In this era of the greatest global refugee crisis since World War II, people concerned with the status and the future of refugees should take the time to reacquaint themselves with the history of the international refugee regime. In this context, it is particularly important to review the 1951 Geneva Convention, and it may be helpful to consider Hannah Arendt’s analysis in her 1943 piece entitled “We Refugees,” in which she explores her own experience as a refugee and the experience of refugees in general. Coupled with her conception of a “right to have rights” found in her Origins of Totalitarianism (1951), the present analysis aims to re-articulate the scope of rights the refugee can meaningfully claim in a transnational setting based on what I will call “a right to place.”

On March 18, 2016, the EU and Turkey ended their negotiations pertaining to the current refugee crisis. The outcome of the negotiations was in favor of returning the refugees that had been arriving in Europe to Turkey. This measure aimed to regulate unchecked arrivals in Europe by shifting the burden of the refugee flow to Turkey. Until this decision, which affected the relevant policies in Turkey and Greece, more than a thousand Syrian nationals sought refuge in Europe daily, where they could not claim meaningful (be it social or political) membership in the host community. While some of these individuals are welcomed by their host state, others are refused refuge.

The contingency at stake in the decision to grant refuge, exemplified by the current refugee crisis, illuminates the contradictions between basic human rights and the legitimacy of the nation-state. The logic of the nation-state entails equality at the expense of exclusion. It is alleged that co-citizens are able to make claims on each other as political equals only so long as the boundaries of this reciprocal relationship are clearly defined. In being denied the protection of her basic human rights, due to (a well-founded fear of) persecution, the refugee is not in a position to claim such protection from her own state.

The international refugee regime has its origin in the 1951 Refugee Convention, which defines a refugee as “a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” A refugee, in turn, has a human right to asylum, as formulated in Article 14 of the Universal Declaration of Human Rights (UDHR): “1) Everyone has the right to seek and to enjoy in other countries asylum from persecution, 2) This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.”

The purpose of the international refugee regime is first and foremost the protection of individuals who are not afforded such protection by their own state in which they possess civil and political rights. The equal status one enjoys while in their country of origin is put on hold once the individual is outside their territory. The human right to asylum is in place in order to remedy this fundamental inequality in which the refugee finds herself once they are outside of their country of origin—without the protection of civil and political rights. In turn, the refugee’s equality (recognized by the UDHR) as a rights-bearer becomes dependent on a host state’s willingness to acknowledge such equality.

The crisis calls into question the coherence of our normative frameworks for dealing with human right shortfalls, especially when the fundamental status of these individuals who possess basic human rights to life and security is taken into account. Recall Article 3 of the UDHR: “Everyone has the right to life, liberty and security of person.” The matter becomes even more curious when we look at Article 28 of the same Declaration, which states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” (emphasis added). This article is supposed to grant an individual’s right to have a right to political organization most basically understood. Any plausible reading of this article would indicate that everybody has a right to a place in which they can cultivate meaningful relationships; that is, a space which one can turn into a place.

The curiosity of the refugee status is that it stems from the loss of equality or of equal recognition by a state which is the supposed guarantor of its citizens’ inalienable human rights. To be sure, the refugee in the camp (or at the border) is not given a place which can thus enable a meaningful emplacement of the individual. It is true that being in place implies territorial occupation and shelter, along with the protection of one’s human rights. More importantly, however, such a place becomes the condition of possibility of having a sense of oneself—a self with a future. For the absence of such a place entails the inability to have a future in temporal terms. In different terms, the refugee in the camp (or worse, at a detention center) does not have a place to afford her life projects which would include social relationships and political participation, alongside basic rights/opportunities to education, occupation, and a home.

In a recent campaign, Amnesty International invoked Article 14 to promote “8 Ways to Solve the World Refugee Crisis.” The eight ways forwarded in the campaign focus on several key terms for the fulfillment of this human right to asylum: safe routes to sanctuary, resettlement, saving lives, stopping human trafficking and racism. Among these, resettlement is presented as one of three durable solutions, along with two others: voluntary repatriation and integration. I will leave aside the latter two durable solutions for the purpose of my analysis here. My aim is simply to clarify the relationship between the right to asylum and resettlement.

Let me briefly sketch the trajectory that a refugee has to follow to reach the durable solution of resettlement. In most cases, a refugee first finds refuge in a country of asylum; this country of asylum is, more often than not, a bordering country to which the refugee flees from their country of origin. For example, Turkey is a first country of asylum for many Syrian nationals who have fled from Syria. Resettlement, on this model, can be granted following the UNHCR process for submission for resettlement. If qualified, the refugee is presented with a chance to leave behind their predicament of temporary residence in a refugee camp in most instances.

The opportunity of resettlement carries with it the possibility of permanent residence. Eventual permanent residence is thus one of the reasons why resettlement is understood as a “durable solution” to the refugee’s predicament, rather than a “temporary” one. Overall, when the numbers of asylum seekers are said to be in millions, these figures represent a mere sliver of hope for our international refugee regime; to be precise, “of the 14.4 million refugees of concern to UNHCR around the world, less than one per cent is submitted for resettlement.”

