are allowed to enter this sphere, but also the access to the public sphere is managed, in other words “modulated” (Bullen et al., 2021). It has become highly challenging to know where the public sphere actually starts, where it ends, and where the space of appearance—within which it becomes possible for an individual to claim and enjoy her/his human rights—emerges, if it ever can. In that regard, borders and bordering practices function as tools to manage the access into the public sphere with limiting or even abolishing the possibilities of making rights claims. Hence, they manage “access to right to have rights” (Osso, 2019). Therefore, the phenomenon as conceived today not only concerns the loss of a “right to have rights”, but equally encompasses the deprivation of “access to right to have rights”. Whose struggle? Migrants in irregular situations, particularly refugees and asylum seekers, are amongst the groups of people who struggle the most in overcoming the challenges posed by this “human rights management” mechanism. Deprived of their “right to have rights” upon being displaced from their countries of origin, the poignancy of migrants is exacerbated due to their inability to reach safe soils where they can durably remain, in other words, without the fear of being displaced again. Indeed, the statist practices (of deportation, detention, containment) associated with the externalization of migration management decide on who can be admitted to a state territory and who can be excluded from it, on who can access to asylum procedures and who can be excluded from such process, and ultimately, on who can access to human rights. For that reason, it becomes ever-increasingly tricky to address the challenges pertaining to the claim and enjoyment of human rights that migrants in irregular circumstances encounter en route or in the countries of destination. Borders and bordering practices, in this regard, function as tools that are at the center of a human rights management mechanism: managing who can “access to right to have rights”, meaning who can access to state territory, a durable juridico-political status (e.g., access to asylum and asylum procedures), and human rights. (How) can one claim and enjoy human rights notwithstanding this mechanism? How can migrants overcome this mechanism? Is there a way they can elude the statist practices that manage their “access to right to have rights” to durably enjoy their human rights? In The Origins, Arendt does not propose a recipe for regaining the right to have rights. This is understandable, because Arendt’s contention was not finding a solution to the poignant situation of rightlessness (Gündoğdu, 2015). Rather, Arendt proposes an understanding; a comprehension of the global political context within which the existing human rights system cannot offer an efficient protection regime for rightless individuals. In contrast, some contemporary thinkers (e.g., Rancière, 2004; Schaap, 2011; Barbour, 2012) make an inquiry on the possibility of making rights claims despite being rightless. They contend that even a rightless person can enact that “right to have rights” via political action. For Ranciere (2004), the capacity of staging scenes of “dissensus” is what makes an individual political; this is what renders the rightless capable of disrupting certain exclusionary structures. In that sense, the rightless migrant is not “powerless” despite a power asymmetry between the state power managing her/his access to rights and her/his power of political agency in making rights claims. In many instances, however, even political action becomes in distress as we constantly observe from the struggles of migrants around the world. “Access to right to have rights” becomes in distress. Migrants who attempt to cross the Greek-Turkish border at the Evros River have been staging “dissensus” against the denial of their entry into the Greek territory while they have been violently pushed back by the Greek border forces towards the Turkish territory. Similarly, migrants who aimed to access the Polish territory from Belarus to be included in the EU public sphere by claiming asylum there brought about the use of force by the Polish military, as well as the recent legislative changes that legitimize pushbacks altogether. In a similar vein, migrants protesting their detention and the conditions in Australia and those protesting the US non-entrée policies at the US-Mexico border in fact pose challenges vis-à-vis the statist practices of externalization to claim and enjoy their human rights. All these experiences, however, reveal that migrants’ attempts for “access” to their “right to have rights” are blocked. This phenomenon surfaces with borders and bordering practices imposed upon migrants in irregular circumstances through externalization. It begins with the physical exclusion of migrants from access to state territory through the border. If migrants somehow succeed to reach a state territory, namely the public sphere, they may then encounter bordering practices employed by that state within its territory. In that regard, their structural-legal exclusion from access to asylum (including asylum procedures) and structural-social exclusion from access to the Greek polis of freedom and equality (the space of appearance in Arendtian terms) through the transformation of the polis into the camp modulate the spaces where migrants can make rights claims. The management of the spaces of claims making by the modern nation-states through the border, the law, and the polis indeed divulges what kind of exclusionary stages migrants need to overcome to regain that right to have rights.