The Moral Dilemma in the Rescue of Refugees

^{BY ERNST} TUGENDHAT

1 o rescue people in need is a so-called positive duty. When

we wish to clarify our moral intuitions, the distinction between negative and positive duties is of fundamental importance. Negative obligations toward others are obligations not to inflict

evil on them, for example, not to kill or to injure. They are called negative because they are obligations to abstain from doing something. Positive obligations are obligations to do good or to prevent or repair evil. To rescue a person from drowning or starving or to help him move if handicapped are examples of positive obligations. All positive obligations can be subsumed under the duty to help. There are obvious differences in the application of these two types of moral duties. When asked to whom we have the obligation not to harm, the obvious answer is: to everybody, and there can be no question of more or less. On the other hand, there can be no obligation to help everybody, since "ought implies can." The usual view is that we have a duty to help a stranger only in special cases and when the cost is not especially high. When a person goes beyond that the action is not a duty; correspondingly, we do not say that the other person has a right to our action. Philosophers speak of supererogatory acts. When someone dedicates his entire life to helping others, he is an object of moral admiration but not necessarily of emulation. This at least is the usual way of understanding morality. Morality is considered as a set of limiting norms which we may not infringe upon but within

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which we may live a life as we deem good for ourselves. The other possibility, when one merges his entire life in morality, could be called the life of a saint.' Turning to the duties which a state has toward its citizens, we meet a similar distinction. It may sound a bit awkward to speak of negative and positive human rights, but the idea is that negative rights of an individual are rights to non-interference; John Locke's classical rights (the right to "life, liberty, and property") were such negative rights. It is generally assumed, although it is not quite true, that the state can respect these rights by simply abstaining from certain actions. On the other hand, positive human rights are rights according to which the state has a duty to provide certain things, opportunities, and even goods; such positive rights are, for example, the right to work, the right to health care, and the right to subsistence. They can all be thought of as rights to be helped, in correspondence with the positive obligation to help in personal morality. This parallelism could lead one to suppose that positive rights are as marginal in the conception of human rights as positive duties are in personal morality. In fact, positive rights had been recognized by few authors before the Second World War. However, since the Universal Declaration of Human Rights of the United Nations of 1948, which contains a large number of rights of both kinds without assumption of priorities, authors writing about human rights have split into two camps: one asserts that only the classical civil rights are genuine, and the other asserts that positive rights are of equal weight.^

This is not the place to discuss the arguments for and against these views, but it may be helpful to point out what is the fundamental concept in each. In the classical view, the concept of freedom was central. In the new view, the fundamental concept is the dignity of man. This concept of "dignity," which in its modern use goes back to Kant, plays a key role in many of the international declarations of human rights as well as in the human rights catalogues of many recent constitutions, for

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example, the constitution of the Federal Republic of Germany of 1949. These two key concepts reflect the different conceptions that the two views have of the significance of human rights. In spite of its ubiquitous use, the word "dignity" is nowhere defined. Kant uses it equivalently with his concept of the absolute, that is, non-relative worth of human beings. Kant also uses the expression that human beings are "ends in themselves." A word which may help us to understand what we mean by dignity is "humiliation." When a person humiliates another, he tells him that he does not consider him an "end in itself" but a mere thing; he denies the other respect, thus denying him the attribute of dignity. To live under undigni- fied conditions means to live under conditions unfit for a human being. This is again not very clear, but we are probably unable to say what we mean by conditions that are unfit for human life except by enumeration. There exists a central notion, however, that would have to appear in this enumera- tion, and this is the possibility for a sense of self-value and self-respect. Admittedly, this brings us back full circle to the notion of dignity, since to have self-respect means to have a sense of one's dignity. Now, there are obvious material preconditions for being able to live a life of self-respect, and it is these that we consider conditions befitting a human life. In the case of an animal, we also can enumerate conditions needed to live a satisfactory life, for example, sufficient food, a certain amount of freedom, certain social conditions; but, for animals, these conditions do not appear to be conditions of self-respect. It seems to make little sense to speak of a sense of self-value and self-respect when speaking of animals, and, hence, there does not seem to be a very clear sense of what it would mean to humiliate an animal. In the case of humans, it makes clear sense to say that somebody not only harms another person but also humiliates him (or that he humiliates him without further harming him). When people speak of a deprivation of dignity in the case of animals, they simply mean a deprivation of the conditions of a

