Hannah Arendt's text of
The Decline of the Nation- State and the End of the Rights of Man
from "The
Origins of Totalitarianism," 1951.
CHAPTER
nine: The Decline of the Nation- State and the End of the Rights of Man
(Pp.267-302)
(p.267)
IT IS ALMOST impossible even now to describe what actually happened in
Europe on August 4, 1914. The days before and the days after the first
World War are separated not like the end of an old and the beginning of
a new period, but like the day before and the day after an explosion.
Yet this figure of speech is as inaccurate as are all others, because
the quiet of sorrow which settles down after a catastrophe has never
come to pass. The first explosion seems to have touched off a chain
reaction in which we have been caught ever since and which nobody seems
to be able to stop. The first World War exploded the European comity of
nations beyond repair, something which no other war had ever done.
Inflation destroyed the whole class of small property owners beyond
hope for recovery or new formation, something which no monetary crisis
had ever done so radically before. Unemployment, when it came, reached
fabulous proportions, was no longer restricted to the working class but
seized with insignificant exceptions whole nations. Civil wars which
ushered in and spread over the twenty years of uneasy peace were not
only bloodier and more cruel than all their prede- cessors; they were
followed by migrations of groups who, unlike their happier predecessors
in the religious wars, were welcomed nowhere and could be assimilated
nowhere. Once they had left their homeland they remained homeless, once
they had left their state they became stateless; once they had been
deprived of their human rights they were rightless, the scum of the
earth. Nothing which was being done, no matter how stupid, no matter
how many people knew and foretold the consequences, could be undone or
prevented. Every event had the finality of a last judgment, a judgment
that was passed neither by God nor by the devil, but looked rather like
the expression of some unredeemably stupid fatality.
Before totalitarian politics consciously attacked and partially
destroyed the very structure of European civilization, the explosion of
1914 and its severe consequences of instability had sufficiently
shattered the facade of Europe's political system to lay bare its
hidden frame. Such visible exposures were the sufferings of more and
more groups of people to whom suddenly the rules of the world around
them had ceased to apply. It was precisely the seeming stability of the
surrounding world that made each group forced out of its protective
boundaries look like an unfortunate exception to
(p.268)
an otherwise sane and normal rule, and which filled with equal cynicism
victims and observers of an apparently unjust and abnormal fate. Both
rnisiixik this cynicism for growing wisdom in the ways of the world,
while .ictuaily they were more baffled and therefore became more stupid
than they ever had been before. Hatred, certainly not lacking in the
pre-war world, began to play a central role in public affairs
everywhere, so that the [x>litical scene in the deceptively quiet
years of the twenties assumed the sordid and weird atmosphere of a
Strindbergian family quarrel. Nothing perhaps illustrates the general
disintegration of political life better than this vague, pervasive
hatred of everybody and everything, without a focus for its passionate
attention, with nobody to make responsible for the state of affairs Å\
neither the government nor the bourgeoisie nor an outside power. It
consequently turned in all directions, haphazardly and unpre- dictably,
incapable of assuming an air of healthy indifference toward anything
under the sun.
This atmosphere of disintegration, though characteristic of the whole
of F-urope between the two wars, was more visible in the defeated than
in the victorious countries, and it developed fully in the states newly
established after the liquidation of the Dual Monarchy and the Czarist
Empire. The last remnants of solidarity between the nonemancipated
nationalities in the "belt of mixed populations" evaporated with the
disappearance of a central despotic bureaucracy which had also served
to gather together and divert from each other the diffuse hatreds and
conflicting national claims. Now everybody was against everybody else,
and most of all against his closest neighbors Å\ the Slovaks against
the Czechs, the Croats against the Serbs, the Ukrainians against the
Poles. And this was not the result of the conflict between
nationalities and the state peoples (or minorities and majorities); the
Slovaks not only constantly sabotaged the democratic Czech government
in Prague, but at the same time persecuted the Hun- garian minority on
their own soil, while a similar hostility against the state people on
one hand, and among themselves on the other, existed among the
dissatisfied minorities in Poland.
At first glance these troubles in the old European trouble spot looked
like petty nationalist quarrels without any consequence for the
political destinies of Europe. Yet in these regions and out of the
liquidation of the two multinational states of pre-war Europe, Russia
and Austria-Hungary, two victim groups emerged whose sufferings were
different from those of all others in the era between the wars; they
were worse off than the dispos- sessed middle classes, the unemployed,
the small rentiers, the pensioners whom events had deprived of social
status, the possibility to work, and the right to hold property: they
had lost those rights which had been thought of and even defined as
inalienable, namely the Rights of Man. The stateless and the
minorities, rightly termed "cousins-germane," had no
(p.269)
governments to represent and to protect them and therefore were forced
to Hve either under the law of exception of the Minority Treaties,
which all governments (except Czechoslovakia) had signed under protest
and never recognized as law, or under conditions of absolute
lawlessness.
With the emergence of the minorities in Eastern and Southern Europe and
with the stateless people driven into Central and Western Europe, a
completely new element of disintegration was introduced into postwar
Europe. Denationalization became a powerful weapon of totalitarian
politics, and the constitutional inability of European nation-states to
guarantee human rights to those who had lost nationally guaranteed
rights, made it possible for the persecuting governments to impose
their standard of values even upon their opponents. Those whom the
persecutor had singled out as scum of the earth Å\ Jews, Trotskyites,
etc. Å\ actually were received as scum of the earth everywhere; those
whom persecution had called undesirable became the indesirables of
Europe. The official SS newspaper, the Schwarze Korps, stated
explicitly in 1938 that if the world was not yet convinced that the
Jews were the scum of the earth, it soon would be when unidenti- fiable
beggars, without nationality, without money, and without passports
crossed their frontiers.- And it is true that this kind of factual
propaganda worked better than Goebbels' rhetoric, not only because it
established the Jews as scum of the earth, but also because the
incredible plight of an ever-growing group of innocent people was like
a practical demonstration of the totalitarian movements' cynical claims
that no such thing as inalien- able human rights existed and that the
affirmations of the democracies to the contrary were mere prejudice,
hypocrisy, and cowardice in the face of the cruel majesty of a new
world. The very phrase "human rights" became for all concerned Å\
victims, persecutors, and onlookers alike Å\ the evidence of hopeless
idealism or fumbling feeble-minded hypocrisy.
1: The "Nation of Minorities" and the Stateless People
MODERN POWER CONDITIONS which make national sovereignty a mockery
except for giant states, the rise of imperialism, and the pan-movements
un-
(p.270)
dcrniined the stability of Europe's nation-state system from the
outside. None of these factors, however, had sprung directly from the
tradition and the institutions of nation-states themselves. Their
internal disintegration began only after the first World War, with the
appearance of minorities created by the Peace Treaties and of a
constantly growing refugee move- ment, the consequence of revolutions.
The inadequacy of the Peace Treaties has often been explained by the
fact that the peacemakers belonged to a generation formed by
experiences in the pre-war era. so that they never quite realized the
full impact of the war whose peace they had to conclude. There is no
better proof of this than their attempt to regulate the nationality
problem in Eastern and Southern Europe through the establishment of
nation-states and the introduction of minority treaties. If the wisdom
of the extension of a form of government which even in countries with
old and settled national tradition could not handle the new problems of
world politics had become questionable, it was even more doubtful
whether it could be imported into an area which lacked the very
conditions for the rise of nation-states: homogeneity of population and
rootedness in the soil. But to assume that nation-states could be
estab- lished by the methods of the Peace Treaties was simply
preposterous. Indeed: "One glance at the demographic map of Europe
should be suffi- cient to show that the nation-state principle cannot
be introduced into Eastern Europe."^ The Treaties lumped together many
peoples in single states, called some of them "state people" and
entrusted them with the government, silently assumed that others (such
as the Slovaks in Czecho- slovakia, or the Croats and Slovenes in
Yugoslavia) were equal partners in the government, which of course they
were not/ and with equal arbi- trariness created out of the remnant a
third group of nationalities called "minorities," thereby adding to the
many burdens of the new states the trouble of observing special
regulations for part of the population.^ The result was that those
peoples to whom states were not conceded, no matter whether they were
official minorities or only nationalities, considered the Treaties an
arbitrary game which handed out rule to some and servitude to others.
The newly created states, on the other hand, which were prom- ised
equal status in national sovereignty with the Western nations, regarded
the Minority Treaties as an open breach of promise and discrimination
(p.271)
because only new states, and not even defeated Germany, were bound to
them.
