A Response to Benhabib (Notes on Rights Discourses for the Migrant)

Though global migrations have existed throughout history, the nature of their occurrences in the contemporary moment exposes several issues of increasing complexity pertaining to notions of citizenship, territory, and rights. The influx of refugees, asylum seekers, economic migrants, and others across territorial and hemispheric borders has greatly impacted discourses and practices in law on global and national scales, as well as exposed our own understandings of ourselves: our moral and ethical boundaries, our assumptions of the other, and how we incorporate the foreigner into our communities and polities. In her book The Rights of Others: Aliens, Residents, and Citizens (2004), Seyla Benhabib addresses the philosophical, juridical, and theoretical dilemmas and possibilities of citizenship, political membership, and rights claims in an age of increasing global migrations and the disaggregation of citizenship. Her work is a critical examination of the limits and tensions that exist between universal human rights claims and the self-determination of the sovereign nation-state concerning the rights of the foreigner, and offers new frameworks for juridical and rights discourse and democratic practices in an attempt to move beyond historical and contemporary fissures between notions of universal human rights, global justice, and the sovereign self-determination of the nation-state.

In a time of ever-increasing movements of people across borders, of increasing encounters between “nous et les autres,” and when cultures and societies across the globe are continuing to become increasingly hybrid and interdependent, it is arguably of utmost concern to rethink what is necessary and plausible in terms of protecting the rights of the foreigner, guest, or alien. In terms of realizing a cosmopolitical justice, I argue that we have been in a crisis of imagination. Benhabib brings to our attention that the Universal Declaration of Human Rights is “silent on states’ obligations to grant entry to immigrants, to uphold the right of asylum, and to permit citizenship to alien residents and denizens. Despite the crossborder character of these rights, the Declaration upholds the sovereignty of individual states. Thus a series of internal contradictions between universal human rights and territorial sovereignty are built into the logic of the most comprehensive international law documents in our world” (2004, 11). Furthermore, not only have we been faced with these internal contradictions between the distribution and protection of rights at the levels of the universal and the nation-state, questions of and tensions between moral obligation and ethical directives must be carefully distinguished and openly brought to the table of rights discourse. Yet, in the envisioning of a cosmopolitical justice, what language and frameworks do we have to work from, where are the limits and borders of these frameworks, and what is necessary to begin to expand our discourses and practices concerning a normative theory of global justice? Benhabib, in a most thorough approach, addresses these questions. From critical readings of Immanuel Kant’s cosmopolitan right and Hannah Arendt’s critique of the nation-state, to her discussions concerning disaggregated citizenship and deliberative democracy, Benhabib’s writings offer important groundwork from which we may begin to consider what is possible as new modalities of citizenship and membership emerge. I agree with her argument that subnational and supranational democratic attachments and agencies that are not bounded by the nation-state “ought to be advanced with, rather than in lieu of, existing polities” (2004, 2-3). The questions remain: how, under what conditions, and by what protections?

Beginning with one of the earliest and significant documents in Western philosophy to address these issues, we are asked to consider Kant on hospitality and cosmopolitan right. I found this rereading of Kant especially provocative in that it illuminated elements of the document which may be useful for contemporary discourses, and also where it falls short of its intended aims, hence pointing us to where we may develop and amend a critical and visionary philosophical approach to the concepts of a cosmopolitan federation, the “right” of hospitality, and distinctions between the right of temporary sojourn and the privilege of the permanent visitor. The former being something one can demand, the latter being something that is earned or that must be agreed upon and granted as a special privilege with attendant obligations and duties. Kant states that “hospitality is not a question of philanthropy but of right” (2004, 26), and this particular regulating of interactions is situated at the borders of polity, and within the context of encounter between individuals belonging to different civic entities. Also within the right of hospitality the temporary sojourner cannot be turned away if doing so would cause his destruction. In contemporary practices, I find it significant to note that this article has been incorporated into the Geneva Convention on the Status of Refugees (2004, 35). Signatory countries cannot turn the refugee or asylum seeker away should returning them to their home countries cause them danger, but what happens to them (granted a country does not refuse them entry) in the duration of first entry? Rights, protections, access to resources and other forms of civic, social, and political rights are left to the discretion of the sovereign state. Benhabib states:

The right of hospitality entails a moral claim with potential legal consequences in that the obligation of receiving states to grant temporary residency to foreigners is anchored in a republican cosmopolitical order. Such an order does not have a supreme executive law governing it…The right of hospitality expresses all the dilemmas of a republican cosmopolitical order in a nutshell: namely how to create quasi-legally binding obligations through voluntary commitments and in the absence of an overwhelming sovereign power with the ultimate right of enforcement” (2004, 29).