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satisfactory life. On the other hand, the two cases may be considered to be sufficiently similar so that we also can say that humans living in undignified conditions are living under conditions that are unfit for a minimally satisfactory human life. This short attempt to clarify what we mean by dignity can serve as a basis to explain what the more recent conception of human rights, based on the concept of human dignity, finds at fault with the classical view of human rights as we find it in Locke, for example. In Locke's view, a state of nature is postulated which is a state of "perfect freedom," the only deficiency being that people can harm each other. The sole purpose of government lies in the provision of a central power that prevents harm. The function of government is to protect those rights in which humans supposedly have been, although precariously, in the state of nature. Human rights, therefore, consist in the right, enforced by government, that people do not harm each other plus the right that the government itself does not infringe upon these rights. A legitimate government is a minimal government of self-restraint. This explains why in the classical conception of rights the fundamental value seemed to be that of freedom, although the right to life or, more generally, to bodily security is not a right of freedom.^ From the point of view of the new conception of human rights, an unrefiected prejudice of this view is the presupposi- tion that only those who in principle could exist in a state of nature, namely, those who can fend for themselves, make up society. Those members of society who in the state of nature could not fend for themselves even in principle are disre- garded; they lack either the opportunity to fend for themselves, as when they have no property, or the capacity, as with destitute children, the incapacitated, the ill, or the old who are on their own. The classical view of human rights could do without the concept of human dignity because it restricted itself to those members of society who could be thought of as in principle living in a state of nature, and this means whose

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dignity, whose satisfactory conditions for conducting a human life could be taken care of by themselves. This is the reason why a term like "dignity" did not even have to appear. Both views are based on a morality and, ultimately, even on the same morality, the only difference being that the classical view restricts itself to negative duties while the new view equally stresses the positive duties. Now, it might seem that a virtue of the classical view of human rights is that it

corresponds to the priority that we attribute to negative duties in personal morality. However, the problem of human rights is

not just a reflex of personal morality. As soon as we turn to

problem of human rights, two things change. First, the emphasis is now not on the subjects who have moral duties but rather on their objects. This is the reason why some philosophers have recently spoken of a right-based in contrast to a duty-based morality.^ In my opinion, this can not mean that the concept of duty is being defined in terms of the concept of right; we have no way of defining the concept of the right of a person except by means of the duties which this right implies for others. However, the point of a right-based morality is that it is the needs of the recipients of obligations that determines the contents of the duties as well as the addressee of the recipients' claims.^ Further, the recipient is not only the object of the duties, but he is entitled to the actions or the omissions in question.

The second difference is that the claim that a human right be respected is not directed merely to everybody—to all individuals singularly—but to the collectivity. It is not a special virtue but a necessary deficiency of individual morality that it cannot deal adequately with positive duties. But it seems, at least at this stage, that we can deal adequately with them if we join hands. In some matters, this is widely recognized today even by those who still wish to restrict their conception of human rights to civil rights. A right that belongs to the classical catalogue of civil rights is the right to physical integrity. This has led to a certain consensus that in the case of a natural

