'The Right to Have Rights': Undocumented Migrants and State Protection
22 Pages Posted: 27 Sep 2015 Last revised: 5 Nov 2015
Date Written: September 25, 2015
Critiques of the concept and framework of international human rights are relatively rare in legal scholarship. The legal academy tends to reify international human rights law as offering solutions to all of the worlds’ problems, if we could just convince countries to implement it properly. Among the small group of legal scholars who have put forward thoughtful critical perspectives on human rights law, only a handful have explicitly extended this critique to the situation of undocumented migrants under international human rights law. Though these scholars are pushing the boundaries of contemporary legal thought, they share a common foremother who grappled with similar concerns more than a half century ago: Hannah Arendt.
This article, written for a symposium entitled “Statelessness and Belonging: Perspectives on Human Migration,” aims to make explicit the intellectual debt owed to Arendt by analyzing the problems facing undocumented migrants today through the lens of ideas she presents in The Origins of Totalitarianism. It begins by defining and describing three vulnerable populations: minorities, stateless, and undocumented. The symposium contribution then presents three central arguments from Arendt’s critique of human rights as applied to the minorities and the stateless. It next discusses the striking parallels with the situation of the undocumented today and also explores the differences between the three groups. The symposium piece concludes by drawing on those differences to suggest ways to better protect the undocumented from vulnerability in the absence of adequate protection under human rights law.
Keywords: undocumented migrants, human rights, immigration, vulnerability
JEL Classification: K33
Suggested Citation: Suggested Citation