What is “freedom”?

It is often the desire of humans and nations to be “free”; free to move, free to speak and free to make choices. This form of freedom holds connotations of independence, emancipation, self-determination and self-governance. These connotations have been argued to encapsulate Eurocentric ideologies of what freedom is perceived to be.

These conceptions of freedom could have been inspired by the 18th century Declaration of the Rights of Man and of the Citizen, of which Article 1 reads, “men are born and remain free and equal in rights”.[1] Iterating that men are “born” free suggests that humans are free simply by being alive, devoid of any political attachments. Article 3 goes on to state, “all men are equal by nature and before the law”.[2] Hannah Arendt argues that this is rarely realised in practice and so the human as described within this Declaration is abstracted and “exists nowhere”.[3] This is to say that, even one’s birth holds political significance as is implicated within some form of social order and power structure. Therefore, the idea that one is born completely devoid of political significance is, again falling within the imagined binary narrative of those who “have” and those who “have not”.[4] Further, because this Declaration implies that human rights are intrinsic to the human simply through their existence, there was no institution apart from the self to ensure these rights were protected.[5] Therefore, this raises the question, if there is no authority to protect human rights, do they exist at all?

French philosopher, Michael Foucault, highlights early indications of the inextricable link between freedom and citizenship by noting the association in Greek text between “freedom and civic freedom”.[6] He asserts that those who were essentially not men (women, children, and slaves) were not politically free with the exception of boys who were deemed “future citizens”.[7] It could be suggested here that citizenship and freedom are closely linked and conflated with the politics in which they are situated. Foucault describes this as “freedom not from ethics but in relation to ethics”[8], again suggesting that freedom does not equate to complete detachment from political authority but is in fact deeply related to it. Peter Fitzpatrick discusses this when looking at the United States of America (USA), claiming that there is nothing new to this relationship between freedom and civic society.[9] He argues that the USA have inserted the notion of naturalised freedom into the essence of their national identity.[10] Therefore, all those who are not American are thus a threat to freedom itself.[11] This then demarcates people into those who are for freedom or have achieved freedom and those who are against freedom and are seen to therefore be “anti-human rights”.[12] This narrative again postulates a relationship between citizenship and human rights in that the USA view themselves as their true bearers. This eludes to a conflation of freedom with human rights and American citizenship.

Human Rights and the Refugee

Applying these ideas to the refugee, it could be suggested that, as the asylum seeker is not protected by any government and is not viewed as a citizen to any state, they do not have access to human rights. Furthermore, state compliance appears to be integral to the protection of those claiming asylum and only after they have achieved refugee status, can their rights as a refugee be exercised. it is therefore very difficult for refugees to assert their human rights prior to legal implementation. This poses a challenge to IHRL in that the state appears to be the determining factor for protecting the human rights of refugees.

In order to look at this more closely, it may be equally important to understand whether human rights are given to us by a state or if they are always there and it is rather a matter of protecting them. Edmund Burke argues that rights “spring within the nation” and thus any form of law that claims human rights to “transcend nations” should not be considered.[13] Furthermore, this blog has already considered the idea that the concept of being born free and thus human rights are intrinsic to the human life has been viewed as an abstract and possibly less productive way of pursuing human rights discourse. However, at the same time as it is problematic to suggest one’s freedoms are pre-existent and transcendent of any authority, maybe they are best placed to be protected by a transcendent discipline such as IHRL. Jill Stauffer argued, “only a citizen has meaningful rights”[14]. It could be therefore, that human rights are fundamental to the human but it is the state that applies meaning. This may require reimagining human rights discourse where meaning is derived through an interaction with international institutions and by so doing, state discretion is diminished.

[1] France: Declaration of the Right of Man and the Citizen (adopted 26 August 1789). Article 1. [2] Ibid. Article 3. [3] Hannah Arendt, ‘The Decline of the Nation-State and the End of the Rights of Man’, Hannah Arendt (ed), The Origins of Totalitarianism, (Schoken Books 1951). p. 291. [4] Ibid. [5] Ibid. p. 262. [6] Bat-Ami Bar, On, The History of Sexuality (Book), Educational Studies, Vol. 23, No. 3, (1993), p. 288. [7] Ibid. [8] Bat-Ami Bar, On, The History of Sexuality (Book), Educational Studies, Vol. 23, No. 3, (1993), p. 290. [9] Peter Fitzpatrick, ‘Terminal Legality? Human Rights and Critical Being’, Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Law, Nation and the Global Subject, (Ashgate Publishing Limited, 2004), p. 120. [10] Ibid. [11] Ibid. p. 122. [12] Ibid. [13] Edmund Burke, Reflections on the Revolution in France and Other Writings, (Everyman’s Library, 2015). [14] Jill Stauffer, ‘The Fiction of the State of Nature in Real Time: The Social Contract, International Human Rights and the Refugee’, Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Law, Nation and the Global Subject, (Ashgate Publishing Limited, 2004), p. 8.