“Philosophy is the true mother of all sciences.”

-Marcus Tullius Cicero (Clayton, n.d.)

Philosophy is well recognized as the primary source of knowledge of all branches as we know it today. Legal doctrines are no exception to that. Furthermore, the presence of a particular legal system or legal regime or the absence of it is often determined by the prevalent political atmosphere of the concerned society. Political theory thus also appears as an important tool to forecast, analyze, and determine, in which direction the legal as well as the rights regime of a particular society, nation-state, or regional and global order shall go. In determining whether a nexus between ‘statelessness and ‘the right to have rights exist or not, a qualitative examination of texts of philosophy and political theory thus can be proved fruitful.

‘Statelessness: A Brief Definition

The question of what is ‘statelessness, is primarily neither of philosophy nor political theory. The answer is to be discerned from legal text and legal theory. According to Article -01 of the 1954 Convention Relating to the Status of Stateless Persons, a stateless person is someone who is “a person who is not considered as a national by any State under the operation of its law” (Convention Relating to the Status of Stateless Persons, 1954). In simple terms, ‘statelessness can be defined as a situation, where a person does not possess the nationality or citizenship of any nation or state of the world. Some people are born in such situations, whereas others become victims of such situations due to actions or inaction that occurred subsequently. There can be many causes behind ‘statelessness. Some prominent ones are gaps in nationality laws, birth in a foreign country, creation of new countries with changes in borders, and last but not least, statelessness created by deliberate loss or deprivation of nationality by the states. Through legislative changes, states frequently deny their citizens their nationality. In many cases, that process renders entire people stateless. States frequently deprive entire communities of their citizenship status based on discriminatory criteria like race or ethnicity (UNHCR, n.d.).

Origin of the Term- ‘right to have rights

This term, ‘right to have rights has three components i.e. right, to have, rights. Through a linguistic analysis, it can be discerned that this term implies that, there must be a supreme right, by merit of which one can avail all other rights (DeGooyer et al., 2018). This term is often used traditionally in the concept that, in order to have protection of other rights by the concerned state, one must have the right to nationality of the said nation. However, the contemporary view concerning the matter is not as straightforward (DeGooyer et al., 2018). The former Chief Justice of the United States Supreme Court, Earl Warren, until the 1990s, was considered to be the originator of the term, ‘right to have rights (DeGooyer et al., 2018). In two opinions written by him in 1958, he used the term. In Perez v Brownell, while discussing the US governments ability to strip the nationality of a citizen, he said, “Citizenship is mans basic right, for it is nothing less than the right to have rights.” (Perez v. Brownell, 1958). It was clear from the court records and lower court decisions of the concerned case that he had been influenced by the literature of Hannah Arendt, though there was a lack of academic citation in the opinions written by him (DeGooyer et al., 2018).

Hannah Arendt could not be recognized as the originator of the phrase, until long later; partly because, she once after coining the term, did not give it enough importance in her future writings. She also termed some other popular phrases, such as ‘banality of evil. Under her other works, the term ‘right to have rights was buried and became a foundling (DeGooyer et al., 2018). Though, the later philosophers and political theorists gave the term much importance; sometimes with proper citations, and sometimes not (DeGooyer et al., 2018). Hannah Arendt [1906-1975] was a political theorist of German Jewish origin who later in her life settled in the USA. She first used the term- “a right to have rights” in an article titled “‘The Rights of Man: What Are They?” In its 1949 summer edition, the American labor movement magazine Modern Review, which did not last long, published it (DeGooyer et al., 2018). In the ninth chapter of the second part of her book, "The Origins of Totalitarianism," titled "The Decline of the Nation-State and the End of the Rights of Man," she reused a significant portion of this piece, including the section where the phrase "right to have rights" appears (Arendt, 1962; Rahman A., and Islam MT., 2022). 

In the ninth chapter of the book, Arendt focused on the plight of millions of people who found themselves to be stateless and devoid of rights otherwise deemed inalienable, especially of various new European nations that came into being as an aftermath of the First World War. Hannah Arendt, herself was a victim of the said situation. She, as a Jewish person, who had previously been a national of Germany, was relegated to a stateless status, when after the Nazi party under the leadership of Adolf Hitler came into power, and the Nuremberg Laws of 1935 were enacted (DeGooyer et al., 2018). Thus her writings in this matter were not solely based on pure political theory, but those relied heavily on her personal experiences as well. She, after evaluating the situations of then Europe, came to determine that, even though documents like the US Declaration of Independence, the French Bill of Rights, and even Second World War documents like the UDHR speak of a set of inalienable ‘rights of men, later to be known as human rights, which prioritized the sacredness of being human, the states often considered being only human to be nothing sacred to ensure such human rights (DeGooyer et al., 2018). Without membership of a particular polity, i.e. being the citizens or nationals of a particular state, people could not practically claim the protection of their human rights from those states. The fact that most of the defining documents of human rights termed human rights as the right solely for being human, irrespective of caste, creed, sex, gender, religion, and so on did not prove to be effective in such situations. Furthermore, states, often through a stroke of pen, made millions of people stateless and denied them even the most basic of all human rights. Such as, in the cases of German Jews, they were even denied the right to life (DeGooyer et al., 2018). 