It is true that human rights do not become enforceable in practice just by way of their existence—this was already discovered in a post-war Europe after World War II. Individual states have discretionary powers to admit or deny refugees entry to their territories. Such power demonstrates the inherent tension between the fulfillment of basic human rights and the legitimate sovereign claims of states (especially problematic within the scheme of the nation-state). Yet, the right to asylum retains a special status within human rights discourse, for it is mainly evoked when a person’s basic human rights are being violated by the state which is supposed to protect these rights. Such violations, accompanied by the fear of persecution if one were to stay in their country of origin, bring into focus the principle (or duty) of non-refoulement. As formulated in Article 33 of the 1951 Refugee Convention:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Simply put, the duty of non-refoulement places an obligation on states to not return the asylum-claimant to their country of origin where they are in danger of facing persecution. Every state has the discretionary power to lay out their own adjudicative processes in assessing the status of the refugee. In other terms, every state has the power to determine whether the asylum seeker should be granted asylum or not. The right to asylum merely implies a moral obligation for a state to dutifully consider the refugee’s justified claim for asylum. The state is then expected to act in accordance with their duty to respect this right. Respect in this instance, however, does not entail the action of admitting the refugee but simply means not returning them to their country of origin where they are in danger of facing persecution. Such respect, as we have seen, can happen via outsourcing responsibilities, as has been practiced in history, and recently in the EU-Turkey negotiations. Instead of fulfilling the respect for the refugee’s right to asylum by granting asylum; a state can outsource such obligation to another state, without returning the refugee to their country of origin, but by sending them to another country which is a “safe third country.” The essential point is that the duty of non-refoulement can be complied with in a number of ways apart from granting refuge.

Notwithstanding their unenforceability in practice, human rights are indispensable in enabling one to retain, and at times, to recover one’s sense of humanity. As Kant claimed, humanity can be articulated as the full participation of the individual in a society that allows for the full realization of the individual’s natural capacities. This sense of humanity is closely linked to having a sense of oneself in affording the individual a meaningful place to enjoy their rights and freedoms. Following this, resettlement processes become crucial in fostering the recovery of one’s sense of self, which is also intimately linked with one’s ability to project themselves into a future. Mere settlement (in instances where a refugee settles in a camp) is not adequate to having a sense of self with different future possibilities.

To highlight the import of the sense of self that accompanies being able to have futural life projects, I will turn briefly to Arendt’s 1943 piece entitled “We Refugees,” where, informed by her own life experiences, Arendt depicts the loss of an individual’s meaningful relationship to themselves and their environment:

We lost our home, which means the familiarity of daily life. We lost our occupation, which means the confidence that we are of some use in this world. We lost our language, which means the naturalness of reactions, the simplicity of gestures, the unaffected expression of feelings. We left our relatives in the Polish ghettos and our best friends have been killed in concentration camps, and that means the rupture of our private lives. (110)

Coupled with the loss of these rights is the inevitable circumstance of what I understand as the loss of “a right to place.” The loss of a right to place is tantamount to the loss of agency. The refugees do not leave their home, because they want to—the stakes of survival are high—and for sure, there has to be some hope to be able to rebuild a life, a home. It is for this reason that having a place where one can cultivate social and political relationships is essential for human existence insofar as human beings exist with others, that is, in plurality and equality. This equality, however, is not a natural phenomenon. Recalling Articles 3 and 28 of the UDHR, we can say that in positing that each individual holds inalienable rights (especially liberty rights), and entitlement to a political organization, the Declaration thereby aims to put forth this equality as fact where it remains a moral ideal.

The moral ideal of equality can only be achieved where one can be welcomed to a community where one is seen as a potentially equal participant in the community. That is, one needs to be visible as a being who can disclose who they are, and partake in political affairs as a political agent. By contrast, equality is put on hold once one is displaced. Nevertheless, this loss of equality does not point to the fact that equality is meaningless, but to the contrary, that it is only meaningful in the performance of recognizing human beings as equal. Equality is, thus, a performative phenomenon. This point recalls Arendt’s analysis found in the Origins of Totalitarianism, published in 1951:
>Equality, in contrast to all that is involved in mere existence, is not given us, but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.
Our political life rests on the assumption that we can produce equality through organization, because man can act in and change and build a common world, together with his equals and only with his equals (OT, 301).

Arendt’s conviction is crucial. Equality rests on a mutual decision of recognizing each other as equal. If human rights themselves cannot guarantee such equality, we need to identify another foundation for it. The predicament of the phenomenon of mass statelessness, which lets Arendt formulate the conception of a “right to have rights” may be helpful in this context:

We became aware of the existence of a right to have rights (and this means to live in a framework where one is judged by one’s actions and opinions), as well as the right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation (OT, 296-7).

The import of the “right to have rights” is that it is not a civil or political right, but it is the condition of possibility for possessing such rights in the first place. A right to have rights is linked to the possibility of becoming a political agent in a community where one is recognized as an equal. A right to have rights is not dependent on a state’s willingness to grant one this right. A right to have rights is fundamentally inalienable, and this right can make other human rights claims meaningful—or better, practicable.

Recalling the definition of the refugee forwarded by the 1951 Convention (and amended in the 1967 Protocol to extend the “temporal and geographical restrictions”), the emphasis on where the refugee is, is of utmost importance for a discussion on equality. The refugee is someone who is outside their recognized territorial space where they hold (or held) basic human rights insofar as they are recognized as equal citizens. In this instance, when the person decides to flee this space, and arrives at the border of another sovereign state, her status reflects a perfect limbo in terms of her equality. The refugee is no longer an equal rights-holder in the territory she left behind (in terms of civic and political rights), and neither is she yet an equal where she has arrived.

If the aim of our much-cherished Declarations on human rights is to put forth the equality (to be sure the equal dignity) of individuals, then the right to asylum and the duty of non-refoulement cannot offer us a complete picture of how such equality can be realized. Without a concrete acknowledgement of her right to place, the refugee is not only denied her sense of self, but also a future.