The Barbed End of Human Rights

Where are human rights? This seems a relatively simple question; trying to formulate a plausible answer, it is anything but. Indeed, it is the most troubling question we confront today because it re-opens the corresponding questions of who ‘we’ are, of the relation between this ‘we’ and the humanity that is presupposed by human rights, and of whether ‘we’ and ‘human’ might mean the same thing. And, much is at stake here, not least for those who take flight with the expectation of going to a place where human rights do exist.

Full text, Borderlands, 2:1 2003. First published in Overland n.164, 2001. Also below the fold 

We are the detainees in Curtin camp. Derby. We are suffering
inside the camp. Where is human right.  
— Detainees from Curtin, note written during the hunger strike, February 2000.

barbed-wire1. Where are human rights? This seems a relatively simple question; trying to formulate a plausible answer, it is anything but. Indeed, it is the most troubling question we confront today because it re-opens the corresponding questions of who ‘we’ are, of the relation between this ‘we’ and the humanity that is presupposed by human rights, and of whether ‘we’ and ‘human’ might mean the same thing. And, much is at stake here, not least for those who take flight with the expectation of going to a place where human rights do exist. To the extent that successive governments have presented Australia to the rest of the world as a place where the rule of law, freedom of speech and human rights are adhered to (see for instance: DIMA, 1997), and insofar as such things are an important part of the national self-image, the question “Where is human rights?” is the astonished response to a promise that has not been fulfilled.

2. The changes to the Migration Act, tabled by the Labor Government in 1992, abolished the rule of law in this area by making internment of ‘designated persons’ extrajudicial and mandatory. The incommunicado detention of new boat arrivals (Poynder, 1997), the confidentiality contracts that camp staff must sign, as well as the institution of the Temporary Protection—whose terrible precariousness ensures that those released from the camps remain under threat of deportation for three years—all amount to the denial of freedom of speech. Yet, the immense distance between the promise contained in assertions of a commitment to certain values and the reality of the camps cannot, I think, be explained as an anomaly, or as a contradiction between ornate expressions and grim reality. There is something else at work here that transforms this particular discrepancy into a coherent view, albeit one so ill at ease that it can only be repaired through ritualised panics, hatreds and resentments or, at best, a therapeutics whose aim is to restore calm to the national psyche.

The im/materiality of human rights

3. In 1996, the bi-partisan Parliamentary Statement on Racial Tolerance was adopted. The first line reads: “[that] this House: reaffirms its commitment to the right of all Australians to enjoy equal rights and be treated with equal respect, regardless of race, colour, creed or origin.” The principal conditional phrase in this statement is not “regardless”; it is “the right of all Australians”. That is, ‘Australian’ is the condition and limit-point of being tolerated, having equal rights and respect. It is worth recalling that this statement was prompted by the emergence of One Nation and the major parties’ attempt to, symbolically at least, distinguish themselves from it. Having, then, shunned a vernacular xenophobia with the seemingly disinterested vocabulary of citizenship, governments merely affirmed their power to deny the human rights of people who are not ‘Australian’, whether by way of legal certificate of cultural norm, and in many instances both. This is not a move common only in Australia, even if the approach to undocumented migrants here has been particularly malicious. The problem was already in place before Australia ever existed.

4. From the beginning, the inherent dilemma of human rights doctrine has been the question of the source or foundation of right. Without restating a lengthy discussion, there have been two main answers to the question of ‘by what right’ there is such a thing as human rights: right is founded by the law or sourced to a divine power. Over time, the tension between these two positions has worked itself out in such a way that the former response has prevailed. The materiality of human rights is the question one is always confronted with, even if this cannot be reduced to its juridical answers—I will return to this. In other words, despite the derivation of human rights concepts from Christian doctrine, the question of the reality of human rights—of where they are—is unavoidable for anyone who hopes that the promise will not be constantly deferred to some hereafter.

