2
from misery, - with grave consequences and implications for the international norms
themselves of protection of the human being.
5.
Already in 1948, in a luminous essay, the historian Arnold Toynbee,
questioning the very bases of what is understood by civilization, - that is, quite
modest advances at the social and moral levels, - regretted that the command
achieved by man over the non-human nature unfortunately did not extend itself to
the spiritual level2. In fact, the need for roots is to the human spirit itself, as pointed
out with such a rare lucidity by Simone Weil in a book published in 1949: every
human colectivity has its roots in the past, which constitutes the only means of
preserving the spiritual legacy of those who have already departed, and the only
means whereby the dead can communicate with the living3.
6.
With the uprootedness, one loses, for example, the familiarity with the dayto-day life, the mother-tongue as a spontaneous form of the expression of the ideas
and sentiments, and the work which gives to each person the meaning of life and
sense of usefulness to the others, in the community wherein one lives4. One loses the
genuine means of communication with the outside world, as well as the possibility to
develop a project of life. It is, thus, a problem which concerns the whole human kind,
which encompasses the totality of human rights, and, above all, which has a spiritual
dimension which cannot be forgotten, with all more reason in the dehumanized world
of our days.
7.
The problem of uprootedness ought to be considered in a framework of action
oriented towards the erradication of social exclusion and extreme poverty, - if one
indeed wishes to reach its causes and not only to fight its symptoms. One ought to
develop responses to the new needs of protection, even if they are not literally
contemplated in the international instruments in force of protection of the human
being5. The problem can only be adequately confronted bearing in mind the
indivisibility of all human rights (civil, political, economic, social and cultural).
II.
Uprootedness and Human Rights: The State Responsibility.
8.
But there is another aspect which ought to be considered. Part of the
difficulties of protection, in the present context of uprootedness, lies in the gaps of
the existing norms of protection. No-one questions, for example, the existence of a
right to emigrate, as a corolary of the right to freedom of movement. But the States
have not yet accepted a right to immigrate and to remain wherever one happens to
be. Instead of population policies, the States, in their great majority, pursue rather
the police function of protecting their frontiers and controlling migratory fluxes,
sanctioning the so-called illegal migrants. Since, in the view of the States, there does
not exist a human right to immigrate and to remain wherever one is, the control of
2
.
A.J. Toynbee, Civilization on Trial, Oxford, University Press, 1948, pp. 262 and 64.
3
.
The point is developed by the author, one of the great thinkers of the XXth century, who died
prematurely, in her posthumous book L'Enracinement (of 1949, subsequently edited in English under the
title The Need for Roots, 1952).
4
.
Such as perspicaciously pointed out by another great thinker of our times, Hannah Arendt (in La
Tradition cachée, 1987).
5
.
It may be observed that the principle of non-refoulement, a cornerstone of the protection of
refugees (as a principle of customary law and even of jus cogens), may be invoked even in distinct
contexts, such as that of the collective expulsion of illegal migrants or of other groups. Such principle has
been acknowledged also by human rights treaties, as illustrated by Article 22(8) of the American
Convention on Human Rights.