Larking, Emma --- "Human Rights and the Principle of Sovereignty" [2004] AUJlHRights 15; (2004) 10(2) Australian Journal of Human Rights 15

Human rights and the principle of sovereignty: a dangerous conflict at the heart of the nation state?

Emma Larking*

The coercive power of the state in liberal democracies is justified largely by the claim that the state is the best mechanism for the protection of individual rights. Individual rights are, in turn, founded on assumptions about universal freedom and equality. But if this is the case, how can liberal states disavow the freedom and equality of people outside their borders? Most try not to, for example, by ratifying international instruments such as the Universal Declaration of Human Rights. Yet their pursuit of policies guided solely by concern for the so called ‘national interest’ can lead in effect to behaviour that undermines basic freedoms. Where this happens, a poisonous hypocrisy enters the bloodstream of the nation state, and infects the institutions established to protect the freedom and equality of its own citizens.

In this paper I argue Australia’s detention of asylum seekers, and a range of recent amendments to the Migration Act 1958 (Cth), are invidious steps along the path to a government which openly and aggressively denies the freedom and moral equality of individuals both here and elsewhere.

Constitutional democracies claim to respect human rights and affirm the freedom and equality of all people, but they also claim the sovereign right to develop policy in their own interests, often in ways that have negative consequences for outsiders. Where obligations to non-citizens are recognised, they are assumed for the most part to be charitable in nature, not duties of justice. In countries like Australia we succumb, though, to a dangerous hypocrisy when we affirm the freedom and equality of all people while at the same time relying on the principle of sovereignty to privilege our fellow citizens. Relationships of partiality within modern nation states function to entrench massive global inequalities. Defending these relationships amounts to a denial of universal freedom and equality, and this denial degrades the institutions on which we, as citizens of constitutional democracies, rely to protect our own individual freedom and equality. The damage our institutional protections suffer is most vividly illustrated when outsiders, such as asylum seekers, are brought into direct contact with our domestic institutions, and are treated as a special category of person, outside the protection of the law.

A genuine commitment to universal freedom and equality requires not only that the institutions established within constitutional democracies to protect these values be strengthened, but also that we work towards the establishment of institutions of global distributive justice.¹ Constitutional democracies must abandon the sovereign assertion of a right to act primarily in the interests of their own citizens. The partiality we have been encouraged to show our fellow citizens is not a commendable trait. Rather, it encourages a callous indifference to the plight of outsiders, and is based on the assertion of sectarian values. Our world is now, if it was not always, one world, and we are members of a community of humankind. The breadth of this community does not imply the destruction of rich local cultures and identifications — which themselves provide some of the necessary conditions for human flourishing. Conditions of greater global distributive justice will instead lead to the strengthening of communities, and greater cultural diversity, because majority cultures will not continue to be unfairly enriched at the expense of minority cultures.

In the meantime, Australia is obliged to welcome a fair share (based on its considerable capacity to support more people, and assessed in relation to other developed nations who similarly claim to respect human rights) of asylum seekers. That we must do so is not a matter merely of charity, or good will. If we allow the erosion of the rule of law, and other institutional embodiments of the principle of equality, and at the same time valorise the ‘national’ interest, we fall prey to the idea that ‘what is right is what is good for the (Australian) people’. The result is a tendency to value the whole (the nation) as distinct from its parts, only to discover, as so many citizens of Nazi Germany discovered, that the good of the whole may justify the sacrifice of many of its parts; and that the category of people who count as genuine members of a nation may be almost infinitely contracted.² To understand the danger we are in, it is necessary to return to our political foundations, and to attempt to construct a genealogy of human rights and sovereignty in modernity.

A turning point in history: man as the source of law³

We hold these truths to be self-evident:

That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ...

Declaration of Independence, United States’ General Congress, July 4, 1776.

Men are born and remain free and equal in rights ... The aim of all political association is the preservation of the natural and imprescriptible rights of man ... Every citizen has a right to participate ... in [law’s] foundation. [Law] must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.

Declaration of the Rights of Man and of the Citizen, National Assembly of France, August 26, 1789.