the

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catastrophe, such as an earthquake or a flood, the government has a duty to rescue. Any one individual is quite helpless in such cases, but collectively we are called upon, and the government is the representative of the collectivity. Now, if this is the case with natural catastrophes, it is difficult to see why the community is not called upon in a like manner to help its destitute members, those who cannot help themselves for economic reasons or for reasons of age or health. This in fact can lead to a quite different raison d'etre of government than the one that was given by the tradition which started from a hypothetical state of nature. The reason we need a government is not that it defends the lucky members of society against those who have no resources, but that it assumes those moral duties toward the community which are outside the reach of the individuals. I said that both views have a moral basis, but the advantage of the more comprehensive view is that it better accords with the quite general view that a government must act in the general interest to be legitimate, and this can only mean in the interest of everybody and not just of one group. I do not wish to claim that this new conception is true and the other false, but simply that our moral outlook has changed. It has changed regardless of whether we argue for this view or the other. How are such historical changes to be explained? Probably there is most often a concurrence of two things: on the one hand, certain empirical facts are either new or for some reason we became more conscious of them; on the other hand, certain restrictions in the application of the moral outlook appear as arbitrary. Social and economic rights are often spoken of as the second generation of human rights. Recently, several things have been proposed as contributing to a third generation, particularly the rights of collectivities, although I doubt that this is very convincing. Human rights are by definition rights of individu- als, and the right to national autonomy is not the right of a supra-individual entity but is reducible to the rights of the

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individuals concerned. I do believe, however, that a new generation in our view of human rights has arisen gradually since the end of the Second World War as a result of the internationalization of human rights. Here again, what happens is that, first, certain empirical facts become much more prominent than they had been, and, second, certain aspects which previously had been taken for granted in the discussion of human rights no longer seem so self-evident. As for the empirical facts, in the first years after the end of World War II, it was assumed that the problem of refugees quickly would become marginal; instead, the number of political refugees worldwide has grown enormously and, in all probability, will increase further in the next years. What no longer seems self-evident today is that human rights are exclusively a national matter, and that sovereignty is something which excludes any interference whatsoever from the outside. I must first explain what I consider to be the main point of this internationalization of human rights. Some surface aspects are obvious, but the fundamental point seems to me to be that the concept of human rights itself changes when the addressee of the right-claim switches (even if only partly or as substitute) from the government of the country to the international community. A moment ago I pointed out that it is of the essence of human rights that they are addressed to the community, but the community has been thought of through- out the traditional theory of human rights as the national community, represented by the government. A government, with its judicial and executive powers, is an especially apt addressee of human rights claims, providing that when it functions normally, it has the means to enforce these claims. If there is no government, to talk of human rights seems to lose part of its sense. On the other hand, when we speak of the international community, it is, as long as we do not have a full-fiedged world government, no substitute for the regional government. When, for example, the international community is concerned with the violation of human rights in a country in

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which there no longer is a single functioning government, there is no institution that can replace the non-functioning regional government. Or if there is a functioning regional government, but it is incapable of dealing with the destitution caused, for example, by a fiood or a drought, or if it is unable to safeguard against the infractions which it commits itself, the international community may help rescue, but it is not a possible addressee of rights. If we choose to continue to speak of human rights, nevertheless, I would suggest that what we still call rights loses its traditional sense of two-term predi- cates—a relation between citizen and government—and ap- pears rather as one-place predicates, the simple enumeration of items that constitute human dignity. This explains why so often in contemporary discussions of human rights the concept of humanitarian concern comes up. Our horror at the deprivation of human rights can be directed at constitutional infractions by the corresponding government, but it can as well be directed at the simple fact that the people concerned are without help and protection. This erosion of one connotation of the concept of human rights is not necessarily only a bad thing. The reference to human rights, when they are viewed from a perspective of primarily international concern, loses all or part of its enforceability; however, they gain in universal concern. Nonetheless, whether it is a good or a bad thing, it is a reality of what has happened to the understanding of human rights today. The concept of human rights seems especially adequate to underline the absolute validity of these claims, and this was certainly appropriate for the first generation of human rights. The extension of human rights talk to positive rights runs into trouble with the question of their institutionalization (in the lists of these positive rights, whether in international conven- tions or national constitutions, they are spoken of as recommendations or intentions, not as things guaranteed); and in the case in which the international community is the addressee of rights, whether positive or negative, we do not