[ii] Perhaps, individual access to justice (in a transnational context) may offer potential venues for migrants to secure their “access to right to have rights”. A conceptualization of justice is essential in this context. While a theory of justice cannot be grasped in Arendt’s scholarship (d’Entreves, 1994; Birmingham, 2006), overall the idea of justice is strikingly absent in her work, as Pitkin (1981) reveals. Though, Arendt had a reason. As Pitkin (1981: 339) contends, Arendt “had remarkably little to say about justice”, “not because she opposed justice, but […] to save the public [sphere]”. Justice, however, can actually save that “public sphere”. Supplementing Arendtian scholarship with a theory of justice through drawing upon the work of other contemporary thinkers has potential openings for further research. This would require an understanding of the concept of justice not as “fairness” as claimed by Rawls (2009), which implies justice as some good to be distributed among citizens or in the world; rather as “participation” (Fraser, 2008). The latter describes justice as both a goal to achieve (i.e., an outcome notion) and the establishment of procedures that would facilitate achieving that goal (i.e., a process notion) (Fraser, 2008: 290). For Fraser, “justice requires social arrangements that permit all to participate as peers in social life.” “Overcoming injustice means dismantling institutionalized obstacles that prevent some people from participating on a par with others, as full partners in social interaction” (Fraser, 2008: 277). Access to justice, in this sense, can be understood as access to participation globally to regain the right to have rights without any obstacles, through formal legal institutions and political emancipation. In the current context, “access to justice” can only be guaranteed as a legal right in international law, and it is not understood as a moral/political claim. In addition, no global institution exists to ensure individual access to justice, except from human rights treaties ratified by states (Francioni, 2007: 118). Similarly, access to justice at supranational institutions, such as at the European Court of Human Rights, is tied to the exhaustion of domestic remedies (Francioni, 2007: 75). Hence, access to justice predominantly remains to be limited within the boundaries of states defined by the laws of those states (Francioni, 2007: 137). I herein propose that if “access to justice” is understood both in institutional and political senses, it may insinuate avenues for regaining the right to have rights beyond state borders. In that sense, institutional and political dimensions of justice can contribute to the materialization of “access to right to have rights”. Overcoming the statist boundaries against “access to right to have rights” may involve the engagement of formal legal institutions (e.g., establishment of transnational courts/tribunals) (as a process) and of a political dimension of access to justice which would render the rightless capable of regaining the right to have rights they were denied in countries of destination due to externalization (as an outcome). Of course, this framework needs further contemplation. A potential first question would be whether access to justice can be political. Another one may address an inquiry of the relationship between international law and emancipatory politics, i.e., whether individual access to justice as political emancipation and beyond territorial borders is possible. Overall, such a framework may bring comprehension to how migrants can secure a place in the public sphere, achieve a durable juridico-political status there, and become admitted to a space of appearance through individual access to justice mechanisms. In so doing, it may also expose certain structures fabricated by states, such as the contemporary borders, that unremittingly contest the place, status, and rights of migrants in irregular circumstances, as well as the justice claims of migrants against this contestation. This may not be a comprehensive solution to the situation of the rightless around the world who are left stranded with persistent, unforeseeable legal changes and violent statist practices at or within territorial borders. As I noted above, Arendt’s intention was not finding one either. However, the framework may shed light to certain structures in the society where complex legal, political, and social processes continue to be intertwined.
Notes
[i] The instruments of externalization, such as safe third country rules and readmission agreements, transform the obligations of states owed to refugees; hence it is a “rights management” regime (Gammeltoft-Hansen, 2011). Unlike this view which articulates the impact of externalization on refugees from a state’s perspective, I expound this problematique from a migrant’s standpoint. My articulation of a "human rights management mechanism" is migrant-centric and argues how migrants' rights are managed in a border regime constructed by the statist tools of externalization. As Bernd Kasparek, Nicolas De Genova and Sabine Hess (2015: 69) argue, "[t]his involves not only governmental logics but also the production of borders from and with a perspective of migration.” [ii] Author’s three-staged analysis of “the right to have rights” (the border, the law, the polis) indicated in this post originates from her master's thesis, Osso (2019). AuthorBerfin Nur Osso is a Doctor of Laws (LLD) candidate at the University of Helsinki, researching about the intersections of international refugee law, EU asylum law and policy, legal and political theory.
Cite As: Osso, B. N. (2022, Mar 25). “Access to Right to Have Rights”? An Invitation for a Novel Conversation. Portfoli(o)sso Blog. http://portfoliosso.weebly.com/blog/access-to-right-to-have-rights-an-invitation-for-a-novel-conversation.
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AuthorI am a Doctor of Laws (LLD) candidate at the University of Helsinki, researching about the intersections of international refugee law, EU asylum law and policy, legal and political theory. Drawing editorial cartoons is my passion. Archives
August 2022
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