A Most Inglorious Right: René Cassin, Freedom of Movement, Jews and Palestinians
The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (James Loeffler & Moria Paz eds., 2016 Forthcoming)
30 Pages Posted: 14 Dec 2015 Last revised: 19 Feb 2016
Date Written: December 7, 2015
This paper is concerned with a particular type of myopia – myopia about what I call the problem of exit rights without entry rights: when it comes to rights that involve cross border mobility, human rights law only guarantees a universal right to exit a state. The right to enter a new state is limited. But the ability to exit is a very narrow right if there is no place to enter. For most people, it adds nothing at all.
Curiously, this myopia has a history. It can be traced directly back to the French-Jewish jurist René Cassin, the “Father of the Declaration of Human Rights.” In the genealogy of human rights, Cassin plays an important role: he was one of the drafters of both the Universal Declaration of Human Rights (“UDHR”) and the European Convention of Human Rights (“ECHR”). In addition, Cassin also contributed to the creation of the United Nations Educational, Scientific and Cultural Organization (“UNESCO”), was a member (1959-1965) and president (1965-1968) of the European Court of Human Rights (“ECtHR”), and the Vice Chairman and Chairman of the Commission on Human Rights of the United Nations.
Here I will recount two separate stories: that of the problem of exit rights without entry rights, and that of Cassin. Both focus on the right to freedom of movement, because it is the human right that most explicitly involves cross border mobility. Put side-by-side, the two stories will make concrete the impenetrability of the problem of exit rights without entry rights.
First, a functional interpretation of the right to freedom of movement. In practice, this right bundles together two separate functions, namely, an exit function and an entry function. In other words, to cross a border, an individual must be able both to leave a state and also to settle in another state. For the right to movement to be meaningful, both functions must be in effect. Under human rights law, however, while the exit function may be universal, entry is limited. The result is that cross border movement depends crucially on the entry barrier. But, with the exception of nationals, the legal system makes the grant of entry largely optional for states. This leaves without human rights protection those individuals who are stranded between states – whose state of nationality either is the source of their harm (positive violation) or is unable to remedy their harm (negative violation). They can exit their state, but no state has a corresponding duty to allow them in. Alas, exit alone comes up against a functional block to mobility: there is no place to stop moving.
The second story describes how René Cassin dodged the problem of exit rights without entry rights. This story is perplexing. René Cassin is, after all, the man whose name is most synonymous with universality: “I have always,” he insisted, “acted on the level of humanity.” His focus on universality was well recognized. In 1968, Cassin won the Nobel Prize for being “the brains and the driving force behind the UN commission that drew up the Universal Declaration of Human Rights of 1948.” Moreover, there was a point when Cassin was acutely aware that to vindicate mobility in a meaningful way requires providing for the entry function: “it is impossible,” he explained, “to recognize a right…if no one was bound to respect it.” And, at the same time, this puzzle is also symptomatic. For the way in which Cassin learned to overlook the problem of exit rights without entry rights foreshadows today’s myopia.
In 1972, Cassin applied the freedom of movement right to both Palestinian and Jewish refugees, and especially to Jews seeking to flee the USSR. For him, this right to movement was foundational, indeed the “indestructible core of all human rights.” But he revitalized the entry function from outside the law. Human rights law guaranteed both Jews and Palestinians only a universal exit right. Israel supplemented the exit of the Jews, but not that of Palestinian refugees, with an entry. And so, the divergent outcome of the same right derived out of the moment of decolonialism: the right of the Jews, not of Palestinians, was grounded in the moment of legal sovereignty. In other words, what Cassin called a human right for the freedom of movement was nothing more than an Israeli national-domestic prescription. It never extended beyond the Jews. For anyone else, his “core of all human rights” was, in fact, only half a right. And half a right is a parody of a right.
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