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even have an institution to which rights claims can be addressed. What I want to suggest is that human rights, which have arisen from morahty and consist in a special application of moral duties to governments which, among other things, had the great advantage of being able to deal, at least theoretically, with positive duties, undergo at present a change in their very meaning on account of the further extension of the addressee of these rights. When they are seen as the objects of merely humanitarian concern, they revert to individual morality and, in so doing, may well overtax the moral capacity of humans. The idea of rescue turns out to be, as soon as it becomes an international affair, primarily based on a supererogatory moral attitude as it had been in personal morality, and this becomes increasingly so as the amount of infractions of human rights and of refugees surpasses our imagination and stands in danger of being considered a normality. Those who try to protect internal and external refugees from the worst calamities, for example, the admirable team of the United Nations High Commissioner on Refugees (UNHCR) and many members of non-governmental organizations, form the tiny group of saints in the strictly terminological sense in which I used the word at the beginning of this essay, with full personal dedication to the humanitarian cause and assisted by collec- tions in aid given by some governments and many individuals to appease their conscience, but the UNHCR cannot be and does not want to be the addressee of the harassed human rights. The problem can be exemplified by the one human right, if it is one, which is both national and international in its very content: the right of asylum. What characterizes this right is that it is a right a government which would recognize it would grant to people who are not citizens and come from outside. The idea is that the right to general free immigration cannot be recognized, but it can or must be granted to people in extreme need, especially if they are being persecuted. Such a

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right, if it were recognized, would be recognized for purely moral reasons, as there are no pressure groups within the

country to push for it. The analogy in private morality might

be that I have a duty to let a person into my house when he is

being persecuted. Since I have to open the door, it is a positive right, and it would be so in particular if it were combined with

the idea that the refugee is to be received in dignity and furnished with conditions that enable him to begin a new life in dignity. This right would be further characterized by the fact—and this is what would make it so urgent—that the alien

is fleeing from conditions that are not only humiliating but

consist in infractions of his negative rights: he is not safe from being killed or tortured in his country.

Now, the truth of the matter is that not even the Assembly of

the United Nations has brought itself to accept this right into the Universal Declaration of 1948, although the preparatory committee had proposed that it do so. The only country which

I know that has accepted the right of asylum into its

constitution, although in a narrow interpretation, had been the

Federal Republic of Germany. The reason was. that many members of the constitutional assembly in 1949 had been forced to ask for asylum themselves in other countries when they were being persecuted by the Nazis, and they knew, of course, that many had been killed because they did not obtain

asylum. The Swiss case of the refusal of Jewish refugees right

at the border was especially glaring. The reasoning of the

German constitutional assembly was purely moral in the best

sense of the word: "What happened to us shall never happen again as far as we are concerned."

Meanwhile, last year this guarantee was restricted by a constitutional change in such a way that the handling of asylum was assimilated into the extremely narrow rules of the other countries of the European Community. Germany cannot

be blamed for this, since to implement a liberal right of asylum

would be the common task of all countries, especially the countries ofthe so-called first world. What appears to me more

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significant is that this right actually did not even exist as a reality before it was abrogated, once the number of petitions for asylum had become significant. The supposedly unique existence of the right of asylum in West Germany was in large

degree a formal fake, since the German courts saw to it that refugees were declared not to have been persecuted nor to have to fear persecution if they were returned in cases in which common sense would say they very obviously suffered persecution. The right to asylum thus became the object of an ugly and unfair judicial hairsplitting, and, in addition, the government adopted an explicit policy of deterrence, with the doubtful argument that this would diminish the so-called