The perplexing power vacuum resulting from the dissolution of the Dual
Monarchy and the liberation of Poland and the Baltic countries from
Czar- ist despotism was not the only factor that had tempted the
statesmen into this disastrous experiment. Much stronger was the
impossibility of arguing away any longer the more than 100 million
Europeans who had never reached the stage of national freedom and
self-determination to which co- lonial peoples already aspired and
which was being held out to them. It was indeed true that the role of
the Western and Central European proletariat, the oppressed
history-suffering group whose emancipation was a matter of life and
death for the whole European social system, was played in the East by
"peoples without a history."*' The national liberation movements of the
East were revolutionary in much the same way as the workers' movements
in the West; both represented the "unhistorical" strata of Europe's
popula- tion and both strove to secure recognition and participation in
public affairs. Since the object was to conserve the European status
quo, the granting of national self-determination and sovereignty to all
European peoples seemed indeed inevitable; the alternative would have
been to condemn them ruth- lessly to the status of colonial peoples
(something the pan-movements had always proposed) and to introduce
colonial methods into European affairs. '^
The point, of course, is that the European status quo could not be pre-
served and that it became clear only after the downfall of the last
rem- nants of European autocracy that Europe had been ruled by a system
which had never taken into account or responded to the needs of at
least 25 per cent of her population. This evil, however, was not cured
with the estab- lishment of the succession states, because about 30 per
cent of their roughly 100 million inhabitants were officially
recognized as exceptions who had to be specially protected by minority
treaties. This figure, moreover, by no
(p.272)
means tells the whole story; it only indicates the difference between
peoples with a government of their own and those who supposedly were
too small and tiK) scattered to reach full nationhood. The Minority
Treaties covered only those nationalities of whom there were
considerable numbers in at least two of the succession states, but
omitted from consideration all the other nationalities without a
government of their own, so that in some of the succession states the
nationally frustrated peoples constituted 50 per cent of the total
population.^ The worst factor in this situation was not even that it
became a matter of course for the nationalities to be disloyal to their
imposed government and for the governments to oppress their
nationalities as etViciently as possible, but that the nationally
frustrated population was firmly convinced Å\ as was everybody else Å\
that true free- dom, true emancipation, and true popular sovereignty
could be attained only with full national emancipation, that people
without their own national government were deprived of human rights. In
this conviction, which could base itself on the fact that the French
Revolution had combined the decla- ration of the Rights of Man with
national sovereignty, they were supported by the Minority Treaties
themselves, which did not entrust the governments with the protection
of different nationalities but charged the League of Nations with the
safeguarding of the rights of those who, for reasons of territorial
settlement, had been left without national states of their own. Not
that the minorities would trust the League of Nations any more than
they had trusted the state peoples. The League, after all, was com-
posed of national statesmen whose sympathies could not but be with the
unhappy new governments which were hampered and opposed on principle by
between 25 and 50 per cent of their inhabitants. Therefore the creators
of the Minority Treaties were soon forced to interpret their real
intentions more strictly and to point out the "duties" the minorities
owed to the new stales;" it now developed that the Treaties had been
conceived merely as a painless and humane method of assimilation, an
interpretation which naturally enraged the minorities.^" But nothing
else could have been ex-
(p.273)
pected within a system of sovereign nation-states; if the Minority
Treaties had been intended to be more than a temporary remedy for a
topsy-turvy situation, then their impHed restriction on national
sovereignty would have affected the national sovereignty of the older
European powers. The repre- sentatives of the great nations knew only
too well that minorities within nation-states must sooner or later be
either assimilated or hquidated. And it did not matter whether they
were moved by humanitarian considerations to protect splinter
nationalities from persecution, or whether political con- siderations
led them to oppose bilateral treaties between the concerned states and
the majority countries of the minorities (after all, the Germans were
the strongest of all the officially recognized minorities, both in num-
bers and economic position); they were neither willing nor able to
overthrow the laws by which nation-states exist. *^
Neither the League of Nations nor the Minority Treaties would have
prevented the newly established states from more or less forcefully
assimi- lating their minorities. The strongest factor against
assimilation was the numerical and cultural weakness of the so-called
state peoples. The Russian or the Jewish minority in Poland did not
feel Polish culture to be superior to its own and neither was
particularly impressed by the fact that Poles formed roughly 60 per
cent of Poland's population.
The embittered nationalities, completely disregarding the League of Na-
tions, soon decided to take matters into their own hands. They banded
to- gether in a minority congress which was remarkable in more than one
respect. It contradicted the very idea behind the League treaties by
calling itself officially the "Congress of Organized National Groups in
European States," thereby nullifying the great labor spent during the
peace negotiations to avoid the ominous word "national."^- This had the
important conse- quence that all "nationalities," and not just
"minorities," would join and that the number of the "nation of
minorities" grew so considerably that
(p.274)
the combined nationalities in the succession states outnumbered the
state peoples. But in still another way the "Congress of National
Groups" dealt a decisive blow to the League treaties. One of the most
baffling aspects of the Eastern European nationality problem (more
baffling than the small size and great number of peoples involved, or
the "belt of mixed popula- tions"'*) was the interregional character of
the nationalities which, in case they put their national interests
above the interests of their respective gov- ernments, made them an
obvious risk to the security of their countries." The League treaties
had attempted to ignore the interregional character of the minorities
by concluding a separate treaty with each country, as though there were
no Jewish or German minority beyond the borders of the re- spective
states. The "Congress of National Groups" not only sidestepped the
territorial principle of the League; it was naturally dominated by the
two nationalities which were represented in all succession states and
were therefore in a position, if they wished, to make their weight felt
all over Eastern and Southern Europe. These two groups were the Germans
and the Jews. The German minorities in Rumania and Czechoslovakia voted
of course with the German minorities in Poland and Hungary, and nobody
could have expected the Polish Jews, for instance, to remain
indiflferent to discriminatory practices of the Rumanian government. In
other words, national interests and not common interests of minorities
as such formed the true basis of membership in the Congress, '?"' and
only the harmonious relationship between the Jews and the Germans (the
Weimar Republic had successfully played the role of special protector
of minorities) kept it to- gether. Therefore, in 1933 when the Jewish
delegation demanded a protest against the treatment of Jews in the
Third Reich (a move which they had no right to make, strictly speaking,
because German Jews were no minority) and the Germans announced their
solidarity with Germany and were sup- ported by a majority
(antisemitism was ripe in all succession states), the Congress, after
the Jewish delegation had left forever, sank into complete
insignificance.
The real significance of the Minority Treaties lies not in their
practical application but in the fact that they were guaranteed by an
international body, the League of Nations. Minorities had existed
before,i? but the
(p.275)
minority as a permanent institution, the recognition that milHons of
people lived outside normal legal protection and needed an additional
guarantee of their elementary rights from an outside body, and the
assumption that this state of affairs was not temporary but that the
Treaties were needed in order to establish a lasting modus vivendi Å\
all this was something new, certainly on such a scale, in European
history. The Minority Treaties said in plain language what until then
had been only implied in the working system of nation-states, namely,
that only nationals could be citizens, only people of the same national
origin could enjoy the full protection of legal institutions, that
persons of different nationality needed some law of exception until or
unless they were completely assimilated and divorced from their origin.
The interpretative speeches on the League treaties by statesmen of
coun- tries without minority obligations spoke an even plainer
language: they took it for granted that the law of a country could not
be responsible for persons insisting on a different nationality.^^ They
thereby admitted Å\ ^and were quickly given the opportunity to prove it
practically with the rise of stateless people Å\ that the
transformation of the state from an instrument of the law into an
instrument of the nation had been completed; the nation had conquered
the state, national interest had priority over law long be- fore Hitler
could pronounce "right is what is good for the German people." Here
again the language of the mob was only the language of public opinion
cleansed of hypocrisy and restraint.
Certainly the danger of this development had been inherent in the
struc- ture of the nation-state since the beginning. But insofar as the
establishment of nation-states coincided with the establishment of
constitutional govern- ment, they always had represented and been based
upon the rule of law as against the rule of arbitrary administration
and despotism. So that when the precarious balance between nation and
state, between national interest and legal institutions broke down, the
disintegration of this form of government and of organization of
peoples came about with terrifying swiftness. Its disintegration,
curiously enough, started at precisely the moment when the right to
national self-determination was recognized for all of Europe and when
its essential conviction, the supremacy of the will of the nation over
all legal and "abstract" institutions, was universally accepted.
(p.276)
At the time of the Minority Treaties it could be, and was, argued in
their favor, as i( were as their excuse, that the older nations enjoyed
consti- tutions which unplicitly or explicitly (as in the case of
France, the nation IHtr t-xcfllt-nir) were founded upon the Rights of
Man, that even if there were other nationalities within their borders
they needed no additional law for them, and that only in the newly
established succession states was a temporary enforcement of human
rights necessary as a compromise and exception."* The arrival of the
stateless people brought an end to this illusion.
