Giorgio Agamben: Beyond human rights -

Second essay from the book Giorgio Agamben, The Means Without End: Notes on politics, published by Bollati Boringhieri, 1996

Translation from Italian.

1. In 1943 Hannah Arendt, in a small English- language Jewish magazine, “The Menorah Journal,” published an article entitled We Refugees. At the end of this short, but significant writing, after having polemically sketched the portrait of Mr. Cohn, the assimilated Jew who, after having been 150% German, 150% Viennese, 150% French, must bitterly realize at the end that on ne parvient pas deux fois, she re-conceptualizes the condition of refugee and homelessness that he was living, to propose it as a paradigm of a new historical consciousness. The refugee who has lost all rights and ceases to want to assimilate at all costs to a new national identity, to contemplate his condition clearly, receives, in exchange for a certain unpopularity, an invaluable advantage: “history is no longer, for him, a closed book and politics ceases to be the privilege of the Gentiles. He knows that the banishment of the Jewish people in Europe was immediately followed by that of most European peoples. The refugees driven out from country to country represent the vanguard of their peoples.”
It is worth re-examining the meaning of this analysis, which today, exactly fifty years later, has lost none of its relevance.
Not only does the problem present itself, in Europe and elsewhere, with equal urgency, but, in the now unstoppable decline of the nation-state and in the general corrosion of traditional juridical-political categories, the refugee is, perhaps, the only conceivable figure of the people in our time and, at least until the process of dissolution of the nation-state and its sovereignty is completed, the only category in which we are today allowed to glimpse the forms and limits of a political community to come. On the contrary, it is possible that, if we want to be up to the absolutely new tasks ahead of us, we will have to decide to abandon without reservation the fundamental concepts in which we have so far represented the subjects of the politics (man and the citizen with their rights, but also the sovereign people, the worker, etc.) and to reconstruct our political philosophy starting from this single figure.

2. The first appearance of refugees as a mass phenomenon took place at the end of the First World War, when the fall of the Russian, Austro-Hungarian and Ottoman Empires and the new order created by the peace treaties profoundly upset the demographic and territorial structure of Central and Eastern Europe. In a short time 1500,000 Belorussians, 700,000 Armenians, 500,000 Bulgarians, 000,000 Greeks, hundreds of thousands of Germans, Hungarians and Romanians moved from their countries. To these masses in movement, we must add the explosive situation determined by the fact that about 30% of the populations of the new state bodies created by the peace treaties on the model of the nation-state (for example, in Yugoslavia and Czechoslovakia) constituted minorities that had to be protected through a series of international treaties (the so-called Minority Treaties), which often remained a dead letter. A few years later, the racial laws in Germany and the civil war in Spain scattered throughout Europe a new and important contingent of refugees.
We are accustomed to distinguishing between stateless persons and refugees, but neither then nor now is the distinction as simple as it might seem at first glance. From the beginning, many refugees, who were not technically stateless, preferred to become so rather than return to their homeland (this is the case of the Polish and Romanian Jews who were in France or Germany at the end of the war, and, today, of the politically persecuted and those for whom returning to their homeland means the impossibility of survival). On the other hand, Belorussian, Armenian, and Hungarian refugees were promptly denationalized by the new Soviet, Turkish, etc. governments. It is important to note that, beginning with World War I, many European states began to introduce laws that allowed for the denaturalization and denationalization of their citizens: first France, in 1915, with respect to naturalized citizens of “enemy” origin, in 1922 the example was followed by Belgium, which revoked the naturalization of citizens who had committed “anti-national” acts during the war; in 1926 the fascist regime enacted a similar law with respect to citizens who had shown themselves to be “unworthy of Italian citizenship”; in 1933 it was the turn of Austria, and so on, until in 1935 the Nuremberg Laws divided German citizens into full citizens and citizens without political rights. These laws — and the resulting mass statelessness — marked a decisive turning point in the life of the modern nation-state and its definitive emancipation from the naive notions of people and citizen. This is not the place to retrace the history of the various international committees through which states, the League of Nations and, later, the un tried to deal with the refugee problem, from the Bureau Nansen for Russian and Armenian refugees (1921), to the High Commissioner for Refugees from Germany (1936), the Intergovernmental Committee for Refugees (1938), the International Refugee Organization of the UNO (1946), up to the current High Commissioner for Refugees (1951), whose activity, according to its statute, is not political, but only “humanitarian and social”. The essential thing is that, whenever refugees are no longer individual cases, but a mass phenomenon (as happened between the two wars and again now), both these organizations and the single States, in spite of solemn evocations of the inalienable rights of man, have shown themselves to be absolutely incapable not only of solving the problem, but simply of dealing with it adequately. The whole issue was thus transferred into the hands of the police and humanitarian organizations.