The stirring and well known words of the French and American declarations express the basic assumptions on which constitutional democratic governments are founded, and which are used to justify their coercive power. Men are by nature free and equal. The role of government is to protect the basic and inalienable rights of individuals. No person or entity has a divine or inherent right to govern, and government must be justified in the interests of all citizens, who are equally entitled to contribute to government. This conception of the purposes of government has its source in Lockean social contract theory, and the English constitutionalism to which, in The Second Treatise of Government, Locke gave expression.⁴ Importantly for our purposes, Locke’s understanding of human freedom and equality, and the rights which humans may claim by virtue of their basic moral equality, was fairly undemanding. Locke argued no man has innate authority over other men, for all men are ‘furnished with like faculties’ and share in ‘one community of nature’ (Locke 1952, 6). All that follows from this, however, is that men are perfectly free ‘to order their actions and dispose of their possessions and persons as they think fit’ (4) — in so far as it is possible for them to do so without intruding upon other individuals’ equal freedom. The institution of government serves primarily to ensure ‘the mutual preservation of [men’s] lives, liberties, and estates’ (71). Locke perceived no role for government in the provision of welfare, and indeed was prepared to allow constitutional government a significant degree of licence in its intrusion upon individual liberties in ‘the common good’. Also notable about Locke’s account, though of course not surprising given its historical context, is its failure to recognise women as ‘free and equal’. I will return to these features of Locke’s theory below: while their significance should not to be understated, it is also important to remember that Locke, with other social contract theorists of the 17th century, was revolutionary in proclaiming the foundations of government in the rights of man, and that in doing so he importantly extended the boundaries of human freedom.

Locke’s revolutionary impulse was in the 18th century given powerful voice in the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. The titles of the declarations serve to underline another crucially important feature of Locke’s justification of political authority. The effect of Locke’s theory was to transform ‘natural’ rights — rights which follow from the fact all men are God’s creation, and share in His nature — into political rights, or rights which are defensible by virtue of man’s membership of an appropriately constituted political community.⁵ Locke expresses the rights of man in universal and impartial terms, and the role of government, as an institution, is the protection of human rights as such; but justice relations, and the obligations which follow from them, are assumed to be internal to states, within which the role of particular governments is to protect the rights of particular people — not simply as an arbitrary collection of individuals, but as ‘a people’. So the Declaration of Independence claims the right of ‘one people’ to institute a new government for its own protection.⁶ The French declaration is more explicitly nationalistic: ‘The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.’⁷ In Locke, men agree among themselves to leave the state of nature and form a political society, and only subsequently found their legislature, thus the unity of ‘the people’ as ‘one entire and independent body’ precedes government (Locke 1952, 119-120).⁸ For Locke and his political successors it was critical to emphasise the unified nature of ‘the social body’ because traditional institutions of allegiance could no longer be relied upon to secure the stability of the political community (I will say more about this below). Furthermore, the focus of their concern was the possible tyranny of government, the need to ensure government acts in the interests of its citizens, and the right of citizens to rebel against leaders who no longer govern in the public interest. By vesting sovereignty in the people or the nation, understood as a political association in which every citizen is equal before the law, The Second Treatise and the declarations attempted to guard against the internal seizure of power by an individual or group. But the sovereign principle has an external as well as an internal aspect; an aspect which had received international recognition some 40 years before publication of The Second Treatise.

Sovereignty’s external aspect

In 1648 the Peace of Westphalia ended the Thirty Years’ War by placing the states of Western Europe on an equal footing and affirming their mutual autonomy.⁹ As it has developed as a principle of international law, sovereignty recognises the competence of states in matters of internal and foreign policy, and accords them equal standing in international society. The principle of non-interference, which constrains states from intervening in what are said to be the ‘domestic affairs’¹⁰ of other states, is treated as a concomitant of the recognition of states’ legal competence. States are thus conceived as autonomous decision makers, and are empowered both to act in their own interests (under certain minimal constraints) and to regulate their internal affairs as they see fit. At the time Locke wrote The Second Treatise, however, the concept of the sovereign autonomy of states was still in its infancy in Europe, and its eventual application to the entire globe barely conceivable. Yet when it was formed in June 1945, the United Nations took the sovereign equality of its members as its founding principle, and with the eventual collapse of the European nations’ colonial empires, sovereignty’s ascendancy seemed complete. In our era the International Court of Justice has called sovereignty ‘the fundamental principle on which the whole of international law rests’ (ICJ Reports 1986, para 263, quoted in Hubert & Weiss 2001, 6).

The sovereign state system as we know it admits of no outside; it leaves no social, political, or private space untouched by the relationships of coercive authority and partiality which it enforces. The sovereign state into which one is born, or the condition of statelessness into which one may be thrust, has a pervasive influence on one’s life prospects, and the rights one may enjoy. Sovereignty has effectively transformed the rights of man into the rights of the citizen,¹¹ and the result has been to deprive individuals of rights in those contexts in which they find themselves outside the protection of a sovereign state, or within a state which abuses their rights, or is unable to recognise them. In practise this result has been tempered to some degree by an increased willingness to look behind the veil of sovereignty in international law. Thus the UN has been increasingly prepared to treat a state’s positive abuse (as opposed to patent neglect) of its citizens’ human rights as a threat to international peace and security such as to warrant intervention in its affairs under Chapter VII of the UN Charter (Hubert & Weiss 2001, 7-10). It is also increasingly common to attempt to strip sovereignty of its external aspect, recasting it in the language of ‘popular sovereignty’ as a doctrine of political legitimation on universal principles.¹² While this might mean sovereignty as a principle of international organisation is in less obvious tension with the idea of universal freedom and equality, the conflict between the two remains embedded in the relationships of partiality which sovereignty supports, and in the degree to which it is still possible for individuals to find themselves outside a rights recognising polity, and without hope of being accepted into such a polity.