The minorities were only half stateless; de jure they belonged to some
ptilitical body even though they needed additional protection in the
form of special treaties and guarantees; some secondary rights, such as
speaking one's own language and staying in one's own cultural and
social milieu, were in jeopardy and were halfheartedly protected by an
outside body; but other more elementary rights, such as the right to
residence and to work, were never touched. The framers of the Minority
Treaties did not foresee the possibility of wholesale population
transfers or the problem of people who had become "undeportable"
because there was no country on earth in which they enjoyed the right
to residence. The minorities could still be regarded as an exceptional
phenomenon, peculiar to certain terri- tories that deviated from the
norm. This argument was always tempting because it left the system
itself untouched; it has in a way survived the second World War whose
peacemakers, convinced of the impracticability of minority treaties,
began to "repatriate" nationalities as much as possible in an ctTort to
unscramble "the belt of mixed populations."^^ And this at- tempted
large-scale repatriation was not the direct result of the catastrophic
experiences following in the wake of the Minority Treaties; rather, it
was hoped that such a step would finally solve a problem which, in the
pre- ceding decades, had assumed ever larger proportions and for which
an internationally recognized and accepted procedure simply did not
exist Å\ the problem of the stateless people.
Much more stubborn in fact and much more far-reaching in consequence
(p.277)
has been statelessness, the newest mass phenomenon in contemporary his-
tory, and the existence of an ever-growing new people comprised of
stateless persons, the most symptomatic group in contemporary
politics.^" Their ex- istence can hardly be blamed on one factor alone,
but if we consider the different groups among the stateless it appears
that every political event since the end of the first World War
inevitably added a new category to those who lived outside the pale of
the law, while none of the categories, no matter how the original
constellation changed, could ever be renormalized.^^ Among them, we
still find that oldest group of stateless people, the Heimatlosen
produced by the Peace Treaties of 1919, the dissolution of
Austria-Hungary, and the establishment of the Baltic states. Sometimes
their real origin could not be determined, especially if at the end of
the war they happened not to reside in the city of their birth, 2-
sometimes their place of
(p.278)
origin changed hands so many times in the turmoil of postwar disputes
that the nationality of its inhabitants changed from year to year (as
in Vilna which a French official once termed la capitale des
apatrides); more often than one would imagine, people took refuge in
statelessness after the first World War in order to remain where they
were and avoid being deported to a "homeland" where they would be
strangers (as in the case of many Polish and Rumanian Jews in France
and Germany, mercifully helped by the antiscmitic attitude of their
respective consulates).
Unimportant in himself, apparently just a legal freak, the apatride
received belated attention and consideration when he was joined in his
legal status by the postwar refugees who had been forced out of their
coun- tries by revolutions, and were promptly denationalized by the
victorious governments at home. To this group belong, in chronological
order, mil- lions of Russians, hundreds of thousands of Armenians,
thousands of Hun- garians, hundreds of thousands of Germans, and more
than half a million Spaniards Å\ to enumerate only the more important
categories. The behavior of these governments may appear today to be
the natural consequence of civil war; but at the time mass
denationalizations were something entirely new and unforeseen. They
presupposed a state structure which, if it was not yet fully
totalitarian, at least would not tolerate any opposition and would
rather lose its citizens than harbor people with different views. They
revealed, moreover, what had been hidden throughout the history of na-
tional sovereignty, that sovereignties of neighboring countries could
come into deadly conflict not only in the extreme case of war but in
peace. It now became clear that full national sovereignty was possible
only as long as the comity of European nations existed; for it was this
spirit of unorganized solidarity and agreement that prevented any
government's exercise of its full sovereign power. Theoretically, in
the sphere of international law, it had always been true that
sovereignty is nowhere more absolute than in matters of "emigration,
naturalization, nationality, and expulsion"; ^3 the point, however, is
that practical consideration and the silent acknowledg- ment of common
interests restrained national sovereignty until the rise of
totalitarian regimes. One is almost tempted to measure the degree of
totali- tarian infection by the extent to which the concerned
governments use their sovereign right of denationalization (and it
would be quite interesting then to discover that Mussolini's Italy was
rather reluctant to treat its refugees this way^^). But one should bear
in mind at the same time that there was hardly a country left on the
Continent that did not pass between the two wars some new legislation
which, even if it did not use this right
(p.279)
extensively, was always phrased to allow for getting rid of a great
number of its inhabitants at any opportune moment.'
No paradox of contemporary politics is filled with a more poignant
irony than the discrepancy between the efforts of well-meaning
idealists who stubbornly insist on regarding as "inalienable" those
human rights, which are enjoyed only by citizens of the most prosperous
and civilized countries, and the situation of the rightless themselves.
Their situation has deteriorated just as stubbornly, until the
internment camp Å\ prior to the second World War the exception rather
than the rule for the stateless Å\ has become the routine solution for
the problem of domicile of the "displaced persons."
Even the terminology applied to the stateless has deteriorated. The
term "stateless" at least acknowledged the fact that these persons had
lost the protection of their government and required international
agreements for safeguarding their legal status. The postwar term
"displaced persons" was invented during the war for the express purpose
of liquidating stateless- ness once and for all by ignoring its
existence. Nonrecognition of stateless- ness always means repatriation,
i.e., deportation to a country of origin, which either refuses to
recognize the prospective repatriate as a citizen, or, on the contrary,
urgently wants him back for punishment. Since non- totalitarian
countries, in spite of their bad intentions inspired by the climate of
war, generally have shied away from mass repatriations, the number of
stateless people Å\ twelve years after the end of the war Å\ is larger
than ever. The decision of the statesmen to solve the problem of
statelessness by ignoring it is further revealed by the lack of any
reliable statistics on the subject. This much is known, however: while
there are one million "recognized" stateless, there are more than ten
million so-called "de facto" stateless; and whereas the relatively
innocuous problem of the "de jure" stateless occasionally comes up at
international conferences, the core of state- lessness, which is
identical with the refugee question, is simply not men- tioned. Worse
still, the number of potentially stateless people is con- tinually on
the increase. Prior to the last war, only totalitarian or half-
totalitarian dictatorships resorted to the weapon of denaturalization
with
(p.280)
regard lo those who were citizens by birth; now we have reached the
point where even free democracies, as, for instance, the United States,
were seriously considering depriving native Americans who are
Communists of their citizenship. The sinister aspect of these measures
is that they are being considered in all innocence. Yet, one need only
remember the ex- treme care of the Nazis, who insisted that all Jews of
non-German nationality "should be deprived of their citizenship either
prior to, or, at the latest, on the day of deportation"-^" (for German
Jews such a decree was not needed, because in the Third Reich there
existed a law according to which all Jews who had left the territory Å\
including, of course, those deported to a Polish camp Å\ automatically
lost their citizenship) in order to realize the true implications of
statelessness.
The first great damage done to the nation-states as a result of the
arrival of hundreds of thousands of stateless people was that the right
of asylum, the only right that had ever figured as a symbol of the
Rights of Man in the sphere of international relationships, was being
abolished. Its long and sacred history dates back to the very
beginnings of regulated political life. Since ancient times it has
protected both the refugee and the land of refuge from situations in
which people were forced to become outlaws through circumstances beyond
their control. It was the only modern rem- nant of the medieval
principle that quid quid est in territorio est de terri- loriu, for in
all other cases the modern state tended to protect its citizens beyond
its own borders and to make sure, by means of reciprocal treaties, that
they remained subject to the laws of their country. But though the
right of asylum continued to function in a world organized into nation-
states and. in individual instances, even survived both World Wars, it
was felt to be an anachronism and in conflict with the international
rights of the slate. Therefore it cannot be found in written law, in no
constitution or international agreement, and the Covenant of the League
of Nations never even so much as mentioned it.^" It shares, in this
respect, the fate of the Rights of Man, which also never became law but
led a somewhat shadowy
(p.281)
existence as an appeal in individual exceptional cases for which normal
legal institutions did not suffice.^^
The second great shock that the European world suffered through the
arrival of the refugees ^^ was the realization that it was impossible
to get rid of them or transform them into nationals of the country of
refuge. From the beginning everybody had agreed that there were only
two ways to solve the problem: repatriation or naturalization.-^ When
the example of the first Russian and Armenian waves proved that neither
way gave any tangible results, the countries of refuge simply refused
to recognize statelessness in all later arrivals, thereby making the
situation of the refugees even more intolerable.^" From the point of
view of the governments concerned it was understandable enough that
they should keep reminding the League of Nations "that [its] Refugee
work must be liquidated with the utmost ra- pidity";^' they had many
reasons to fear that those who had been ejected
(p.282)
from the old trinity of state-people-territory, which still formed the
basis of E:uropcan organization and political civilization, formed only
the begin- ning of an increasing movement, were only the first trickle
from an ever- growing reservoir. It was obvious, and even the Evian
Conference recog- nized it in 1938, that all German and Austrian Jews
were potentially stateless; and it was only natural that the minority
countries should be encouraged by Germany's example to try to use the
same methods for getting rid of some of their minority populations.'^-'
Among the minorities the Jews and the Armenians ran the greatest risks
and soon showed the highest proportion of statelessness; but they
proved also that minority treaties did not necessarily offer protection
but could also serve as an in- strument to single out certain groups
for eventual expulsion.