3. The reasons for this impotence lie not only in the selfishness and blindness of the bureaucratic apparatuses, but in the ambiguity of the same fundamental notions that regulate the inclusion of the native (i.e. life) in the legal system of the nation-state. H. Arendt entitled the fifth chapter of her book on imperialism, dedicated to the problem of refugees, The Decline of the Nation-State and the End of Human Rights. It is necessary to try to take this formulation seriously, since it indissolubly links the fate of human rights and that of the modern nation-state, so that the decline of the latter necessarily implies the obsolescence of the latter. The paradox here is that the very figure — the refugee — who should have embodied human rights par excellence instead marks the radical crisis of this concept. “The conception of human rights,” writes H. Arendt writes, “based on the supposed existence of a human being as such, fell into ruin as soon as those who professed it found themselves faced for the first time with men who had truly lost every other specific quality and relationship — except the pure fact of being human.” In the system of the nation-state, the so-called sacred and inalienable rights of man are shown to be devoid of any protection at the very moment when it is no longer possible to configure them as the rights of the citizens of a State. This is implicit, if we reflect, in the ambiguity of the very title of the Declaration of 1789: Déclaration des droits de l’homme et du citoyen, where it is not clear whether the two terms name two distinct realities or form, instead, an endiad, in which the first term is, in truth, always contained in the second.
That for something like a simply human-as-such there is no autonomous space in the political order of the nation-state is evident at least from the fact that the status of refugee has always been considered, even in the best of cases, as a temporary condition, which must lead either to naturalization or to repatriation. A stable status of “simply human as such” is inconceivable in the law of the nation-state.

4. It is time to stop looking at the Declarations of Rights from 1789 to today as proclamations of eternal meta-legal values, tending to bind the legislator to their respect, and to consider them according to their real function in the modern State. The rights of man represent, in fact, first of all the original figure of the inscription of the bare biological life in the juridical-political order of the nation-state. That bare life (the human creature) which, in the Ancien Regime, belonged to God and, in the classical world, was clearly distinct (as zoé) from political life (bios), now comes to the forefront in the care of the State and becomes, so to speak, its earthly foundation. Nation-state means: a state that makes nativity, birth (i.e., bare human life) the foundation of its sovereignty. This is the meaning (not even too hidden) of the first three articles of the 1789 Declaration: only because it has inscribed (articles 1 and 2) the element of nativity at the heart of every political association, can it firmly bind (article 3) the principle of sovereignty to the nation (in accordance with the etymon, natio originally means simply “birth”).
The Declarations of Rights are then to be seen as the place where the transition from divine-derived royal sovereignty to national sovereignty takes place. They ensure the insertion of life in the new state order that will follow the collapse of the Ancien Regime. The fact that, through them, the subject is transformed into a citizen means that birth — i.e. bare biological life — becomes here for the first time (with a transformation whose biopolitical consequences we can only now begin to measure) the immediate bearer of sovereignty. The principle of nativity and the principle of sovereignty, separated in the Ancien Regime, are now irrevocably united to form the foundation of the new nation-state. The fiction implied here is that birth immediately becomes nationhood, so that there can be no gap between the two moments. Rights are, that is, attributed to man, only insofar as he is the immediately diluting presupposition (and which, indeed, must never come to light as such) of the citizen.
5. If the refugee is such a disturbing element in the order of the nation-state, it is first of all because, by breaking down the identity between man and citizen, between nativity and nationality, it undermines the original fiction of sovereignty. Individual exceptions to this principle had, of course, always existed: the novelty of our time, which threatens the nation-state in its very foundations, is that growing portions of humanity are no longer representable within it. For this reason, insofar as it unhinges the old trinity State-nation-territory, the refugee, this apparently marginal figure, deserves, instead, to be considered as the central figure of our political history. We should not forget that the first camps were built in Europe as a space of control for refugees, and that the succession of internment camps — concentration camps — extermination camps represents a perfectly real filiation. One of the few rules to which the Nazis constantly adhered during the “final solution” was that only after they had been fully denationalized (including the second-class citizenship they were entitled to after the Nuremberg Laws) could Jews and gypsies be sent to extermination camps. When a man’s rights are no longer the rights of the citizen, then the man is truly sacred, in the sense that this term has in archaic Roman law: voted to death.