abuse of the right to asylum and with the effect

refugees were held in camps in a state which did not correspond to human dignity (many were sent back to their country in defiance even of the Geneva Convention on Refugees which prohibits expulsion of refugees into their countries if they are liable to be persecuted). I myself campaigned in Germany in the mid-eighties for the right of asylum, but I now ask myself whether the reference to a right was the adequate moral rhetoric. I do not wish to say that we should not formulate our moral convictions in terms of the respect for rights, yet if a right is understood simply as a paragraph in the constitution that can be included as well as excluded by the will of a two-thirds majority, it does not present itself with the motivational moral weight that it could have. As long as the addressee of moral demands was clearly the government, to understand these guarantees as rights appeared as the most adequate formulation. But as soon as, on the one hand, the moral addressee is no longer a government and, on the other hand, as in the case of the right to asylum, the right given to aliens depends in the last resort on the attitude of the citizens, only their humanitarian attitude can be the appropriate court of appeal. We can promote the needed humanitarian attitude only by educating ourselves and asking ourselves what kind of people we want to be, and here, of

that the

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course, the question of rights comes up again, but in a purely moral sense: do we wish that it be part of our self- understanding that we respect all people equally, and that this respect implies that every one of them have a right to a life in dignity? This, I think, is the direction in which our questions must go, but as things stand, no solution will be found readily. The moral situation of our contemporary world in relation to the problem of political refugees could be summarized in the following three propositions:

First, the main cause for the current increase in political refugees is a self-understanding of groups in particularistic terms which ultimately implies the denial of universal respect and of human rights altogether. Now this particularistic tide, found in the countries which produce refugees, is equally characteristic for large parts of the populations of the countries which could receive refugees. My second and third propositions point to the probable expectations even in the improbable case that ethnic thinking should be overcome. Thus, second, even if ethnic strife should recede, we must anticipate further wars and civil wars caused by the aggravation of economic and ecological conditions, that is to say, the amount of people which will be required to be rescued will in all probability increase even without ethnic strife and even if rescue be interpreted narrowly and restricted to refugees suffering from persecution. And, third, even supposing that the xenophobic tendencies in the better off countries that in principle could rescue refugees were overcome, that is to say, even supposing that we did understand ourselves morally, the rescue of aliens in great numbers in spite of economic problems which this creates presupposes a more than average humanitarian attitude, a self-understanding of the population which would not only be moral but would go beyond the confines of normal morality some way toward a supererogatory ideal. The outlook for a solution of the problem of refugees at

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present and in the foreseeable future appears, therefore, rather bleak. My first proposition says that the contemporary moral condition of humanity is not propitious to diminishing the problem in the first place. The third proposition says that even presupposing a universalistic moral self-understanding, morality itself would be strained beyond the normal limits to which we are used to today, since supererogatory action would be called for not as the exception but as the rule. The step from private morality to a political morality based on human rights seemed, in the second generation of human rights, a way to overcome the embarrassment which positive duties (of which the duty to rescue is the most important) pose in private morality, but in what I called the third generation of human rights, the duty to help extends to all of humanity and requires a new understanding of the morality of individuals, govern- ment, and their interplay. New ways will have to be found that are not only technical but concern our self-understanding.

Notes

' Among classical philosophers, it was Kant who stressed perhaps more than anyone else the priority of negative as opposed to positive duties. A contemporary representative of this strict differentiation is Bernard Gert.

^ Henry Shue, in his book Basic Rights, is an outstanding

representative of this new conception. For the contrary view, cf. Cranston (1967).

^Cf. Shue (1980).

^ Cf. Mackie (1984).

^ Cf. Tugendhat (1993), the 17th lecture.

Bibliography

Cranston, M., "Human Rights, Real and Supposed," in D.D. Raphael,

ed

Political Theory and

the Rights

of Man

Indiana University Press, 1967).

(Bloomington,

IN:

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Mackie, J.L.H., "Can there be a right-based moral theory?" in J.

Waldron, ed.,	Theories of Rights (Oxford:	Oxford	University
Press, 1984).

Shue, Henry, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy

(Princeton, NJ: Princeton University Press, 1980).

Tugendhat,

1993).

Ernst,

Vorlesungen ilber Ethik (Frankfurt:

Suhrkamp,