27-09-2016, 04:11 PM
Refugees, Fairnessand Taking up the Slack
On Justice and the International Refugee Regime
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How should responsibilities for refugees be distributed?According to the UNHCR, at the end of 2014 there were 19.5 million refugees among a total of 59.5 million forcibly displaced persons worldwide. Developing countries hosted 86% of this refugee population (up from 70% ten years previously.) Lebanon (26%) and Jordan (9.8%) have the highest per capita ratios of refugees worldwide. Is this a fair distribution of responsibilities? This question is not merely one of interest to political philosophers. Considerations of fairness have been much to the fore in the political rhetoric of debates concerning current flows of Syrian refugees into the European Union (althoughto put this into perspective, from the beginning of the crisis up to the end of 2015, the total number of asylum applications from Syrians in the European Union reached 681,713, while in the same period the number of Syrian refugees in Turkey amounted to 2.18 million ). But at least one of the difficulties in this debate is that there is no agreement among states, globally or within the EU, concerning what would count as criteria of a fair distribution of responsibility for refugees.
The current EU crisis also illustrates a further question that is urgent in the contemporary context: what are the limits on state’s obligations to refugees? Is it, for example, sufficient to have done one’s fair share or, in the absence of established criteria, to have done what a good faith effort to work out one’s fair share required? Or do states that have done their fair share have an obligation to
take up the slack consequent on others failing to do their fair share? If so, what limits are there on this slack-assuming obligation?
The central topic addressed in this essay is the relationship of duties of justice towards refugees and the distribution of responsibility for the protection of refugees (with particular focus on the questions of whether doing one’s fair share of refugee protection entails that one has done all that is required to discharge one’s duty of justice towards refugees). I address this topic in relation to the institutional context of the current international refugee regime. In the first part of the essay, I lay out the normatively salient features of the current refugee regime and the relationship between duties of justice to refugees and the fair distribution of refugee protection that it institutes. In the course of this discussion, I draw particular attention to the fact that it is an important feature of the current refugee regime that it does not limit the duty to protect refugees to doing one’s fair share of refugee protection. The second part of the essay considers whether this feature of the refugee regime is justifiable by addressing arguments concerning whether duties of justice are limited to doing one’s fair share of refugee protection. In particular, this section addresses the argument proposed by David Miller (2009, 2013, 2016) that there is no duty of justice to take up the slack that is produced by the non-compliance of other actors. It argues that Miller’s argument is invalid and that duties of justice towards refugees may require doing more than one’s fair share, but also that there is an obligation to seek the fairest arrangements compatible with effective refugee protection. In the final section, I consider the significance and difficulties of the issue of a fair distribution of refugee protection for the contemporary refugee regime.
I
In a just global order composed of autonomous states, each state would have both the capacity and disposition to secure the human rights of its citizens (and states would reciprocally protect the human rights of one another’s citizens where these individuals reside within a state that is not their own). This is not the world we inhabit.Some states lack the capacity to offer secure protection of the human rights of their citizens. Some states lack the disposition to do so. Some lack both the capacity and the disposition. We thus confront a condition of partial compliance with the duty of justice that states have to secure the human rights of their citizens.
Where a statedisposed to secure its citizens’ human rightslacks the capacity to discharge this duty of justice, the international order of states has a duty of justice to support this state in building its capacity for securing the human rights of its citizens. Insofar as the international order of states in cooperation with the capacity-lacking state cannot secure the human rights of all of its citizens in situ, this may give rise to duties on other states to provide rights of (presumptively temporary) refuge until an adequate capacity for protecting human rights in the home state has been built. (This is particularly important in contexts in which domestic or transnational non-state actors exploit the state’s lack of capacity to threaten the human rights of some citizens/habitual residents or groups thereof.)These specific duties – to build capacity and, where needed, to provide refuge –are grounded in the general obligation of the international order of states (as a global structure of rule) to secure the human rights of all human beings (as those subject to its rule) in ways compatible with the structuring norms of this international order. The latter point is significant. Thus, for example, except under conditions of necessity, state A cannot develop the capacity of state B to secure the human rights of its citizens by forcibly annexing state B against the will of its people even if this is the most efficient way of securing their human rights because to do so would be to breach the autonomy of state B (where this is a structuringnorm of the order of rule grounded in the right to self-determination of peoples).