Again we have the collision between universal rights claims on behalf of the refugee and asylum seeker and the right to discretion of a sovereign nation-state in determining its own conditions of entry, access, political membership, and citizenship. To begin to find some kind of resolution in response to these tensions so that discourses may be conducive toward the production of actual change in civic and juridical practices, Benhabib proposes multiple routes and alternatives – though none perfect as separate mechanisms, yet each potentially flexible enough to accommodate particular contexts, and potentially more effective when considered as a collective set of possibilities. Elements of these proposed routes entail concepts of deliberative democratic practices, democratic iterations, citizenship as social practice, as well as the potentials of disaggregated citizenship and democratic attachments at the subnational and supranational levels.

To begin to delineate a few of the key points of her proposals, I will first highlight a few concepts and statements introduced in Benhabib’s The Claims of Culture (2002). First, she is clear in stating borders are necessary in maintaining the conditions for democracy (i.e. -democratic sovereignty principles), but that the porousness of borders is “necessary, while not sufficient, condition of liberal democracies” (2002, 153). She distinguishes the conditions of entry into a country from those of temporary residency, and each of these in turn from permanent residency and civil incorporation, and then to what she considers the final stage of political membership. She states, “At each of these stages the rights and claims of foreigners, residents, and aliens will be regulated by sovereign polities; but these regulations can be subject to scrutiny, debate, and contestation as well as to protest by those to whom they apply, their advocates, and national and international human rights groups” (2002, 154). This is part of Benhabib’s vision of a deliberative democracy, in which all those who produce or are affected by law openly debate, contest, and participate in what she terms as democratic iterations. In this vision, legal deliberations are transparent and applicable to legislatives, the judiciary, and the executive as well as to civil society associations and the media (2004, 179). It is also significant to note that the sociological components of citizenship which are defined in terms of collective identity, privileges of membership, and social rights and benefits, are “being pulled apart” in what Benhabib terms the disaggregation effect. Examples of this can be seen more concretely within the European Union, and in Southeast Asia and Latin America where ‘flexible citizenship’ is emerging as the norm (2002, 178-179). Under these conditions, is a legally binding standard for universal human rights becoming more plausible?

I would argue that the evidence of disaggregated and other forms of citizenship that are emerging within the twenty-first century, and as a result of contemporary globalization, give us compelling examples of what potentials, however problematic or ambivalent, are beginning to emerge. Benhabib poses the question: is disaggregated citizenship democratic citizenship?

The nation-state is waning; the line between human rights and citizens’ rights is being corroded…. Disaggregated citizenship permits individuals to develop and sustain  multiple allegiances and networks across nation-state boundaries, in inter- as well as transnational contexts. Cosmopolitanism, the concern for the world as if it were one’s polis, is furthered by such multiple, overlapping allegiances which are sustained across communities of language, ethnicity, religion, and nationality (174-175).

Still, this does not guarantee a democratic citizenship – not without the accompaniment and attachment to representative institutions in which there exists an accountability, transparency, and responsibility toward a given constituency. Even given the inherent tensions between democratic legitimacy and the realities of disaggregated citizenship, I think it is crucial to observe these emerging forms of citizenship closely, and begin to actively create new capacities for understanding and advancing new modalities of political membership. Perhaps this will entail creating spaces and conditions under which democratic iterations of public argument, deliberation and exchange through which “universalist rights claims and principles are contested and contextualized” can occur, but more so I would also argue that within an ever-increasingly interdependent world, it is essential for discourses of moral obligation and new ethical directives and structures be placed at the center of these deliberations.

Works Cited:

Benhabib, Seyla. The Claims of Culture: Equality and Diversity in the Global Era. Princeton, NJ:  Princeton University Press, 2002.

The Rights of Others. Cambridge, UK: Cambridge University Press, 2004.

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05 2011

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