Almost as frightening as these new dangers arising from the old trouble
spots of Europe was the entirely new kind of behavior of all European
na- tionals in "ideological" struggles. Not only were people expelled
from coun- try and citizenship, but more and more persons of all
countries, including the Western democracies, volunteered to fight in
civil wars abroad (some- thing which up to then only a few idealists or
adventurers had done) even when this meant cutting themselves off from
their national communities. This was the lesson of the Spanish Civil
War and one of the reasons why the governments were so frightened by
the International Brigade. Matters would not have been quite so bad if
this had meant that people no longer clung so closely to their
nationality and were ready eventually to be as- similated into another
national community. But this was not at all the case. The stateless
people had already shown a surprising stubbornness in re- taining their
nationality; in every sense the refugees represented separate foreign
minorities who frequently did not care to be naturalized, and they
never banded together, as the minorities had done temporarily, to
defend common interests.^'' The International Brigade was organized
into national
(p.283)
battalions in which the Germans felt they fought against Hitler and the
Ital- ians against Mussolini, just as a few years later, in the
Resistance, the Spanish refugees felt they fought against Franco when
they helped the French against Vichy. What the European governments
were so afraid of in this process was that the new stateless people
could no longer be said to be of dubious or doubtful nationality (de
nationalite indeterminee) . Even though they had renounced their
citizenship, no longer had any con- nection with or loyalty to their
country of origin, and did not identify their nationality with a
visible, fully recognized government, they retained a strong attachment
to their nationality. National splinter groups and minori- ties,
without deep roots in their territory and with no loyalty or
relationship to the state, had ceased to be characteristic only of the
East. They had by now infiltrated, as refugees and stateless persons,
the older nation-states of the West.
The real trouble started as soon as the two recognized remedies,
repatria- tion and naturalization, were tried. Repatriation measures
naturally failed when there was no country to which these people could
be deported. They failed not because of consideration for the stateless
person (as it may ap- pear today when Soviet Russia claims its former
citizens and the democratic countries must protect them from a
repatriation they do not want); and not because of humanitarian
sentiments on the part of the countries that were swamped with
refugees; but because neither the country of origin nor any other
agreed to accept the stateless person. It would seem that the very
undeportability of the stateless person should have prevented a govern-
ment's expelling him; but since the man without a state was "an anomaly
for whom there is no appropriate niche in the framework of the general
law"-'^ Å\ an outlaw by definition Å\ he was completely at the mercy of
the police, which itself did not worry too much about committing a few
illegal acts in order to diminish the country's burden of
indesirables.^-' In other words, the state, insisting on its sovereign
right of expulsion, was forced by
(p.284)
the illegal nature of statelessness into admittedly illegal acts.^" It
smuggled its expelled stateless into the neighboring countries, with
the result that the latter retaliated in kind. The ideal solution of
repatriation, to smuggle the refugee back into his country of origin,
succeeded only in a few prominent instances, partly because a
nontotalitarian police was still restrained by a few rudimentary
ethical considerations, partly because the stateless person was as
likely to be smuggled back from his home country as from any other, and
last but not least because the whole traffic could go on only with
neighboring countries. The consequences of this smuggling were petty
wars between the police at the frontiers, which did not exactly
contribute to good international relations, and an accumulation of jail
sentences for the state- less who. with the help of the police of one
country, had passed "illegally" into the territory of another.
Every attempt by international conferences to establish some legal
status for stateless people failed because no agreement could possibly
replace the territory to which an alien, within the framework of
existing law, must be deportable. All discussions about the refugee
problems revolved around this one question: How can the refugee be made
deportable again? The second World War and the DP camps were not
necessary to show that the only practical substitute for a nonexistent
homeland was an internment camp. Indeed, as early as the thirties this
was the only "country" the world had to offer the stateless.^''
Naturalization, on the other hand, also proved to be a failure. The
whole naturalization system of European countries fell apart when it
was con- fronted with stateless people, and this for the same reasons
that the right of asylum had been set aside. Essentially naturalization
was an appendage to the nation-state's legislation that reckoned only
with "nationals," people born in its territory and citizens by birth.
Naturalization was needed in ex- ceptional cases, for single
individuals whom circumstances might have driven into a foreign
territory. The whole process broke down when it be-
(p.285)
came a question of handling mass applications for naturalization:^^
even from the purely administrative point of view, no European civil
service could possibly have dealt with the problem. Instead of
naturalizing at least a small portion of the new arrivals, the
countries began to cancel earlier naturalizations, partly because of
general panic and partly because the ar- rival of great masses of
newcomers actually changed the always precarious position of
naturalized citizens of the same origin.'*'' Cancellation of natural-
ization or the introduction of new laws which obviously paved the way
for mass denaturalization^" shattered what little confidence the
refugees might have retained in the possibility of adjusting themselves
to a new normal life; if assimilation to the new country once looked a
little shabby or dis- loyal, it was now simply ridiculous. The
difference between a naturalized citizen and a stateless resident was
not great enough to justify taking any trouble, the former being
frequently deprived of important civil rights and threatened at any
moment with the fate of the latter. Naturalized persons were largely
assimilated to the status of ordinary aliens, and since the naturalized
had already lost their previous citizenship, these measures simply
threatened another considerable group with statelessness.
It was almost pathetic to see how helpless the European governments
were, despite their consciousness of the danger of statelessness to
their estab- lished legal and political institutions and despite all
their efforts to stem the tide. Explosive events were no longer
necessary. Once a number of state- less people were admitted to an
otherwise normal country, statelessness spread like a contagious
disease. Not only were naturalized citizens in danger of reverting to
the status of statelessness, but living conditions for all aliens
markedly deteriorated. In the thirties it became increasingly diffi-
(p.286)
cult to distinguish clearly between stateless refugees and normal
resident aliens. Once the government tried to use its right and
repatriate a resident ilien against his will, he would do his utmost to
find refuge in statelessness. During the first World War enemy aliens
had already discovered the great advantages of statelessness. But what
then had been the cunning of in- dividuals who found a loophole in the
law had now become the instinctive reaction of masses. France, Europe's
greatest immigrant-reception area,-*' because she had regulated the
chaotic labor market by calling in alien workers in times of need and
deporting them in times of unemployment and crisis, taught her aliens a
lesson about the advantages of statelessness which they did not readily
forget. After 1935, the year of mass repatriation by the Laval
government from which only the stateless were saved, so-called
"economic immigrants" and other groups of earlier origin Å\ Balkans,
Italians. Poles, and Spaniards Å\ mixed with the waves of refugees into
a tangle that never again could be unraveled.
Much worse than what statelessness did to the time-honored and neces-
sary distinctions between nationals and foreigners, and to the
sovereign right of states in matters of nationality and expulsion, was
the damage suffered by the very structure of legal national
institutions when a grow- ing number of residents had to live outside
the jurisdiction of these laws and without being protected by any
other. The stateless person, without right to residence and without the
right to work, had of course constantly to transgress the law. He was
liable to jail sentences without ever com- mitting a crime. More than
that, the entire hierarchy of values which per- tain in civilized
countries was reversed in his case. Since he was the anomaly for whom
the general law did not provide, it was better for him to become an
anomaly for which it did provide, that of the criminal.