Human rights and sovereignty in conflict

How has it been possible to ignore the disjunction between the affirmation by constitutional nation states (and indeed, by states globally, through the UN) of universal human rights, and states’ reliance on the principle of sovereignty? The reasons lie partly in the Lockean construction of human rights, and partly in the supposed importance of sovereignty as a defence for smaller or less powerful states against the imperial ambitions of larger states. While the latter consideration is certainly a weighty one, we should not attribute solely to the concept of sovereignty benefits which might equally, and less problematically, be achieved by a more comprehensive account of international justice — an account which requires global distributive justice. Such an account would prevent the concentration of power in particular states (or non-state entities) on the basis of which these states or entities are able to engage in predatory or oppressive behaviour. The former consideration involves a return to Locke’s account of the inception of civil society. In the pre-political ‘state of nature’ all men enjoy commensurable rights, and each is entitled to punish those who impinge on the rights of others, but many inconveniences follow from the lack of an organised procedure for punishing transgressors, and from the fact that men are judges in their own cause (Locke 1952, 9). No man in the state of nature can feel secure in his life, liberty or ‘estates’ (70). It is thus in the interests of all individuals, who also have a natural ‘love and want of society’ (57), to agree among themselves to form a commonwealth within which each surrenders his right to be a judge in his own cause, and submits to the authority of a government charged with protecting each person’s rights, and ruling in accordance with ‘the common good’.

In developing his account of the foundations of sovereign power, Locke¹³ was attempting to meet the contingencies of a particular historic moment. He needed to provide a justification for political authority suited to a world in which feudal structures were disintegrating, the divine right of kings was being questioned, and religious pluralism represented an additional threat to the stability of government.¹⁴ He required an account of political power capable of integrating the humanist thinking of the Renaissance, with its valourisation of the creative and rational powers of the individual — who, as a result of these powers, could now be seen in abstraction from social class or background, and thus was less reliably constrained within traditional hierarchies. The concept of the social contract seemed to provide a mechanism for securing the stable government so desperately needed in England in the aftermath of the 1688 Revolution, and on the Continent in the aftermath of the Thirty Years War.¹⁵ In order to be able to establish a new foundation for government in the consent of its people, however, Locke needed to show that the original members of the body politic were genuinely free to accede to or reject the new association, and that subsequent generations are free to leave it if they so choose.¹⁶

In this respect Locke relies on a conception of resources as plentiful, and the world as partially uninhabited. He suggests any individual who does not consent to government is free ‘to go and incorporate himself into any other commonwealth, or to agree with others to begin a new one in vacuis locis, in any part of the world they can find free and unpossessed’ (Locke 1952, 69). One might argue that Locke intended his account of the inception of political society as a metaphor,¹⁷ designed to make vivid the circumstances in which it is rational for individuals to obey their government. However, his ability to ignore the tension between the universalism of the principle that men are born free and equal, and the partisan interests that governments serve, depends on the ahistoricism of his ‘state of nature’, metaphorical though that state may be. Through the fiction of the ‘state of nature’, Locke masks the reality inherent in human societies. The institution of property, and the rights claimed by governments who control access to and conditions within certain territories, are based on histories of violence and dispossession. Most obviously, the parts of the world Locke described as ‘unpossessed’, were inhabited and crucial to the life and culture of myriad peoples, so the establishment of ‘new’ political societies in these lands could only be achieved by violent means. Equally in Europe, the borders of states represented the contingent outcome of historical struggles and conquests.

Nevertheless, to be fair to Locke’s conception, the tension between the universal principle of freedom and equality and the principle of sovereign autonomy was easier to ignore in a world in which borders were relatively porous, and immigration restrictions as we know them did not exist.¹⁸ At this time as well, the primary contact between states was likely to be of a military nature. So by recognising the freedom of states, but requiring them to respect the equal freedom of other states, the Peace of Westphalia led to important protections for small or otherwise vulnerable states. In an era in which global economic interactions are as significant as military conquest in determining the ability of governments to protect the rights of their citizens, however, the principle of sovereignty — by sanctioning the pursuit of policy only in the national interest, and by paradoxically failing to treat economic interventions as hostile intrusions upon the ‘domestic affairs’ of states — has become a vicious means of depriving some people of basic rights recognition. As Buchanan argues, we live in a world in which the basic institutional structures which impact on peoples’ life prospects are not internal to nation states, but operate globally.¹⁹ In this context, treating principles of justice as internal to states, and allowing states to pursue policy only in the interests of the freedom and equality of insiders, is not only unwarranted, but undermines the very foundations of the constitutional nation state. It involves the implicit assertion that some people are ‘more equal’ than others, and nowhere is this more clear than in the case of the developed world’s treatment of asylum seekers. What is chilling about this treatment — aside, that is, from the misery and suffering it perpetuates, and the failure to treat all humans as equal which it involves — is the fact that the world has seen such phenomena before.

