Refugees and the Myth of Human Rights: Life Outside the Pale of the Law

208 Pages·2014·1.03 MB·English

by  Emma Larking

Refugees and the Myth of
huMan Rights
For those who speak but are not heard.
Refugees and the Myth of
human Rights
Life outside the Pale of the Law
eMMa LaRking
Australian National University, Australia
© emma Larking 2014
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
emma Larking has asserted her right under the Copyright, designs and Patents act, 1988,
to be identified as the author of this work.
Published by
ashgate Publishing Limited ashgate Publishing Company
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British Library Cataloguing in Publication Data
a catalogue record for this book is available from the British Library
The Library of Congress has cataloged the printed edition as follows:
Larking, emma.
Refugees and the myth of human rights : life outside the pale of the law / by emma
Larking.
pages cm
includes bibliographical references and index.
isBn 978-1-4724-3007-6 (hardback) -- isBn 978-1-4724-3008-3 (ebook) -- isBn
978-1-4724-3009-0 (epub) 1. Refugees--Legal status, laws, etc. 2. Refugees--government
policy 3. human rights--government policy. 4. Border security--government policy. 5.
emigration and immigration--government policy i. title.
JV6346.L37 2014
325'.21--dc23
2014016248
isBn 978-1-4724-3007-6 (hbk)
isBn 978-1-4724-3008-3 (ebk – Pdf)
isBn 978-1-4724-3009-0 (ebk – ePuB)
V
Printed in the united kingdom by henry Ling Limited,
at the dorset Press, dorchester, dt1 1hd
Contents
Acknowledgements vii
Introduction 1
PART I
1 Scum of the Earth I 13
2 Rights and the Nation-state 29
3 The Perplexities of the Rights of Man 49
PART II
4 Natural Law and the False Promise of a Universal Community
of Equals 67
5 Liberalism’s False Promise I: Locke 83
6 Liberalism’s False Promise II: Kant 101
PART III
7 Scum of the Earth II: Contemporary Refugees 119
8 The International Human Rights Regime and
the Sovereignty of States 137
9 The Right to Have Rights and a New Law on Earth 151
Bibliography 169
Index 195
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Acknowledgements
Many people at the University of Melbourne and particularly in the Centre for
Applied Philosophy and Public Ethics provided me with friendship, support,
encouragement and intellectual inspiration during my time studying and working
there. Thank you especially to Andrew Alexandra, Lisa Ball, Irena Blonder, Tony
Coady, Ned Dobos, Anna Goppal, Karen Jones, Mianna Lotz, Clare McCausland,
Emma Rush, Andy Schaap, Doris Schroeder and Philippa Smales. Thank you as
well to Brian Galligan and John Chesterman with whom I was fortunate to work
on the ‘Politics of Rights’ project.
Hilary Charlesworth, Ned Dobos, Leonie Martino and Emma Rush all read parts
of this book at various stages and provided helpful feedback for which I am very
grateful. Andrew Alexandra and Phillip Cole read drafts of the entire manuscript
and I am indebted to them for their generous support and insightful criticisms.
I am grateful to my colleagues at the Regulatory Institutions Network at ANU
for providing a wonderfully hospitable, lively and supportive research community.
To all the people who have supported and cheered me on during the writing
of this book, thank you. For your many kindnesses, friendship, loyalty, enriching
conversation and generosity of spirit I would like to thank in particular my family,
Carmen Anderson, Conrad Asmus, Rachel Chiodo, Libby Douglas, Vicki Eddey,
Claire Heughan, Kate Hill, Imelda Deinla, Sam Jackson, Jo Kenny, Michael
McIver, Leonie Martino, Sarah Nieuwenhuysen, Petrina O’Connor, Mark Phelan,
Hannah Richardson, Rachel Scully, Ben Tootell, Jacqui Walker, and my lovely
bookgroup girls.
Thank you to the publishers for their permission to reprint material that
appeared in two articles in The Australian Journal of Human Rights: ‘Human
Rights and the Principle of Sovereignty: A Dangerous Conflict at the Heart of the
Nation State?’ AJHR 10 no. 1: 15–32, June 2004, and ‘Human Rights, the Right
to Have Rights, and Life Beyond the Pale of the Law’ AJHR 18 no. 1: 57–88,
July 2012.
Finally, my warm thanks to Rob Sorsby and all at Ashgate.
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Introduction
Refugees and the Myth of Human Rights:
Life Outside the Pale of the Law
In February 2014, more than 60 asylum seekers detained in a camp run by Australia
on Manus Island, Papua New Guinea were badly beaten and slashed with knives
and machetes. One man was shot and Reza Berati, a 23-year-old Iranian man,
was killed. Media reports suggest that camp guards employed by the security
contractor G4S were responsible for the attacks, supported by members of the
PNG police. There are conflicting accounts of what sparked the violence, with the
Australian government claiming asylum seekers at the centre were engaged in a
protest that led to a riot. The asylum seekers themselves claim they were ‘pulled
from their rooms, beaten and told by their attackers: “You want freedom? We’ll
give you freedom tonight”’ (Gordon and Ireland 2014).
According to the Universal Declaration of Human Rights (UDHR), ‘all
human beings are born free and equal in dignity and rights’ (Art. 1). Wealthy
liberal democracies claim to recognise the innate freedom and equality of all
people and to uphold human rights but also spend billions fortifying their borders
and incarcerating refugees. Written by a citizen of a wealthy liberal democracy
(Australia), this book is an attempt to ‘think what we are doing’ (Arendt 1998, 5)
and to explore the likely consequences of our actions. It examines the theoretical
and institutional commitments that undergird the liberal democratic state, including
its commitment to human rights, and considers to what extent contemporary
border policing regimes are consistent with these commitments. The idea that
humans are naturally endowed with dignity and rights and are by nature ‘free and
equal’ is what I call ‘the myth of human rights’. This myth plays an important and
dangerous role in the liberal democratic state by obscuring the political effort and
commitment necessary to the realisation of freedom, equality, dignity and rights.
The problematic character of the myth of human rights becomes apparent when
we consider the position of refugees who arrive without lawful authorisation in
the state. These people cannot make rights claims based on membership of the
state or their lawful right to remain; they have only their human rights to fall
back on. How they are treated by the liberal state suggests that human rights are
worth very little, and indeed I argue in this book that within a liberal democracy
an appeal to human rights is evidence in itself that the person making the appeal
is neither free nor equal. Worse than this, the appeal is likely to provoke hostility
rather than evoke a sense of solidarity. These people do not stand respectfully at
a distance, pleading for assistance from their home countries or camps in Africa,
Asia and the Middle East and prepared to wait indefinitely for our charity and