The best criterion by which to decide whether someone has been forced
outside the pale of the law is to ask if he would benefit by committing
a crime. If a small burglary is likely to improve his legal position,
at least temporarily, one may be sure he has been deprived of human
rights. For then a criminal offense becomes the best opportunity to
regain some kind of human equality, even if it be as a recognized
exception to the norm. The one important fact is that this exception is
provided for by law. As a criminal even a stateless person will not be
treated worse than another criminal, that is, he will be treated like
everybody else. Only as an offender against the law can he gain
protection from it. As long as his trial and his sentence last, he will
be safe from that arbitrary police rule against which there are no
lawyers and no appeals. The same man who was in jail yes- terday
because of his mere presence in this world, who had no rights what-
ever and lived under threat of deportation, or who was dispatched
without sentence and without trial to some kind of internment because
he had tried to work and make a living, may become almost a
full-fledged citizen be- cause of a little theft. Even if he is
penniless he can now get a lawyer, com- plain about his jailers, and he
will be listened to respectfully. He is no
(p.287)
longer the scum of the earth but important enough to be informed of all
the details of the law under which he will be tried. He has become a
re- spectable person. ^2
A much less reliable and much more difficult way to rise from an un-
recognized anomaly to the status of recognized exception would be to
be- come a genius. Just as the law knows only one difference between
human beings, the difference between the normal noncriminal and the
anomalous criminal, so a conformist society has recognized only one
form of determined individualism, the genius. European bourgeois
society wanted the genius to stay outside of human laws, to be a kind
of monster whose chief social function was to create excitement, and it
did not matter if he actually was an outlaw. Moreover, the loss of
citizenship deprived people not only of protection, but also of all
clearly established, officially recognized identity, a fact for which
their eternal feverish efforts to obtain at least birth certifi- cates
from the country that denationalized them was a very exact symbol; one
of their problems was solved when they achieved the degree of dis-
tinction that will rescue a man from the huge and nameless crowd. Only
fame will eventually answer the repeated complaint of refugees of all
social strata that "nobody here knows who I am"; and it is true that
the chances of the famous refugee are improved just as a dog with a
name has a better chance to survive than a stray dog who is just a dog
in general.^"'
The nation-state, incapable of providing a law for those who had lost
the protection of a national government, transferred the whole matter
to the police. This was the first time the police in Western Europe had
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 min- istries.^* Its strength and its emancipation from
law and government grew in direct proportion to the influx of refugees.
The greater the ratio of state-
(p.288)
less and potentially stateless to the population at large Å\ in prewar
France it had reached 10 per cent of the total Å\ the greater the
danger of a gradual transformation into a police state.
It gcK-s without saying that the totalitarian regimes, where the police
had risen to the peak of power, were especially eager to consolidate
this power through the domination over vast groups of people, who,
regardless of any offenses committed by individuals, found themselves
anyway be- yond the pale of the law. In Nazi Germany, the Nuremberg
Laws with their distinction between Reich citizens (full citizens) and
nationals (second- class citizens without political rights) had paved
the way for a development in which eventually all nationals of "alien
blood" could lose their nation- ality by official decree; only the
outbreak of the war prevented a corre- sponding legislation, which had
been prepared in detail. ^*^ On the other hand, the increasing groups
of stateless in the nontotalitarian countries led to a form of
lawlessness, organized by the police, which practically resulted in a
co-ordination of the free world with the legislation of the
totalitarian countries. That concentration camps were ultimately
provided for the same groups in all countries, even though there were
considerable differences in the treatment of their inmates, was all the
more characteristic as the selection of the groups was left exclusively
to the initiative of the totalitarian regimes: if the Nazis put a
person in a concentration camp and if he made a successful escape, say,
to Holland, the Dutch would put him in an internment camp. Thus, long
before the outbreak of the war 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 and the GPU,
so that one might say there existed an independ- ent foreign policy of
the police. This police-directed foreign policy func- tioned quite
independently of the official governments; the relations between the
Gestapo and the French police were never more cordial than at the
(p.289)
time of Leon Blum's popular-front government, which was guided by a
decidedly anti-German policy. Contrary to the governments, the various
police organizations were never overburdened with "prejudices" against
any totalitarian regime; the information and denunciations received
from GPU agents were just as welcome to them as those from Fascist or
Gestapo agents. They knew about the eminent role of the police
apparatus in all totalitarian regimes, they knew about its elevated
social status and po- litical importance, and they never bothered to
conceal their sympathies. That the Nazis eventually met with so
disgracefully little resistance from the police in the countries they
occupied, and that they were able to or- ganize 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 stateless and
refugees.
Both in the history of the "nation of minorities" and in the formation
of a stateless people, Jews have played a significant role. They were
at the head of the so-called minority movement because of their great
need for protec- tion (matched only by the need of the Armenians) and
their excellent inter- national connections, but above all because they
formed a majority in no country and therefore could be regarded as the
minorite par excellence, i.e., the only minority whose interests could
be defended only by internationally guaranteed protection.^^
The special needs of the Jewish people were the best possible pretext
for denying that the Treaties were a compromise between the new
nations' tendency forcefully to assimilate alien peoples and
nationalities who for reasons of expediency could not be granted the
right to national self- determination.
A similar incident made the Jews prominent in the discussion of the
ref- ugee and statelessness problem. The first Heimatlose or apatrides,
as they were created by the Peace Treaties, were for the most part Jews
who came from the succession states and were unable or unwilling to
place themselves under the new minority protection of their homelands.
Not until Germany forced German Jewry into emigration and statelessness
did they form a very considerable portion of the stateless people. But
in the years following Hitler's successful persecution of German Jews
all the minority countries began to think in terms of expatriating
their minorities, and it was only natural that they should start with
the minorite par excellence, the only nationality that actually had no
other protection than a minority system which by now had become a
mockery.
The notion that statelessness is primarily a Jewish problem*^ was a pre-
(p.290)
text used by all governments who tried to settle the problem by
ignoring it. None of the statesmen was aware that Hitler's solution of
the Jewish prob- lem, first to reduce the German Jews to a
nonrecognized minority in Ger- many, then to drive them as stateless
people across the borders, and finally to gather them back from
everywhere in order to ship them to extermination camps, was an
eloquent demonstration to the rest of the world how really to
"liquidate" all problems concerning minorities and stateless. After the
war it turned out that the Jewish question, which was considered the
only insoluble one, was indeed solved Å\ namely, by means of a
colonized and then conquered territory Å\ but this solved neither the
problem of the minorities nor the stateless. On the contrary, like
virtually all other events of our century, the solution of the Jewish
question merely produced a new category of refugees, the Arabs, thereby
increasing the number of the stateless and rightless by another 700,000
to 800,000 people. And what happened in Palestine within the smallest
territory and in terms of hundreds of thousands was then repeated in
India on a large scale in- volving many millions of people. Since the
Peace Treaties of 1919 and 1920 the refugees and the stateless have
attached themselves like a curse to all the newly established states on
earth which were created in the image of the nation-state.
For these new states this curse bears the germs of a deadly sickness.
For the nation-state cannot exist once its principle of equality before
the law has broken down. Without this legal equality, which originally
was des- tined to replace the older laws and orders of the feudal
society, the nation dissolves into an anarchic mass of over- and
underprivileged individuals. Laws that are not equal for all revert to
rights and privileges, something contradictory to the very nature of
nation-states. The clearer the proof of their inability to treat
stateless people as legal persons and the greater the extension of
arbitrary rule by police decree, the more difficuh it is for states to
resist the temptation to deprive all citizens of legal status and rule
them with an omnipotent police.
II: The Perplexities of the Rights of Man
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. Independent of the privileges
which history had bestowed upon certain strata of society or certain
nations, the declara- tion indicated man's emancipation from all
tutelage and announced that he had now come of age.
(p.291)
Beyond this, there was another implication of which the framers of the
declaration were only half aware. The proclamation of human rights was
also meant to be a much-needed protection in the new era where
individuals were no longer secure in the estates to which they were
born or sure of their equality before God as Christians. In other
words, in the new secu- larized and emancipated society, men were no
longer sure of these social and human rights which until then had been
outside the political order and guaranteed not by government and
constitution, but by social, spiritual, and religious forces. Therefore
throughout the nineteenth century, the consensus of opinion was that
human rights had to be invoked whenever individuals needed protection
against the new sovereignty of the state and the new arbitrariness of
society.
Since the Rights of Man were proclaimed to be "inalienable,"
irreducible to and undeducible from other rights or laws, no authority
was invoked for their establishment; Man himself was their source as
well as their ultimate goal. No special law, moreover, was deemed
necessary to protect them be- cause all laws were supposed to rest upon
them. Man appeared as the only sovereign in matters of law as the
people was proclaimed the only sovereign in matters of government. The
people's sovereignty (different from that of the prince) was not
proclaimed by the grace of God but in the name of Man, so that it
seemed only natural that the "inalienable" rights of man would find
their guarantee and become an inalienable part of the right of the
people to sovereign self-government.