The European stateless in the interwar years

In The Origins of Totalitarianism, Arendt describes the plight of millions of refugees and stateless people in Europe in the interval between World Wars I and II. The redrawing of Eastern European borders following World War I, and a series of revolutions which forced national minorities out of their countries of birth, led to huge people movements in the interwar years. All discussions of the refugee problem, Arendt says, ‘revolved around this one question: How can the refugee be made deportable again?’ (1986, 284). Repatriation was often impossible — not, as Arendt says, ‘because of consideration of the stateless person ... but because neither the country of origin nor any other agreed to accept the stateless ...’ (283). The response of the Western European constitutional democracies, for whom the stateless represented ‘an anomaly ... within the framework of the general law’ (Jermings 1939, quoted in Arendt 1986, 283) was to treat the stateless as outlaws, and in effect to hand responsibility for them to the police. Arendt claims:

... the police in Western Europe ... received authority to act on its own, to rule directly over people; in one sphere of public life it was no longer an instrument to carry out and enforce the law, but had become a ruling authority independent of government and ministries. Its strength and its emancipation from the law grew in direct proportion to the influx of refugees [Arendt 1986, 287].

... long before the outbreak of [World War II] the police in a number of Western countries, under the pretext of ‘national security’, had on their own initiative established close connections with the Gestapo ... , so that one might say there existed an independent foreign policy of the police. This police-directed foreign policy functioned quite independently of the official governments ... [Arendt 1986, 288].

It resulted, Arendt argues, in a dangerous undermining of those fundamental values supposedly enshrined by the nation state. The citizens of Western European countries were encouraged either to ignore the plight of the stateless, or to treat the stateless as a danger to be dealt with, as forcefully as possible, by the police. The power this gave the police, and the lack of concern it evinced for the basic principle of equality before the law, helped create favourable conditions for the Nazis in the countries they would occupy during World War II. As Arendt puts it:

That the Nazis eventually met with ... disgracefully little resistance from the police in the countries they occupied, and that they were able to organize terror as much as they did with the assistance of these local police forces, was due at least in part to the powerful position which the police had achieved over the years in their unrestricted and arbitrary domination of [the] stateless and refugees [Arendt 1986, 289].

The developed world’s continuing abuse of refugees’ rights

I am going to draw some comparisons now between the European treatment of asylum seekers in the interwar years, and the treatment of asylum seekers in the Australian context. Before I do this, however, it is worth noting that the Australian Government is not blind to the difficulties raised by steps that undermine some peoples’ freedom and equality in a country that supposedly affirms the universal freedom and equality of individuals. Repeatedly it claims to be a government that honours human rights. However, it justifies its actions in relation to asylum seekers by reiterating that dangerous refrain: it is entitled to develop policy ‘in the national interest’. Like other constitutional democracies, though, our fundamental interests must be firmly located in truly universalising the principle of freedom and equality. By way of an aside, Philip Rudge, former General Secretary of the European Council on Refugees and Exiles, a non-government organisation committed to promoting the rights of refugees and asylum seekers, is critical of many supposedly ‘realistic’ accounts of ‘the national interest’. ‘In the course of representing [the Council] at international fora over the years,’ he says:

... I have received many lectures about the realism, the realpolitik of the States and the unrealism, even the irresponsibility of the NGO sector. It seems to me self-evident that the true realpolitik of the modern world, if we are to survive, is tolerance, pluralism, bridge building rather than protectionism, fear and all the defensive aspects of the fortress mentality that we currently live with. Why do the strong States persist with policies that are demonstrably inhuman, very problematic legally and do not work anyway? [Rudge 1998.]

There are a number of ways of answering Rudge’s rhetorical question. Nehal Bhutta suggests one: we live in a world of globalised markets, in which transnational corporations wield huge amounts of power, and in which governments have devolved significant control to non-democratic entities such as the International Monetary Fund (IMF) and the World Bank. Adopting repressive border control measures, and loudly claiming to be defending one’s national sovereignty by doing so, is a very obvious way for a government to demonstrate to its electorate that it remains in control, and is dutifully looking after the national interest.²⁰ As Tony Blair emphasised some years ago in a leaked memo to his staff, the issue of asylum provides opportunities for a political party to characterise itself as ‘tough’, and as ‘standing up for [the nation]’. Blair told his staff, ‘asylum ... may appear unlinked to patriotism, but [it is linked,] partly because [it is a] toughness issue ...’.²¹ I should add that Blair’s willingness to capitalise on the plight of asylum seekers continues unchecked. Recently he suggested ‘Britain could drop its obligations to refugees under European human rights legislation’. He claimed ‘concerns about terrorism had led the Government to consider withdrawing from the European Convention on Human Rights’ (Hinscliff et al 2003, 11).