Where a state is not disposed to secure the human rights of its citizens, the international order of states similarly has a duty of justice to act to guide the conduct of this state towards protecting the human rights of its citizens (and, if this state also lacks capacity, to help support the building of its capacity when the capacities in question cannot be used for human rights abuse or when the re-direction of its conduct provides grounds of confidence for the belief that these capacities will not be used in ways incompatible with the protection of human rights.) While the dispositional problem persists, the international order of states has a duty of justice towards those whose human rights are unprotected. In the case of those unable or who have good reasons to be unwilling to flee the state, this duty requires – as far as compatible with the basic norms of the international order of states – the provision of protection (for example, so-called ‘safe havens’) within the abusing state. In the case of those able and willing to flee the state,the duty requires granting them the right ofasylum in other states where (we have well-founded confidence that) their human rights will be protected. Linking these two duties is a third that has particular salience in the context of the fact that, given the basic norms of the international order of states, the legitimate ability of the international order of states to protect those who are unable or unwilling to flee an abusing state may be extremely limited. This is the duty to offer proportionate support, as far as compatible with the basic norms of the international order of states, toenhance the ability to leave of those who are otherwise unable to leave the state and, where possible, to address the reasons that may make others, who otherwise have good reason to flee, unwilling to do so (for example, the reasonable fear that they will lose assets of material and/or symbolic value such as the land that has been in, and partly defined, the family for generations). This set of specific duties are, like those concerning capacity-building, grounded in the general obligation on the international order of states to protect the human rights of all human beings.
It is against this general normative background that we can approach the current international refugee regime as the legal institution through which protection of those who are willing and able to flee state contexts in which at least some of their human rights are unprotected. The current definition of the refugee is provided by international refugee law which, strictly speaking, consists of “international and regional conven- tions, General Assembly resolutions and resolutions of various ad hoc groups with regional competence (e.g. the EEC Ad Hoc Group on Immigration), customary law and domestic legislation.” However, the primary instruments of contemporary international refugee law are the 1951 Geneva Convention Relating to the Status of Refugees (hereafter “the 1951 Convention”) and the 1967 New York Protocol to the Convention Relating to the Status of Refugees (hereafter “the 1967 Protocol”) and, taken together, these instruments provide the basic definition of the refugee as one who:
One who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality [as belonging to a ‘people’], membership of a social group or political opinion is outside the country of his nationality [as membership of a state] and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his habitual residence ... is unable, or, owing to such fear, is unwilling to return to it. (1951 Convention Article 1 A (2) & 1967 Protocol Article 1 (2))
This specification of the criteria of refugehood has been much discussed (Shacknove, 1985; Gibney, 2004; Price, 2009; Lister, 2013; Owen, 2016; Miller, 2016) and there are regional instruments that adopt more expansive criteria – for example, in Africa, the Organization of African Unity’s 1969 Convention governing
the specific aspects of refugee problems in Africaand, In Latin America, the 1984 Cartagena Declaration on Refugees. For the purposes of my current argument, however, I will bracket these debates on the issue of criteria of refugeehood in order to focus on the question of the duties of justice to refugees conceivedas persons characterized by unprotected human rights, who have good reason to leave their state of nationality (or habitual residence) in order to secure protection of their human rights,and who apply for protection of their human rights having reached the territory of another state.
More immediately salient for my current concerns is another feature of the current regime, namely, that it is structured in terms of the grundnorm of non-refoulement. The duty of non-refoulement is a binding obligation on any state to which a claim to asylum is made not to return persons who, on the basis of an impartial process of adjudication, are found to satisfy the criteria of refugeehoodto the state from which they have fled or to another state in which they would lack protection of their human rights. More formally, the duty of non-refoulement:
encompasses any measure attributable to the State which could have the effect of returning an asylum seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she is at risk of persecution, including interception, rejection at the frontier, or indirect refoulement.
An important implication of this principle is that the current regime places no restrictions on the numbers of refugees to whom a state owes a duty of non-refoulement. This does not entail that refugees have a right to asylum in the state to which they make application (a possibility advocated, discussed and rejected in the drafting of both Article 14 of the UNDHR and the 1950 Convention on Refugees). On the contrary, as long as the duty of non-refoulement is not breached, states can come to bilateral, multilateral or omnilateral arrangements with one another concerning the distributions of the presence of refugees and responsibilities for the costs of refugee protection.