In other words, man had hardly appeared as a completely emancipated,
completely isolated being who carried his dignity within himself
without ref- erence to some larger encompassing order, when he
disappeared again into a member of a people. From the beginning the
paradox involved in the dec- laration of inalienable human rights was
that it reckoned with an "abstract" human being who seemed to exist
nowhere, for even savages lived in some kind of a social order. If a
tribal or other "backward" community did not enjoy human rights, it was
obviously because as a whole it had not yet reached that stage of
civilization, the stage of popular and national sov- ereignty, but was
oppressed by foreign or native despots. The whole ques- tion of human
rights, therefore, was quickly and inextricably blended with the
question of national emancipation; only the emancipated sovereignty of
the people, of one's own people, seemed to be able to insure them. As
mankind, since the French Revolution, was conceived in the image of a
family of nations, it gradually became self-evident that the people,
and not the individual, was the image of man.
The full implication of this identification of the rights of man with
the rights of peoples in the European nation-state system came to light
only when a growing number of people and peoples suddenly appeared
whose elementary rights were as little safeguarded by the ordinary
functioning of nation-states in the middle of Europe as they would have
been in the heart of Africa. The Rights of Man, after all, had been
defined as "inalienable" because they were supposed to be independent
of all governments; but it
(p.292)
turned out that the moment human beings lacked their own government and
had to fall back upon their minimum rights, no authority was left to
protect them and no institution was willing to guarantee them. Or when,
as in the case of the minorities, an international body arrogated to
itself a nongovern- mental authority, its failure was apparent even
before its measures were fully realized; not only were the governments
more or less openly opposed to this encroachment on their sovereignty,
but the concerned nationalities themselves did not recognize a
nonnational guarantee, mistrusted everything which was not clear-cut
support of their "national" (as opposed to their mere "linguistic,
religious, and ethnic") rights, and preferred either, like the Germans
or Hungarians, to turn to the protection of the "national" mother
country, or, like the Jews, to some kind of interterritorial
solidarity."*"^
The stateless people were as convinced as the minorities that loss of
na- tional rights was identical with loss of human rights, that the
former in- evitably entailed the latter. The more they were excluded
from right in any form, the more they tended to look for a
reintegration into a national, into their own national community. The
Russian refugees were only the first to insist on their nationality and
to defend themselves furiously against attempts to lump them together
with other stateless people. Since them, not a single group of refugees
or Displaced Persons has failed to develop a fierce, violent group
consciousness and to clamor for rights as Å\ and only as Å\ Poles or
Jews or Germans, etc.
Even worse was that all societies formed for the protection of the
Rights of Man, all attempts to arrive at a new bill of human rights
were sponsored by marginal figures Å\ by a few international jurists
without political experi- ence or professional philanthropists
supported by the uncertain sentiments of professional idealists. The
groups they formed, the declarations they is- sued, showed an uncanny
similarity in language and composition to that of societies for the
prevention of cruelty to animals. No statesman, no po- litical figure
of any importance could possibly take them seriously; and none of the
liberal or radical parties in Europe thought it necessary to
incorporate into their program a new declaration of human rights.
Neither before nor after the second World War have the victims
themselves ever invoked these fundamental rights, which were so
evidently denied them, in their many attempts to find a way out of the
barbed-wire labyrinth into which events had driven them. On the
contrary, the victims shared the disdain
(p.293)
and indifference of the powers that be for any attempt of the marginal
so- cieties to enforce human rights in any elementary or general sense.
The failure of all responsible persons to meet the calamity of an ever-
growing body of people forced to live outside the scope of all tangible
law with the proclamation of a new bill of rights was certainly not due
to ill will. Never before had the Rights of Man, solemnly proclaimed by
the French and the American revolutions as the new fundament for
civilized societies, been a practical political issue. During the
nineteenth century, these rights had been invoked in a rather
perfunctory way, to defend indi- viduals against the increasing power
of the state and to mitigate the new social insecurity caused by the
industrial revolution. Then the meaning of human rights acquired a new
connotation: they became the standard slogan of the protectors of the
underprivileged, a kind of additional law, a right of exception
necessary for those who had nothing better to fall back upon.
The reason why the concept of human rights was treated as a sort of
stepchild by nineteenth-century political thought and why no liberal or
radical party in the twentieth century, even when an urgent need for
en- forcement of human rights arose, saw fit to include them in its
program seems obvious: civil rights Å\ that is the varying rights of
citizens in different countries Å\ were supposed to embody and spell
out in the form of tangible laws the eternal Rights of Man, which by
themselves were supposed to be independent of citizenship and
nationality. All human beings were citizens of some kind of political
community; if the laws of their country did not live up to the demands
of the Rights of Man, they were expected to change them, by legislation
in democratic countries or through revolutionary action in despotisms.
The Rights of Man, supposedly inalienable, proved to be unenforceable
Å\ even in countries whose constitutions were based upon them Å\
whenever people appeared who were no longer citizens of any sovereign
state. To this fact, disturbing enough in itself, one must add the
confusion created by the many recent attempts to frame a new bill of
human rights, which have demonstrated that no one seems able to define
with any assurance what these general human rights, as distinguished
from the rights of citizens, really are. Although everyone seems to
agree that the plight of these people consists precisely in their loss
of the Rights of Man, no one seems to know which rights they lost when
they lost these human rights.
The first loss which the rightless suffered was the loss of their
homes, and this meant the loss of the entire social texture into which
they were born and in which they established for themselves a distinct
place in the world. This calamity is far from unprecedented; in the
long memory of history, forced migrations of individuals or whole
groups of people for political or economic reasons look like everyday
occurrences. What is unprecedented is not the loss of a home but the
impossibility of finding a new one. Suddenly, there was no place on
earth where migrants could go without the severest restric- tions, no
country where they would be assimilated, no territory where they could
found a new community of their own. This, moreover, had next to
(p.294)
nothing to do with any material problem of overpopulation; it was a
prob- lem not of space but of political organization. Nobody had been
aware that mankind, for so long a time considered under the image of a
family of na- tions, had reached the stage where whoever was thrown out
of one of these tightly organized closed communities found himself
thrown out of the family of nations altogether.^'*
The second loss which the rightless suffered was the loss of government
protection, and this did not imply just the loss of legal status in
their own, but in all countries. Treaties of reciprocity and
international agreements have woven a web around the earth that makes
it possible for the citizen of every country to take his legal status
with him no matter where he goes (so that, for instance, a German
citizen under the Nazi regime might not be able to enter a mixed
marriage abroad because of the Nuremberg laws). Yet. whoever is no
longer caught in it finds himself out of legality altogether (thus
during the last war stateless people were invariably in a worse
position than enemy aliens who were still indirectly protected by their
governments through international agreements).
By itself the loss of government protection is no more unprecedented
than the loss of a home. Civilized countries did offer the right of
asylum to those who. for political reasons, had been persecuted by
their governments, and this practice, though never officially
incorporated into any constitution, has functioned well enough
throughout the nineteenth and even in our century. Tlie trouble arose
when it appeared that the new categories of persecuted were far too
numerous to be handled by an unofficial practice destined for
exceptional cases. Moreover, the majority could hardly qualify for the
right of asylum, which implicitly presupposed political or religious
convictions which were not outlawed in the country of refuge. The new
refugees were persecuted not because of what they had done or thought,
but because of what they unchangeably were Å\ born into the wrong kind
of race or the wrong kind of class or drafted by the wrong kind of
government (as in the case of the Spanish Republican Army).^"'
The more the number of rightless people increased, the greater became
the temptation to pay less attention to the deeds of the persecuting
govern- ments than to the status of the persecuted. And the first
glaring fact was that these people, though persecuted under some
political pretext, were no
(p.295)
longer, as the persecuted had been throughout history, a liability and
an image of shame for the persecutors; that they were not considered
and hardly pretended to be active enemies (the few thousand Soviet
chizens who voluntarily left Soviet Russia after the second World War
and found asylum in democratic countries did more damage to the
prestige of the Soviet Union than millions of refugees in the twenties
who belonged to the wrong class), but that they were and appeared to be
nothing but human beings whose very innocence Å\ from every point of
view, and especially that of the persecuting government Å\ was their
greatest misfortune. Innocence, in the sense of com- plete lack of
responsibility, was the mark of their rightlessness as it was the seal
of their loss of political status.
Only in appearance therefore do the needs for a reinforcement of human
rights touch upon the fate of the authentic political refugee.
Political ref- ugees, of necessity few in number, still enjoy the right
to asylum in many countries, and this right acts, in an informal way,
as a genuine substitute for national law.
One of the surprising aspects of our experience with stateless people
who benefit legally from committing a crime has been the fact that it
seems to be easier to deprive a completely innocent person of legality
than someone who has committed an offense. Anatole France's famous
quip, "If I am accused of stealing the towers of Notre Dame, I can only
flee the country," has assumed a horrible reality. Jurists are so used
to thinking of law in terms of punishment, which indeed always deprives
us of certain rights, that they may find it even more difficult than
the layman to recognize that the depriva- tion of legality, i.e., of
all rights, no longer has a connection with specific crimes.