As she examined those situations, Hannah Arendt understood that being only a mere human being was not enough to have access to human rights protection by the concerned state, acting with full sovereignty within its territory. She understood that, in order to have all the other human rights, one must first have a singular ‘right, by merit of which one can claim such other human rights. She found that such a singular right to have the protection of all other human rights by the concerned state largely originates through being the citizen or national of the said concerned state (DeGooyer et al., 2018). 

Resurfacing of the Term- ‘right to have rights in the 1990s Context

The term- ‘right to have rights was, at least slightly, buried under the plethora of other philosophical jargon of the 20th century for a substantial amount of time. Though people like French post-Marxist philosopher Claude Lefort used the term in the 1980s to describe characteristics of a welfare state, such ideas deviated largely from the original Arendtist ideas and were generally used as a reference to explain other disciplines (DeGooyer et al., 2018). In the 1990s, the world saw another surge in the genocidal tendencies among the nation-states within their territories. Such were the cases of Rwandan and Bosnian genocides. These instances of grave human rights violations within the territories of a nation-state let thinkers, philosophers, and political scientists think again about global human rights situations (Pieterse, 1997). In this new context of the 1990s, both philosophers and political theorists grew a newfound interest in the works of Hannah Arendt. Seyla Benhabib, a Turkish-American philosopher, wrote a book called ‘The Reluctant Modernism of Hannah Arendt in 1996. In this book, she tried to reinterpret the term- ‘right to have rights to serve the purpose of the new era and to facilitate the promotion and protection of human rights (Benhabib, 2003). 

Recent Philosophical Understanding Concerning the Merit of Citizenship and Protection of Human Rights

The contemporary philosophical understanding regarding the merit of citizenship and the protection of human rights is as diverse as ever. Some philosophers are in favor of easing access to citizenship. This comes under the umbrella of the philosophical theory of jus nexi or the stakeholder principle. Though the proponents of this theory recognize the importance of citizenship in protecting human rights, they are in favor of widening the scope of such citizenship. In place of, or supplement of traditional birthright principles of citizenship, they are more inclined to provide citizenship to individuals who have a “real and effective link” (Shachar, 2009) to the political community of such a state or, have a “permanent interest in membership” (Bauböck, 2008) of such a community.

Another school of philosophical thought in this matter promotes the use of the unbundling theory. They propose that, as human rights instruments over time are getting more and more credibility and importance, deterritorialization of rights regimes is now a possibility. And as such, a persons basic rights should be protected irrespective of such persons formal membership status in a given polity. They argue that peoples rights should be protected because of universal personhood, not because of membership in a particular polity. This means that, in this age of globalization, it requires the disaggregation of rights; meaning that the rights, which people generally associate with being the citizen of a country, should be available to all inside a country, irrespective of the nature of their citizenship or nationality status. This school also argues that this unbundling process has begun already, as many prominent democracies already protect basic rights, including the human rights of all people within their control, even if they are not citizens or nationals of such states (Song, 2009). Such a theory of unbundling of benefits and protection of rights is not free from its fair share of criticism. Some argue that such an initiative shall lead to a loss of internal redistribution and co-governance that a stable citizenship regime may provide. They also argue that such unbundling may even shift burdens from the state towards individual persons, and as such there might be a creation of a further scope for the state to avert the responsibility to protect peoples rights. By calling for the dissolution of the current bundle of benefits and protections associated with citizenship, proponents of the unbundling vision, according to Shachar, will also start to feed an alternative discourse that calls for the privatization and fragmentation of citizenship and implies a lesser sense of collective responsibility for members well-being (Shachar, 2009).  