In what respects has the Australian Government evinced a similar willingness to use asylum seekers for political purposes, and in doing so, to abuse basic principles of democratic governance? In ways which echo the role, as it is described by Arendt, of the Western European police in dealing with stateless people between both world wars, the Australian Government has given considerable licence to private corporations, who run Australia’s detention centres, and to the navy and military. Licence to act, I might add, which has been marked by a startling lack of transparency and accountability. Following the boarding by Australian Special Forces of the Tampa in August 2001, and the inauguration of the so called ‘Pacific solution’, the navy commenced ‘Operation Relex’ — a detection and interception program designed to prevent boats carrying asylum seekers from entering Australian waters. The navy’s object is to intercept, board, and return vessels to Indonesia. While the goal itself is deplorable,²² the manner in which it is pursued is also seriously troubling. A recent Human Rights Watch Report catalogues claims by asylum seekers that navy personnel beat them with electric cattle prods in order to force them to do as they were ordered (Human Rights Watch Report 2002). There are many other instances, not least the circumstances surrounding the drowning of more than 300 people on board the boat known as ‘Siev X’, which demand urgent investigation.

Another area in which the Australian Government has abdicated its commitment to institutions enshrining freedom and equality is in its longstanding mandatory detention (imprisonment) policy. In 1992, the Labor Government introduced changes to the Migration Act 1958 (Cth) which critics claim ‘abolished the rule of law in this area by making internment of “designated persons” extrajudicial and mandatory’ (Mitropoulos 2001, 51).²³ The mandatory imprisonment of asylum seekers, very often for long and indeterminate periods, is an abuse of their right to liberty. A 2001 report of the Commonwealth Ombudsman noted:

The loss of liberty and personal freedom associated with detaining persons ... is akin to the situation of people held in prisons. However, [compared to prison inmates] ... immigration detainees appear to have less ... rights and are held in an environment which appears to involve a weaker accountability framework ... [Australian Commonwealth Ombudsman 2001, 3, quoted in Nicholas 2002, 12].

Progressive changes to the legislation introduced by Labor in 1992 meant courts eventually had very ‘little right to review migration decisions and [the] circumstances of detention’ (Brennan 2002, 14). As a result Australia was, in 1997, found by the UN Human Rights Committee (UNHCR) to be in breach of art 9 of the International Covenant on Civil and Political Rights (the Covenant), which provides in part that no one should be subject to arbitrary detention.²⁴ The case concerned a Cambodian asylum seeker who had been in detention for four years. The Australian Government responded by denying the particular circumstances of detention breached the Covenant. It decided to ignore the Committee’s findings on the basis they were not binding upon it.

A recent decision of the United Kingdom Court of Appeal considered the lawfulness in the UK of imprisoning a group of asylum seekers for more than 10 days. The legal situation in the UK is somewhat different to that in Australia — although Tony Blair seems intent on bringing it into line with Australia — because the UK is currently a signatory of the European Convention on Human Rights (the Convention), and incorporated the Convention’s provisions in its Human Rights Act 1998. Nevertheless, the Court of Appeal’s comments are worth considering. While the Court found the imprisonment of the asylum seeker was in this case lawful, it affirmed the importance of making detention decisions subject to ‘strict scrutiny from the courts’ (Brennan 2002, 17).²⁵ The Court said, ‘The policies that have constrained, and still constrain, the exercise of statutory power to detain aliens ... result from a recognition, that is part of our heritage, of the fundamental importance of liberty’ (Brennan 2002, 17).

Unfortunately, this heritage is not one which the current UK Government has any desire to honour, and nor is it a heritage which the Australian Government feels compelled to protect. In a series of bills introduced after the Tampa incident the government sought, among other things, to further curtail the already limited instances in which asylum seekers may appeal from a decision of the Refugee Review Tribunal to the Federal Court. The Bills introduced a restrictive definition, to be applied in all Australian asylum decisions, of what counts as ‘persecution’ for the purposes of the definition of a refugee in the Geneva Refugee Convention 1951.²⁶ They imposed mandatory sentences for people convicted of people smuggling, and excised a number of Australian territories from Australia’s migration zone for the purposes of unauthorised arrivals. Introduced into the House of Representatives on 18 September 2001, they were enacted with bipartisan support on 27 September 2001. In relation to the speed with which the Bills were rushed through parliament, and their general tenor, Professor Alice Tay, then President of the Human Rights and Equal Opportunity Commission, commented:

It is a disappointing departure from established Australian legislative tradition that changes to fundamental human rights guarantees could be made in such haste without extensive consultation and public debate ... The rule of law is one of the basic tenets of democracy. These proposed amendments could set a dangerous precedent [Human Rights and Equal Opportunities Commission 2001].

