The Barbed End of Human Rights
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.
1. 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 Protectionwhose terrible
precariousness ensures that those released from the camps remain
under threat of deportation for three yearsall 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
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
answersI will return to this. In other words, despite the
derivation of human rights concepts from Christian doctrine, the
question of the reality of human rightsof where they areis
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 termswith 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 relationshipsexcept that they were
human" (Arendt, 1979:299). As McMaster notes in Asylum Seekers:
Australias 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 manythis 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 lawas
the installation of a sovereign and jurisdictional authoritydoes
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 didnt,
being able to stay, and those that didnt getting deported?"
His reply: "Well, its not an anomaly, its 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.
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 nationalismwith 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 UNs
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 UNs 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
Governments 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, citizenshipwhether
social or fulldoes 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 rhetoricallywhich
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:
Australias 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 questionwhere 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 medias 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 pasta
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 positiona
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 ones 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 anothers humanity away to transcendental
authorities whose structures presuppose alienation. Whether God
or the lawor indeed capitalare 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.
Angela Mitropoulos produces noborder media, including xborder
<http://antimedia.net/xborder> and the Woomera2002 website
and callout <http://woomera2002.antimedia.net/> Email: email@example.com
Arendt, H. 1979. The Origins of Totalitarianism, New York:
Harcourt Brace Jovanovich.
Department of Immigration and Multicultural Affairs, 1997. Media
Release, 6 October.
Insight, 2001. "Crime and Punishment", Special Broadcasting
Service. Broadcast April 19.
Mares, P. 2001. Borderlines: Australia's Treatment of Refugees
and Asylum Seekers, Sydney: University of NSW Press.
McMaster, D. 2001 Asylum Seekers: Australia's Response to Refugees,
Melbourne: Melbourne University Press.
Mitropoulos, A. 1999. "The Exhaustion of Social Democracy?",
Left Business Observer, n. 92. New York.
Poynder, N. 1997 "The incommunicado detention of boat people:
A recent development in Australia's refugee policy", Australian
Journal of Human Rights.
Refugee Council of Australia, "Position Paper on Temporary
Protection Visas." Online at <http://www.refugeecouncil.org.au>
Reuters, 2001. "Despair Permeates Detention Centre", May
Zhang Xianchu, "Some Legal and Social Issues Concerning the
Rural Labour Migration in China", unpublished paper.
© borderlands ejournal 2003