6. The concept of refugee must be resolutely separated from that of human rights and the right to asylum (which is by now being drastically reduced in the legislation of European states) must no longer be considered as the conceptual category in which the phenomenon is to be enrolled (a glance at the recent Theses on the right to asylum by A. Heller shows that this can only lead to inappropriate confusion today). Refugees should be considered for what they are, that is, nothing less than a concept-limit that radically undermines the principles of the nation-state and, at the same time, makes it possible to clear the field for a categorical renewal that cannot be postponed.
In the meantime, in fact, the phenomenon of so-called illegal immigration in the countries of the European Community has assumed (and will increasingly assume in the coming years, with the expected 20 million immigrants from the countries of Central Europe) such characteristics and proportions as to fully justify this reversal of perspective. What the industrialized states now face is a permanently resident mass of non-citizens, who cannot and will not be naturalized or repatriated. These non-citizens often have a nationality of origin, but because they prefer not to avail themselves of the protection of their state, they find themselves, like refugees, in the condition of “de facto stateless persons”. T. Hammar has proposed using the term denizens for these non-citizen residents, which has the merit of showing how the concept of citizen is now inadequate to describe the political and social reality of modern states. On the other hand, the citizens of the advanced industrial states (both in the United States and in Europe) manifest, through a growing desertion of the codified instances of political participation, an evident propensity to become denizens, stable non-citizen residents, in such a way that citizens and denizens are entering, at least in certain social strata, a zone of potential indistinction. At the same time, in accordance with the well-known principle that substantial assimilation in the presence of formal differences exacerbates hatred and intolerance, xenophobic reactions and defensive mobilizations are growing.

7. Before the extermination camps are reopened in Europe (which is already beginning to happen), it is necessary for the nation-states to find the courage to question the very principle of inscription of the nativity and the trinity of state-nation-territory that is based on it. It is not easy to indicate at this point the ways in which this can concretely happen. It is enough here to suggest a possible direction. It is well known that one of the options considered for the solution of the problem of Jerusalem is that it becomes, at the same time and without territorial division, capital of two different state bodies. The paradoxical condition of mutual extraterritoriality (or, better, aterritoriality) that this would imply could be generalized as a model of new international relations. Instead of two nation-states separated by uncertain and threatening borders, it would be possible to imagine two political communities insisting on the same region and in exodus into each other, articulated by a series of mutual extraterritoriality, in which the guiding concept would no longer be the ius of the citizen, but the refugium of the individual.
In a similar sense, we could look at Europe not as an impossible “Europe of nations”, whose catastrophe is already foreshadowed in the short term, but as an aterritorial or extraterritorial space, in which all residents of European states (citizens and non-citizens) would be in a position of exodus or refuge and the status of European would mean the being-in-exile (obviously also immobile) of the citizen. The European space would thus mark an irreducible gap between birth and nation, in which the old concept of people (which, as is well known, is always a minority) could find a political sense, decidedly opposed to that of nation (which has so far unduly usurped it).
This space would not coincide with any homogeneous national territory nor with their topographical sum, but would act on them, piercing and articulating them topologically as in a Leiden bottle or in a Moebius strip, where outside and inside are indeterminate. In this new space, European cities, entering into a relationship of mutual extraterritoriality, would rediscover their ancient vocation as cities of the world.
In a sort of no man’s land between Lebanon and Israel, there are now four hundred and twenty-five Palestinians expelled from the State of Israel. These men certainly constitute, according to H. Arendt’s suggestion, “the vanguard of their people”. But not necessarily or not solely in the sense that they would form the original nucleus of a future nation-state, which would probably solve the Palestinian problem as insufficiently as Israel has solved the Jewish question. Rather, the no-man’s-land in which they are refugees has so far retroacted on the territory of the State of Israel, puncturing and altering it in such a way that the image of that snowy mound has become more internal to it than any other region of Heretz Israel. Only in a land in which the spaces of the States will have been pierced and topologically deformed in this way, and in which the citizen will have been able to recognize the refugee that he himself is, is the political survival of men conceivable today.

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Lena Bloch

Lena Bloch

Background in psychology of learning, literature, philosophy, math.