The conundrum into which the Government is brought by its explicit affirmation of universal human rights and its contemporaneous denial of basic rights to asylum seekers is resolved by it in a time honoured tradition. It strips asylum seekers of their humanity. And by doing so, the Government encourages its citizens to adopt the perfidious position of thinking some people are more truly human, and therefore better entitled to freedom and equality, than others. Thus John Howard wonders ‘What kind of people throw their children into the sea for their own ends?’ (with reference to that infamous incident which has now been shown never to have occurred). ‘What kind of people destroy the camps in which they are imprisoned, and sew their lips together?’ His answer is that these people are not like us. Not Australian, and not our equals. I would like to propose an alternative answer. Asylum seekers are people like ourselves. Unlike ourselves, though, they are people who have been openly deprived of their rights. Their right to life; their right to liberty; their right to the pursuit of happiness. But most importantly, as Arendt would argue, they are people who have been deprived of the right to speak, and to be heard; to act, and to have an impact.²⁷

They are people whom we have denied a place among that privileged, but not yet universal, community; the community of human beings who are recognised as having certain inalienable rights. Clemenceau said rights require a community, a group of people within which it makes sense to say that to infringe the rights of one is to infringe the rights of all (Arendt 1986, 106). But a genuine community of rights holders is not a creature of place; it is the product of moral dialogue, and a politics of engagement. It grows, if it grows at all, out of a theoretical belief that human differences, where they are differences arising simply from the accident of one’s birth — so differences of sex, race, birthplace, and physical and mental aptitudes — are not morally significant. This is a theoretical belief that very many people around the world now accept. It is the same belief which spurred, in conjunction with less elevated considerations, the search for a new way of justifying the role of government in the 17th century; which is at the heart of the constitutional democratic state; and which stimulated a defence of the sovereign equality of states at the time of the founding of the UN. However, this belief is not on its own enough to motivate recognition of all humans as members of a genuine community of rights holders. For that we need something beyond the theoretical. We need sympathy, friendship, or love. Such feelings arise only through thinking about other human beings as individuals, rather than as members of groups. It involves a willingness to make connections with them, and to explore what we share with them. Such feelings are stunted by fear, by alienation, by distance. Hiding peoples’ faces, and caging them behind barbed wire, is a good way of preventing such feelings developing. But it is not a good way of honouring those feelings — of sympathy, friendship and love — which we know to be central to what makes life worth living, and to what it means to be human.

There will be those who argue citizens of states must be entitled to privilege their fellow citizens, and to differentiate themselves from outsiders, if those citizens are going to continue to support and contribute to the state’s welfare structures — in other words, if citizens are to have a sense of obligation to their fellow citizens. It may also be argued that loyalty to one’s fellow citizens is an admirable quality, and reflects the importance to individuals of living in secure cultural contexts — whose security, it is implied, depends upon exclusion. While loyalty may in some cases be a worthy trait, it should never excuse behaviour that has the effect of entrenching vicious power imbalances. In the real world the principle of sovereignty sanctions the massive inequality in resource distribution between the developing and the developed world. This is not a principle that sits comfortably with the constitutional democratic affirmation of universal freedom and equality. Genuine support for universal freedom and equality, and thus support for global distributive justice, need not undermine the vitality of communities, but these are communities conceived not as ‘nations’, not as ‘a people’, but as sites of dialogue, debate and contestation. They do not depend on differentiating insiders and outsiders, but on a commitment to genuinely universal ideals. l

* Centre for Applied Philosophy and Public Ethics, The University of Melbourne. I am grateful to the ‘Rights of Strangers’ conference participants for their helpful comments on an earlier version of this paper. I am also very grateful to Ian Hunt, Karen Jones, Andy Schaap, Janna Thompson and my anonymous reviewer for their insights and suggestions.

1 I do not have the space here to discuss what sort of institutions a satisfactory account of global distributive justice would require. Interesting work is being done in this area, however, by philosophers such as Charles Beitz and Thomas Pogge.