5. Here our difficulties only intensify. Advocates of human rights cannot avoid the fact that human rights rely on a sphere of determination (for historical reasons, the nation-state) that, from the beginning, was less the assertion of human rights in any universalisable and inclusive sense than the inauguration of a power to grant rights and to not grant them according to a particular division: citizen/non-citizen. Put another way: whilst the 1789 Declaration of the Rights of Citizen and Man announced the Rights of Man, it did so on the occasion of the inauguration of the French Republic, an entity with the power to bestow rights and to determine their exceptions and limits in territorial terms—with terrible implications for those who take flight. This is true even for the American Declaration. For while it leans more toward a divine authorisation of human rights, it too is inextricably linked to the founding of a power that limits those rights on the basis of citizenship. That is, human rights become in practice, and more often than not in rhetoric, civil rights. In other words: “The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships—except that they were human” (Arendt, 1979:299). As McMaster notes in Asylum Seekers: Australia’s Response to Refugees, those who are not or cannot obtain citizenship are routinely “classified as aliens; they have no legal, political or social identity” and exist, from the perspective of nation-states, as non-persons, not human (2001:162). It is by no means anomalous, then, that those who are interned at Woomera have been referred to as ‘animals’, nor that the caging of undocumented migrants appears as self-evident to so many—this is nothing other than the exercise of an authority to de-humanise that sovereignty presupposes.

6. Therefore, the camps do not indicate some insufficiency in human rights law, the absence of a bill of rights or similar. The law—as the installation of a sovereign and jurisdictional authority—does not secure human rights; it both grants and denies them at its discretion. The Minister for Immigration was recently asked by a reporter (Insight, 2001), “Is there an anomaly with people who ended up with a piece of paper, citizenship, as opposed to those that didn‘t, being able to stay, and those that didn‘t getting deported?” His reply: “Well, it‘s not an anomaly, it‘s the law.” The fact of the law magically resolves the anomaly in favour of the law because there is no higher power than the law. This is the meaning of sovereignty, that no other power is superior, including the power (and right) of humanity. It is this discretionary pose of sovereignty that is put into play when people assume the right to declare who does or does not belong in Australia. Many times, this right is assumed by those whose belonging is apparently assured by a British colonial inheritance, a gesture indisputably ‘familial’, and therefore biological or racist. Other times, statements to this effect are made in an effort to prove just how much, and despite not being part of the colonial ‘family’, one does belong, that conversion is possible. In both instances, what is at issue is the personal appropriation of a morsel of sovereignty, and identification with its discretionary, boundary-setting authority.

Turning points

7. But if these limits were intrinsic to human rights declarations from the beginning, today we are forced to confront those in the unprecedented context of a globalised nationalism—with all the ambiguity in that phrase intact. Nation-states now cover every inch earth’s surface. As a global system, this is administered by various inter-national institutions, most notably the UN. The UN’s various conventions and protocols, far from providing a place for a universal humanity, secure the right of nation-states to discriminate. The UN is, after all, an assembly of nation-states. This discrimination is approved in many ways, not least by a classification system that permits one set of reasons for movement while criminalising another. Indeed, those movements that fall outside UN definitions of ‘refugee’ are those most clearly associated with capitalism, its processes and the role of its institutions, above all, the nation-state. This is increasingly so, and connected to the changing role of the nation-state at the end of the 20th Century.

8. In previous centuries, proletarianisation was characterised by a wave of rural-to-urban migration within Western Europe triggered by the enclosure of the commons. And, where large-scale movements across the globe occurred, they did so chiefly as part of an imperial advance into the ‘new world’. Only in the last twenty years have people moved in any significant numbers from Asia, Africa and Latin America to North America, Australia, and the EU countries, and only since after WWII have they moved in large numbers from ‘non-core’ to ‘core’ countries, thereby reversing the global colonial flows of previous centuries. Even so, around two thirds of overall movements still occur within and between ‘third world’ countries. This is increasingly circumscribed by inter-governmental agreements and United Nations’ population controls, as evidenced by the use of so-called ‘safe havens’.