This situation illustrates the many perplexities inherent in the
concept of human rights. No matter how they have once been defined
(life, liberty, and the pursuit of happiness, according to the American
formula, or as equality before the law, liberty, protection of
property, and national sovereignty, according to the French); no matter
how one may attempt to improve an ambiguous formulation like the
pursuit of happiness, or an antiquated one like unqualified right to
property; the real situation of those whom the twentieth century has
driven outside the pale of the law shows that these are rights of
citizens whose loss does not entail absolute rightlessness. The sol-
dier during the war is deprived of his right to life, the criminal of
his right to freedom, all citizens during an emergency of their right
to the pursuit of happiness, but nobody would ever claim that in any of
these instances a loss of human rights has taken place. These rights,
on the other hand, can be granted (though hardly enjoyed) even under
conditions of fundamental rightlessness.
The calamity of the rightless is not that they are deprived of life,
liberty, and the pursuit of happiness, or of equality before the law
and freedom of opinion Å\ formulas which were designed to solve
problems within given communities Å\ but that they no longer belong to
any community whatso- ever. Their plight is not that they are not equal
before the law, but that no
(p.296)
law exists for them; not that they are oppressed but that nobody wants
even to oppress them. Only in the last stage of a rather lengthy
process is their right to live threatened; only if they remain
perfectly "superfluous," if no- btxly can be found to "claim" them, may
their lives be in danger. Even the Nazis started their extermination of
Jews by first depriving them of all legal status (the status of
second-class citizenship) and cutting them off from the world of the
living by herding them into ghettos and concentration camps; and before
they set the gas chambers into motion they had carefully tested the
ground and found out to their satisfaction that no country would claim
these people. The point is that a condition of complete rightlessness
was created before the right to live was challenged.
The same is true even to an ironical extent with regard to the right of
freedom which is sometimes considered to be the very essence of human
rights. There is no question that those outside the pale of the law may
have more freedom of movement than a lawfully imprisoned criminal or
that they enjoy more freedom of opinion in the internment camps of
democratic countries than they would in any ordinary despotism, not to
mention in a totalitarian country."'" But neither physical safety Å\
being fed by some state or private welfare agency Å\ nor freedom of
opinion changes in the least their fundamental situation of
rightlessness. The prolongation of their lives is due to charity and
not to right, for no law exists which could force the nations to feed
them; their freedom of movement, if they have it at all, gives them no
right to residence which even the jailed criminal enjoys as a matter of
course; and their freedom of opinion is a fool's freedom, for nothing
they think matters anyhow.
These last points are crucial. The fundamental deprivation of human
rights is manifested first and above all in the deprivation of a place
in the world which makes opinions significant and actions effective.
Something much more fundamental than freedom and justice, which are
rights of cit- izens, is at stake when belonging to the community into
which one is born is no longer a matter of course and not belonging no
longer a matter of choice, or when one is placed in a situation where,
unless he commits a crime, his treatment by others does not depend on
what he does or does not do. This extremity, and nothing else, is the
situation of people deprived of human rights. They are deprived, not of
the right to freedom, but of the right to action; not of the right to
think whatever they please, but of the right to opinion. Privileges in
some cases, injustices in most, blessings and doom are meted out to
them according to accident and without any relation whatsoever to what
they do, did, or may do.
We became aware of the existence of a right to have rights (and that
means to live in a framework where one is judged by one's actions and
(p.297)
opinions) and a 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. The trouble
is that this calamity arose not from any lack of civilization,
backwardness, or mere tyranny, but, on the contrary, that it could not
be repaired, because there was no longer any "uncivilized" spot on
earth, because whether we like it or not we have really started to live
in One World. Only with a completely organized humanity could the loss
of home and political status become identical with expulsion from
humanity altogether.
Before this, what we must call a "human right" today would have been
thought of as a general characteristic of the human condition which no
tyrant could take away. Its loss entails the loss of the relevance of
speech (and man, since Aristotle, has been defined as a being
commanding the power of speech and thought), and the loss of all human
relationship (and man, again since Aristotle, has been thought of as
the "political animal," that is one who by definition lives in a
community), the loss, in other words, of some of the most essential
characteristics of human life. This was to a certain extent the plight
of slaves, whom Aristotle therefore did not count among human beings.
Slavery's fundamental offense against human rights was not that it took
liberty away (which can happen in maii.y other situa- tions), but that
it excluded a certain category of people even from the pos- sibility of
fighting for freedom Å\ a fight possible under tyranny, and even under
the desperate conditions of modern terror (but not under any condi-
tions of concentration-camp life). Slavery's crime against humanity did
not begin when one people defeated and enslaved its enemies (though of
course this was bad enough), but when slavery became an institution in
which some men were "born" free and others slave, when it was forgotten
that it was man who had deprived his fellow-men of freedom, and when
the sanc- tion for the crime was attributed to nature. Yet in the light
of recent events it is possible to say that even slaves still belonged
to some sort of human community; their labor was needed, used, and
exploited, and this kept them within the pale of humanity. To be a
slave was after all to have a distinctive character, a place in society
Å\ more than the abstract nakedness of being human and nothing but
human. Not the loss of specific rights, then, but the loss of a
community willing and able to guarantee any rights whatsoever, has been
the calamity which has befallen ever-increasing numbers of people. Man,
it turns out, can lose all so-called Rights of Man without losing his
essential quality as man, his human dignity. Only the loss of a polity
itself expels him from humanity.
The right that corresponds to this loss and that was never even men-
tioned among the human rights cannot be expressed in the categories of
the eighteenth century because they presume that rights spring
immediately from the "nature" of man Å\ whereby it makes relatively
little difference whether this nature is visualized in terms of the
natural law or in terms of a being created in the image of God, whether
it concerns "natural" rights or divine commands. The decisive factor is
that these rights and the human dignity they bestow should remain valid
and real even if only a single human
(p.298)
being existed on earth; they are independent of human plurality and
should remain valid even if a human being is expelled from the human
community.
When the Rights of Man were proclaimed for the first time, they were
regarded as being independent of history and the privileges which
history had accorded certain strata of society. The new independence
constituted the newly discovered dignity of man. From the beginning,
this new dignity was of a rather ambiguous nature. Historical rights
were replaced by natural rights, "nature" took the place of history,
and it was tacitly assumed that nature was less alien than history to
the essence of man. The very language of the Declaration of
Independence as well as of the Declaration des Droits de I'Homme Å\
"inalienable," "given with birth," "self-evident truths" Å\ im- plies
the belief in a kind of human "nature" which would be subject to the
same laws of growth as that of the individual and from which rights and
laws could be deduced. Today we are perhaps better qualified to judge
exactly what this human "nature" amounts to; in any event it has shown
us potentialities that were neither recognized nor even suspected by
West- ern philosophy and religion, which for more than three thousand
years have defined and redefined this "nature." But it is not only the,
as it were, human aspect of nature that has become questionable to us.
Ever since man learned to master it to such an extent that the
destruction of all organic life on earth with man-made instruments has
become conceivable and technically possible, he has been alienated from
nature. Ever since a deeper knowledge of natural processes instilled
serious doubts about the existence of natural laws at all, nature
itself has assumed a sinister aspect. How should one be able to deduce
laws and rights from a universe which apparently knows neither the one
nor the other category?
Man of the twentieth century has become just as emancipated from nature
as eighteenth-century man was from history. History and nature have
become equally alien to us, namely, in the sense that the essence of
man can no longer be comprehended in terms of either category. On the
other hand, humanity, which for the eighteenth century, in Kantian
terminology, was no more than a regulative idea, has today become an
inescapable fact. This new situation, in which "humanity" has in effect
assumed the role formerly ascribed to nature or history, would mean in
this context that the right to have rights, or the right of every
individual to belong to hu- manity, should be guaranteed by humanity
itself. It is by no means certain whether this is possible. For,
contrary to the best-intentioned humanitarian attempts to obtain new
declarations of human rights from international or- ganizations, it
should be understood that this idea transcends the present sphere of
international law which still operates in terms of reciprocal agree-
ments and treaties between sovereign states; and, for the time being, a
sphere that is above the nations does not exist. Furthermore, this
dilemma would by no means be eliminated by the establishment of a
"world gov- ernment." Such a world government is indeed within the
realm of possibility, but one may suspect that in reality it might
differ considerably from the ver- sion promoted by idealistic-minded
organizations. The crimes against hu- man rights, which have become a
specialty of totalitarian regimes, can always
(p.299)
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 the vulgarized
form of a conception of law which can be found everywhere and which in
practice will remain ineffectual only so long as older traditions that
are still effective in the constitutions prevent this.) A conception of
law which identifies what is right with the notion of what is good for
Å\ for the individual, or the family, or the people, or the largest
number Å\ becomes inevitable once the absolute and transcendent
measurements of religion or the law of nature have lost their
authority. And this predicament is by no means solved if the unit to
which the "good for" applies is as large as mankind itself. For it is
quite conceivable, and even within the realm of practical political
possibilities, that one fine day a highly organized and mechanized
humanity will conclude quite democratically Å\ namely by majority
decision Å\ that for humanity as a whole it would be better to
liquidate certain parts thereof. Here, in the problems of factual
reality, we are confronted with one of the oldest per- plexities of
political philosophy, which could remain undetected only so long as a
stable Christian theology provided the framework for all political and
philosophical problems, but which long ago caused Plato to say: "Not
man, but a god, must be the measure of all things."