2 Hannah Arendt refers to Hitler’s pronouncement, ‘right is what is good for the German people’ (Deutsch 1986, pp 275, 279). She says: ‘crimes against human rights, which have become a speciality of totalitarian regimes, can always be justified by the pretext that right is equivalent to being good or useful for the whole in distinction to its parts ... Hitler’s motto that “Right is what is good for the German people” is only a vulgarized form of a conception of law which ... identifies what is right with

the notion of what is good for — for the individual, or the family, or the people, or the largest number ...’ (298-299). Arendt is sceptical of the power of the rule of law against the lure of particularised interests ‘once the absolute and transcendent measurements of religion or the law of nature have lost their authority’ (299). I think her scepticism is too pessimistic, but to answer it we need a much fuller account of human value, perhaps located in the consciousness of mutual dependence, as well as dependence on the natural world.

3 ‘The Declaration of the Rights of Man at the end of the eighteenth century was a turning point in history. It meant nothing more nor less than that from then on Man, and not God’s command or the customs of history, should be the source of Law’ (Arendt 1986, 290). I argue the turning point comes earlier, in Locke’s The Second Treatise of Government, first published in 1690.

4 The Declaration of Independence was written by Thomas Jefferson, but ‘[s]o close is the Declaration of Independence to Locke in form, phraseology, and content, that Jefferson was accused of copying the Second Treatise. This ... he did not do. But the ideas of the Declaration are those ideas of English constitutionalism to which Locke had given expression’ (Peardon 1952, xx). While it has been credited to other authors, the French declaration is most commonly thought to have been written by the Marquis de Lafayette, ‘with help from his friend and neighbour, American envoy to France, Thomas Jefferson’ (Murphy n.d.).

5 In Locke, the laws of men do not replace the laws of nature, but it is only the laws of men which provide reliable redress for breaches of the laws of nature: ‘The obligations of the law of nature cease not in society but only in many cases are drawn closer and have by human laws known penalties annexed to them to enforce their observation’ (1952, 77). In chapter 9 of The Origins of Totalitarianism, Arendt engages with the significance of the Declaration of the Rights of Man, and comments on its transformation of rights guaranteed by ‘social, spiritual, and religious forces’ into rights ‘guaranteed ... by government and constitution’ (1986, 291).

6 ‘When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another ...’ (Declaration of Independence).

7 Article 3, Declaration of the Rights of Man.

8 Locke says the ‘first and fundamental act of society’ is the constitution of the legislature, but this provides for ‘the continuation’ of a union which has already been constituted (1952, 120). Almost the only way in which the union of the political community is dissolved is by conquest (119); the dissolution of the legislature leaves the people united, and free to ‘constitute ... a new legislature’ (120).

9 The Peace was forged through the Treaties of Osnabruck (between the Roman Empire and Sweden), and of Munster (between the Empire and France, and their respective allies) (Gross 1984, 4).

10 A state’s ‘domestic affairs’ ‘include the choice of political, economic, social, and cultural systems and the formulation of foreign policy’ (Hubert & Weiss 2001, pp 5-13).

11 Those rights which were once ‘natural’: see my discussion in footnote 4.

12 Thus in a 1999 article in The Economist, Kofi Annan argued: ‘State sovereignty, in its most basic sense, is being redefined ... States are now widely understood to be instruments at the service of their peoples, and not vica versa. At the same time individual sovereignty — by which I mean the fundamental freedom of each individual, enshrined in the Charter of the UN and subsequent international treaties — has been enhanced by a new and spreading consciousness of individual rights. When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.’ Hubert and Weiss comment, ‘For Annan and others, sovereignty is not becoming less relevant; it remains the ordering principle of international affairs. However, it is “the peoples” sovereignty rather than the sovereign’s sovereignty’ (2001, 8, quoting from Annan 1999, 49-50).

13 And his contemporary, Hobbes. Here I concentrate on Locke because it is his account of government which informs the liberal constitutional tradition.

14 The Reformation had thrown societies in which the prospect of eternal salvation or damnation had, for most people, real potency, into turmoil. To provide a very cursory example: allegiance to Rome had been severed in Britain under Henry VIII, re-established under Mary, and severed again under Elizabeth (with significant consequences for devout members of the public of either persuasion). In Europe the 1648 Peace of Westphalia allowed heads of state to dictate their country’s religion, thereby recognising the impossibility of achieving religious hegemony in Europe. The Peace also gestured toward the principle of freedom of conscience by providing some protections for religious minorities (Gross 1984).

15 Locke wrote his Two Treatises of Government in vindication of the English Revolution, and, as he says in his preface, ‘to make good [King William’s] title in the consent of the people’ (quoted in Peardon’s ‘Introduction’, 1952, p x). The social foment which provided the context and spur for Locke’s work extended into Western Europe, where, as I noted above, the Thirty Years War had been concluded some 40 years earlier by the Peace of Westphalia, which marked the end of religious hegemony in Europe.

16 Remaining in the territory of a constitutional government implies tacit consent to the authority of that government (Locke 1952, 68).