9. Moreover, the migration that has always accompanied proletarianisation is now faster and larger than at any other time in history. When the UN’s High Commission for Refugees was established in 1951, those classified as ‘refugees’ were estimated at 1.5 million. In 1980, this figure had increased to 8.2 million, and by 1999 had soared to 21 million (McMaster, 2001:9). This figure does not include those fleeing starvation, land clearance programmes (including those demanded by the IMF and World Bank), the rivalries that have been fabricated and resentments aggravated by the imposition of austerity programmes. Nor do they include so-called internal migrations, such as those that have been occurring in China and constitute the most dramatic example of the enclosure in history. From 1978 to 1995, the area of land under cultivation in China decreased by 12.6 million acres as land was cleared of peasants and transferred to industrial production. In 1994, rural-to-urban migration was estimated at 60 million; by 1998, it was 80 million (Zhang). This is being repeated, albeit on a smaller scale, in Papua New Guinea, East Timor, Southern Africa, Mexico and elsewhere.

10. Prior to the 20th Century, the nation-state was not a world-encompassing system. Since then, “the nation-state and the nation-state system have rendered citizenship a universal requirement for the legal sanction of human existence” (Spybey, cited in McMaster, 2001:184-85). This is the context in which the widening net of the world market, the enclosure of the commons, proletarianisation and related migrations become immediately a question of border controls. This has transformed the political landscape into one where freedom of movement constitutes a direct challenge to the principal role of the nation-state in capitalism: the power to regulate labour supply and to establish the contours of labour market segmentation. Moreover, as financial and trade flows increasingly came within the purview of large credit agencies, financial markets and inter-governmental trade agreements, the role of the post-cold war state resolved down into that of controlling and, in many instances, criminalising the flows of people. This is the actual content of declarations of sovereign right today. As prior instruments of national capitalist management were ceded to international institutions or currency markets (by floating the currency, for example), national economic management became little more than the control and management of people as labour. This is why in 1992, the programme of privatisation, austerity and the massive increase in unemployment ushered in by the Labor Government’s ‘recession we had to have’ was accompanied by the tabling of the most vicious border laws since the White Australia policy. That is, less a scapegoating exercise than a separation of the hitherto twinned assumptions of Keynsian statecraft: management of money and labour (Mitropoulos, 1999).

The limits of citizenship

11. Nevertheless, it is not possible to pose the question as entirely one of citizenship or, rather, to assume that our question (where are human rights?) is answered by it. Asylum Seekers, an impressively thorough account of the connections between citizenship, ‘othering’ and the policy of extrajudicial internment (among other things), concludes by proposing the granting of “social citizenship” to asylum seekers. Engaging as this is, citizenship—whether ‘social’ or ‘full’—does not amount to the attainment of human rights. As McMaster rightly notes: “Universal schemes for citizenship have foundered on the necessarily local character of citizenship, a resource that is maintained while specific boundaries exist” (2001:188). Therefore, the very idea of universal citizenship is oxymoronic: any actual universality would make citizenship redundant. The only way an absolute correspondence between human and citizenship would be maintained is if death is the means to police the boundaries of this universal citizenship. This is the fatal conclusion of the militaristic humanitarianism mobilised during the NATO bombing of Serbia, and which forecasts the global state that would police a global citizenship.