These facts and reflections offer what seems an ironical, bitter, and
be- lated confirmation of the famous arguments with which Edmund Burke
opposed the French Revolution's Declaration of the Rights of Man. They
appear to buttress his assertion that human rights were an
"abstraction," that it was much wiser to rely on an "entailed
inheritance" of rights which one transmits to one's children like life
itself, and to claim one's rights to be the "rights of an Englishman"
rather than the inalienable rights of man.^^ According to Burke, the
rights which we enjoy spring "from within the na- tion," so that
neither natural law, nor divine command, nor any concept of mankind
such as Robespierre's "human race," "the sovereign of the earth," are
needed as a source of law.^^
The pragmatic soundness of Burke's concept seems to be beyond doubt in
the light of our manifold experiences. Not only did loss of national
rights in all instances entail the loss of human rights; the
restoration of human rights, as the recent example of the State of
Israel proves, has been achieved so far only through the restoration or
the establishment of national rights. 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 in- deed lost all other
qualities and specific relationships Å\ except that they were still
human. The world found nothing sacred in the abstract nakedness of
being human. And in view of objective political conditions, it is hard
to say how the concepts of man upon which human rights are based Å\
that he is
(p.300)
created in the image of God (in the American formula), or that he is
the a'prcsentativc of mankind, or that he harbors within himself the
sacred de- mands of natural law (in the French formula) Å\ could have
helped to find a solution to the problem.
The survivors of the extermination camps, the inmates of concentration
and internment camps, and even the comparatively happy stateless people
could see without Burke's arguments that the abstract nakedness of
being nothing but human was their greatest danger. Because of it they
were re- garded as savages and, afraid that they might end by being
considered beasts, they insisted on their nationality, the last sign of
their former citizenship, as their only remaining and recognized tie
with humanity. Their distrust of natural, their preference for
national, rights comes precisely from their real- ization that natural
rights are granted even to savages. Burke had already feared that
natural "inalienable" rights would confirm only the "right of the naked
savage,""''' and therefore reduce civilized nations to the status of
sav- agery. Because only savages have nothing more to fall back upon
than the minimum fact of their human origin, people cling to their
nationality all the more desperately when they have lost the rights and
protection that such nationality once gave them. Only their past with
its "entailed inheritance" seems to attest to the fact that they still
belong to the civilized world.
If a human being loses his political status, he should, according to
the implications of the inborn and inalienable rights of man, come
under exactly the situation for which the declarations of such general
rights provided. Actually the opposite is the case. It seems that a man
who is nothing but a man has lost the very qualities which make it
possible for other people to treat him as a fellow-man. This is one of
the reasons why it is far more dif- ficult to destroy the legal
personality of a criminal, that is of a man who has taken upon himself
the responsibility for an act whose consequences now determine his
fate, than of a man who has been disallowed all common hu- man
responsibilities.
Burke's arguments therefore gain an added significance if we look only
at the general human condition of those who have been forced out of all
political communities. Regardless of treatment, independent of
liberties or oppression, justice or injustice, they have lost all those
parts of the world and all those aspects of human existence which are
the result of our common labor, the outcome of the human artifice. If
the tragedy of savage tribes is that they inhabit an unchanged nature
which they cannot master, yet upon whose abundance or frugality they
depend for their livelihood, that they live and die without leaving any
trace, without having contributed anything to a common world, then
these rightless people are indeed thrown back into a peculiar state of
nature. Certainly they are not barbarians; some of them, indeed, belong
to the most educated strata of their respective countries;
nevertheless, in a world that has almost liquidated savagery, they
appear as the first signs of a possible regression from civilization.
The more highly developed a civilization, the more accomplished the
(p.301)
world it has produced, the more at home men feel within the human
artifice Å\ the more they will resent everything they have not
produced, everything that is merely and mysteriously given them. The
human being who has lost his place in a community, his political status
in the struggle of his time, and the legal personality which makes his
actions and part of his destiny a con- sistent whole, is left with
those qualities which usually can become articulate only in the sphere
of private life and must remain unqualified, mere exist- ence in all
matters of public concern. This mere existence, that is, all that which
is mysteriously given us by birth and which includes the shape of our
bodies and the talents of our minds, can be adequately dealt with only
by the unpredictable hazards of friendship and sympathy, or by the
great and incalculable grace of love, which says with Augustine, "Volo
ut sis (I want you to be)," without being able to give any particular
reason for such supreme and unsurpassable affirmation.
Since the Greeks, we have known that highly developed political life
breeds a deep-rooted suspicion of this private sphere, a deep
resentment against the disturbing miracle contained in the fact that
each of us is made as he is Å\ single, unique, unchangeable. This whole
sphere of the merely given, relegated to private life in civilized
society, is a permanent threat to the public sphere, because the public
sphere is as consistently based on the law of equality as the private
sphere is based on the law of universal dif- ference and
differentiation. Equality, in contrast to all that is involved in mere
existence, is not given us, but is the result of human organization
inso- far 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
com- mon world, together with his equals and only with his equals. The
dark background of mere givenness, the background formed by our
unchange- able and unique nature, breaks into the political scene as
the alien which in its all too obvious difference reminds us of the
limitations of human activity Å\ which are identical with the
limitations of human equality. The reason why highly developed
political communities, such as the ancient city- states or modern
nation-states, so often insist on ethnic homogeneity is that they hope
to eliminate as far as possible those natural and always pres- ent
differences and differentiations which by themselves arouse dumb
hatred, mistrust, and discrimination because they indicate all too
clearly those spheres where men cannot act and change at will, i.e.,
the limitations of the human artifice. The "alien" is a frightening
symbol of the fact of difference as such, of individuality as such, and
indicates those realms in which man cannot change and cannot act and in
which, therefore, he has a distinct tendency to destroy. If a Negro in
a white community is considered a Negro and nothing else, he loses
along with his right to equality that freedom of action which is
specifically human; all his deeds are now explained as "nec- essary"
consequences of some "Negro" qualities; he has become some speci-
(p.302)
men of an animal species, called man. Much the same thing happens to
those who have lost all distinctive political qualities and have become
human beings and nothing else. No doubt, wherever public life and its
law of equality are completely victorious, wherever a civilization
succeeds in elim- inating or reducing to a minimum the dark background
of difference, it will end in complete petrifaction and be punished, so
to speak, for having forgotten that man is only the master, not the
creator of the world.
The great danger arising from the existence of people forced to live
out- side the common world is that they are thrown back, in the midst
of civil- ization, on their natural givenness, on their mere
differentiation. They lack that tremendous equalizing of differences
which comes from being citizens of some commonwealth and yet, since
they are no longer allowed to par- take in the human artifice, they
begin to belong to the human race in much the same way as animals
belong to a specific animal species. The par- adox involved in the loss
of human rights is that such loss coincides with the instant when a
person becomes a human being in general Å\ without a profession,
without a citizenship, without an opinion, without a deed by which to
identify and specify himself Å\ and different in general, representing
nothing but his own absolutely unique individuality which, deprived of
expression within and action upon a common world, loses all
significance.
The danger in the existence of such people is twofold: first and more
obviously, their ever-increasing numbers threaten our political life,
our human artifice, the world which is the result of our common and
co-ordi- nated effort in much the same, perhaps even more terrifying,
way as the wild elements of nature once threatened the existence of
man-made cities and countrysides. Deadly danger to any civilization is
no longer likely to come from without. Nature has been mastered and no
barbarians threaten to destroy what they cannot understand, as the
Mongolians threatened Europe for centuries. Even the emergence of
totalitarian governments is a phe- nomenon within, not outside, our
civilization. The danger is that a global, universally interrelated
civilization may produce barbarians from its own midst by forcing
millions of people into conditions which, despite all ap-
p>earances, are the conditions of savages.
++++
Source
from http://www.cscd.osaka-u.ac.jp/user/rosaldo/101010OTHA.htm
Bibliography
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