Modern Perceptions and Criticisms of the Doctrine of ‘right to have rights

Hannah Arendts book ‘The Origins of Totalitarianism, had seen a massive increase in sales in the early 21st century when a wave of right-wing populist leaders swept the world (Harnett, 2017). Several books were written after 2000, concerning the term ‘right to have rights as well. Seyla Benhabib gives much credit to Hannah Arendt for coining the term. She in her book, ‘The Reluctant Modernism of Hannah Arendt, and several other articles, argues in favor of the concept of ‘the right to have rights (Benhabib, 2003). Though with a slight reinterpretation, she argues with the main theme of the concept. However, Benhabib contends that Arendt acted too quickly in concluding that an individuals rights can only be consistently guaranteed by citizenship in a nation-state. She contends that since the publishing of Origins, developments in international law and politics have produced a forum above the nation-state level where the rights of people who are not citizens of that nation-state can be expressed and enforced more effectively (Benhabib, 2004). She also opined that, in this day and age, having rights implies acknowledging that every human being, regardless of nationality, has the universal status of personhood (Benhabib, 2003). Jacques Rancière criticized Hannah Arendts ideas from a different angle. He deduced that the human in Arendts writing was not political enough to continue a social struggle integral to a political life. Schaap studied Rancières critique of Arendt meticulously in one of his journal articles. He opined that Rancière claims that Arendt depoliticizes human rights by associating the citizen with the good life (bios politikos) and the human with mere life (zoë). Because in doing so, she assumes that the distinction between zoë and the bios politikos is provided ontologically, when politics is usually about challenging the way that division is made. According to Rancière, "the human" in human rights does not mean a life devoid of political influence. Instead, the term "human" is a contentious one that politicizes the division between those who are and are not eligible to engage in political activity (Schaap, 2011). 

Some base their argument on their perceived notion that public international law has gained such prominence that the protection mechanism it provides for the victims or potential victims of the deprivation of citizenship thus making them stateless and in effect devoid of all the basic human rights directly or indirectly associated with it, reached the stage of jus cogens or peremptory norm, which makes it such a compelling form of customary international law that states cannot hide behind the veil of state sovereignty and abruptly denationalize a particular person or a group of persons (Tang, 2006).  However, all these arguments and theories still need some practical substantiation in real-world scenarios.

Practical Applicability of the Doctrine of ‘right to have rights in the Present World

The doctrine of ‘right to have rights is tremendously important in todays world in order to ensure that every person shall have access to the protection of human rights. The nexus between ‘statelessness and such ‘right to have rights, still cannot be denied fully. As, practically, states are still exercising full sovereignty, in determining who is a citizen or not. Such as the case of the Rohingya minority in Myanmar in recent times (Parashar & Alam, 2019). The states are still discriminating heavily against those non-citizens, though there is a presence of an international order in this regard. And as such, the practical importance of citizenship in the protection of human rights of a particular person or community in a nation-state cannot be denied yet. However, contemporary philosophers and political theorists are deviating from the idea of absolute state sovereignty. The arbitrary denationalization process is philosophically not being considered moral anymore by making it a matter exclusive to the sovereign power of a particular nation-state. Interdependence of sovereign nations is considered to be a core feature of todays international order (Franceschet, 2002). The contemporary philosophers and political theorists are also increasingly recognizing the importance of a stronger international law regime in order to protect a persons right to nationality and to ensure the protection of human rights based on universal personhood. They have determined that, though, Arendt had considered citizenship synonymous with ‘the right to have rights, in the present age of globalization and qualified state sovereignty, as a plethora of international human rights documents and bodies are in existence, a lack of mere citizenship should not make the concerned state eligible to violate and deny human rights of a person or a community within its jurisdiction (Benhabib, 2004). As it is already recognized through the study and understanding of the contemporary international law regime in these regards, that, as a subset of crimes against humanity, persecution is a crime that can be prosecuted at the International Criminal Court when a civilian population is severely deprived of rights that are established by international law because of their nationality or ethnicity (Quigley, 2023). 

The act of making people from a particular ethnicity devoid of citizenship can be considered as an active element and a precursor to the crime of persecution, and as such the said act in itself may be considered as a crime against humanity as well. Such recognition may help the situation by isolating and cornering the authorities of the perpetrator state into submission in the international arena. Particular permanent members of the Security Council of the United Nations may also opt to refrain from supporting and using veto power in support of such a state to avoid association with a regime accused of crimes against humanity. At last, if not anything, such recognition of crime against humanity may at least help to name and shame the authorities of the perpetrator states to a greater extent.

Denationalization and subsequent deprivation of other basic human rights which traditionally can be gained by virtue of citizenship in a particular nation state is not a very new concept. Several nations throughout history have denationalized particular groups of people; especially out of xenophobia. Philosophers, legal thinkers and political scientists from time to time tried to provide a framework to assess such situations and to suggest mechanisms to combat such horrendous situations of arbitrary deprivation of basic human rights. In recent times, they found particular interest in the developments of public international law and tied their hope in creation of a compelling mechanism where states are bound to honor peoples basic human right of nationality. As long lines of studies suggest, only black and white letters of literature and law cannot prove sufficient. Practical actions, goodwill of the nations and constant activism in this regard may keep the hope of salvation from such practices alive.

Majority of the study was done in this regard for the completion of my LLM. I am acknowledging the role of my alma mater and teachers who provided me with tremendous support during that time in the form of study materials and careful guidance.

The author would like to declare that there are no conflicts of interests in writing this paper.