12. Similarly, McMaster notes the analogies between the figure of the citizen and that of the consumer. Nevertheless, he does not explore the broader scheme in which this takes place: the commodification of people. Whatever else might be said of citizenship, it is analogous to the rise of the market in more than the reconstruction of personhood as consumerism. Citizenship, as a model, was carried forth by an emergent bourgeoisie and conceives of humans and human interaction in, above all, marketable or exchangeable terms. Citizenship contains the premise of an indifference to qualitative differences between atomised individuals whose quantifiable aggregation forms the basis of political decision and concepts of democracy (one person – one vote). This is the paradigm of the marketplace, where commodities, including humans treated as commodities, are brought into relation with each other (associated and exchanged) as quantitative differences measurable by money. Struggles to make citizenship more inclusive are indispensable, particularly if the processes of labour market segmentation (and divisions between workers) are at issue. Ultimately however, these struggles should be seen as a part of the historical process where humans are defined increasingly according to a logic of the commodity. Were humanity and citizenship to be made identical, and this identity enforced by a global state, those humans who constitute an opposition to commodification, or who resist being subsumed by such, would be the social equivalent of ‘rogue states’.

So, where are human rights?

13. There are ways to avoid this question, to set it aside as if it had not been asked or as if it has only been asked rhetorically—which is to say, as if its answer was already contained in clauses of various UN conventions, or the question itself merely polemical. This is what Mares, an ABC journalist, more or less does in Borderlines: Australia’s Treatment of Refugees and Asylum Seekers (2001). Borderlines is certainly worth reading for its dismantling of the slogans of ‘queue-jumper’, ‘bogus’ and ‘illegal immigrant’. But its eventual limits are established by its avoidance of the question—where are human rights?—from the start. The book begins with reports of the hunger strike at Curtin in February 2000, which includes this: “men would rise from the crowd to speak, to rouse protesters with the chant ‘Where are human rights? Where is freedom? We want freedom” (2001:10). Overall, Mares fascination with another aspect of this protest (that several of those who went on a hunger strike sewed their lips together), and with coming to terms with the media’s response to this, overwhelms his (and potentially the readers’) attention. What Mares implicitly depicts as an act of self-muzzling was perhaps rather an attempt, however futile, to deter the force-feedings that were a routine response to determined hunger strikers in the past—a decision, in other words, that death was preferable to internment. Indeed, given that the detainees did communicate their demands and their questions, Mares interpretation of the protest implicitly serves to reconstruct it as an enigma, whose explanation inspires the journey that is Borderlines.

14. But it is a journey whose limits were already signalled by setting the question of human rights aside, and which re-appear later, when Mares admits with obvious discomfort that he finds it difficult to not assert limits to human rights, and to do so at some arbitrary and unexamined numerical point. His comments are worth noting: “the minister laughs. He knows he has found the weak point in my position—a loose end that cannot be neatly tucked away. … But where would I, as a heart-on-sleeve liberal, draw the line on people seeking asylum in Australia? … I am forced to confront the fact that the imagery of waves and floods does not simply wash past and leave me untouched; deep down I share some of the popular fear of invasion, if only on a subliminal, irrational level.” He avoids the chance to explore this fear because he consoles himself with the thought that the prospect of tens of thousands of asylum seekers is “abstract and irrelevant” (2001:151). Had he accompanied the question of ‘Where are human rights?’, he might instead have asked himself (and the reader) whether, if Queensland was steeped in famine for a decade, for instance, would he still have had invasion nightmares when Queenslanders began making their way south. Does the recent rural-to-urban wave of migration that has been occurring in Australia conjure up the idea of a flood? Who do we include in ‘we’, in our idea of who is human and who is not?

15. One asylum seeker detained at Villawood has eloquently said, “If I knew that they (Australians) were so inhuman and did not value a human being, I would never have come” (Reuters, 2001). This person tells us where human rights are: in one’s ability to recognise the humanity in another, without the demand that they look, speak, act like us, and more importantly, without delegating this ability to recognise another’s humanity away to transcendental authorities whose structures presuppose alienation. Whether God or the law—or indeed capital—are decreed as sovereign, in each case this sovereignty consists not in the recognition of universal human rights but in the stipulation of who has the right to be regarded as human, and who has not. In this way, there is always a space created for those who are excluded from the community and from definitions of humanity: non-citizen, non-believer and the uncommodifiable. So, the troubling answer to the question ‘where are human rights?’ is this: we kept company with humanity only once, on the day of its internment.



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