17 A reading which I do not think is justified by the text: see ch VIII.

18 ‘Movement was free for those whose status was free ...’ (Dummett & Nicol 1990, 9).

19 Buchanan is considering Rawls’ use, in A Theory of Justice, of the concept of a ‘basic structure’, and Rawls’ claim the basic structure is the primary subject of justice. Buchanan says, ‘If there is a global basic structure — a set of economic and political institutions that has profound and enduring effects on the distribution of burdens and benefits among peoples and individuals around the world — then surely it is a subject of justice and a very important one.’ He concludes there is a global basic structure (Buchanan 2000, 705).

20 This is an argument which Nehal Bhutta makes (n.d.).

21 Memorandum from ‘TB’ of April 29, 2000, published in The Times, 27 July 2000, and quoted in Bhutta: 4.

22 It is a blatant attempt by Australia to evade its commitment to refugees under the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol), while still claiming to be a country which respects human rights.

23 See also Brennan (2002, pp 11-25) for his account of the UNHCR decision which supported this characterisation.

24 Australia was found by the UNHCR to be in breach of both art 9(1), which prohibits arbitrary detention, and art 9(4) requiring detention decisions to be reviewable (Brennan 2002, 15). In October 2002, the UNHCR, in C v Australia, again found Australia to be in breach of art 9(1) and (4) of the Covenant (CCPR/C/76D900/1999). I am grateful to Dr Susan Kneebone for referring me to this decision.

25 With reference to Saadi & Ors v Secretary of State for the Home Department (2001) EWCA Civ 151, No 67.

26 The 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol) defines a refugee as a person who is outside their country or nationality or their usual country of residence, and is unable or unwilling to return or seek the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The new legislation defined ‘persecution’ as serious harm to the person involving systematic and discriminatory conduct.

27 See Arendt’s discussion of the nature and content of human rights in (1986) chapter 9, and in particular, pp 293 ff.

References

Annan K (1999) ‘Two Concepts of Sovereignty’ The Economist p 352, September 18.

Arendt H (1986) The Origins of Totalitarianism Andre Deutsch, London (1st edn 1951).

Australian Commonwealth Ombudsman (2001) Report of an Own Motion Investigation into the Department of Immigration and Multicultural Affairs’ Immigration Detention Centres Report under s 35A of the Ombudsman Act 1976 (Cth), March 2001.

Bhutta N (n.d.) Pass Laws in the Global Village: Enemy Aliens — Asylum Seekers, Economic Migrants and Border Controls, <www.antimedia.net/xborder/xb_passlaws.php>.

Brennan F (2002) ‘Australia’s refugee policy — facts, needs, limits’ in N Riemer Refugees, Morality and Public Policy David Lovell Publishing, Victoria, Australia.

Buchanan A (2000) ‘Rawls’ Law of Peoples: Rules for a Vanished Westphalian World’, Ethics p 110 (July).

Dummett A and Nicol A (1990) Subjects, Citizens, Aliens and Others: Nationality and Immigration Law Weidenfeld and Nicolson, London.

Gross L (1984) ‘The Peace of Westphalia, 1648-1948’ Essays on International Law and Organization Vol 1 Transnational Publishers Inc New York & Martinus Nijhoff Publishers, The Hague.

Hinsliff G et al (2003) ‘Doctors say immigrants not diseased’ Guardian Weekly 6-12 February p 11.

Hubert D and Weiss TG (primary authors) (2001) ‘State Sovereignty’ The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty International Development Research Centre, Ottawa, Canada.

Human Rights and Equal Opportunity Commission (2001) News Release 20 September 2001.

Human Rights Watch Report (2002) By Invitation Only 10 December 2001 <http://hrw.org/reports/2002/australia> .

Jermings Y R (1939) ‘Some International Aspects of the Refugee Question’ British Yearbook of International Law (no page reference).

Locke J (1952) The Second Treatise of Government Prentice Hall, USA.

Mitropoulos A (2001) ‘The Barbed End of Human Rights’ Overland p 164.

Murphy G (nd) The National Public Telecomputing Network, New York <http://members.aol.com/agentmess/frenchrev/mancitizen.html> .

Nicholas A (2002) Australia’s Mandatory Immigration Detention System’ in Centre for Refugee Research The Human Face of Australia’s Refugee Policy Report for the Executive Committee of the UNHCR Programme Annual Meeting, University of New South Wales, Sydney <www.crr.unsw.edu.au>.

Peardon TP (1952) ‘Introduction’ in J Locke The Second Treatise of Government Prentice Hall, USA.

Rudge P (1998) ‘Reconciling State Interests with International Responsibilities: Asylum in North America and Western Europe’ 10 (1/2) International Journal of Refugee Law Oxford University Press.