On Foreign Grounds:Rethinking work rights and political rights of non-members in the framework of human rights based on non-humiliation

In: van Egmond , C G G 2021 , ' On Foreign Grounds : Rethinking work rights and political rights of non-members in the framework of human rights based on non-humiliation ' , PhD , Vrije Universiteit Amsterdam , s.l. .

Abstract

Migrants occupy a special place within the discourse of human rights. They live their lives in a country which is not their own, putting a claim on communities, to which they are not a member, to recognize them as rights-bearers. They do so on the basis of their membership to the family of human beings, which defines the core of what it means to have human rights. At the same time, the framework of human rights as the corner stone of international law endorses the self-sovereignty of bounded political communities that inevitably divides between insiders and outsiders. During the first decades of the human rights movement, this discrepancy between universal personhood and the sovereignty of states was easily ignored as the dominant worldview rested comfortably on the assumption that all residents of states were members. The presence of non-members within the border of the state was considered an anomaly, a consequence of war and other human inflicted horrors that the human rights framework precisely intended to prevent. Since the 1960s, the share of migrants in the global population fluctuates around the 3 percent, and the issue of migration has appeared on the political agenda of most countries, whether sending, transit or host countries. The focus shifted from refugee protection to national security and border control, and organized migration became progressively more restrictive, selective, and temporary. These changes severely eroded the agency and negotiation power of migrants. Migration has become an increasingly risky and hazardous undertaking. Refugees, asylum seekers, and migrant workers are subject to exclusionary policies and get caught up quite easily in situations that could be considered humiliating and degrading. It raises the question whether the framework of human rights is fit to respond adequately to the phenomenon of migration. Can the human rights accorded to non-members protect them against violations of their dignity? What rights should a person be able to claim when states are committed to leaving the self-respect of all people under their jurisdiction intact, including those people who are considered to be outsiders because they are not citizens? In this thesis, I answer these questions by positioning the non-member as the core representant of the rights-holder. Focusing on harms inflicted on citizens teaches us about states failing to measure up to the commitments that are part of the framework of human rights. A focus on non-members adds something else; it draws our attention to existing gaps within human rights law. Acknowledging that the foundational concept of human dignity is open to multiple interpretations, I propose the notion of non-humiliation as the bare minimum of what dignity should entail. My interpretation of the concept of non-humiliation finds its origin in the ideas of Avishai Margalit. The principal motifs in humiliation are rejection and the loss of basic control. An account of human rights that interprets human dignity as non-humiliation can be described as philosophia negativa, meaning that the absence of harm takes precedence over the pursuit of the ideal of justice. Based on this thin understanding of human dignity, I re-evaluate the human rights currently claimable by non-members in the realms of work and politics. Based on an understanding of work as a capacity that should be one's inalienable property, I propose to complement the current package of work entitlements with a general right not to be prohibited from working. Based on an understanding of political agency as an essential part of self-expression and belonging, I propose to widen the current human rights regime with a right to consultation, and a right to renounce one's nationality and thereby to claim membership in the host community.