Refugees and responsibilities of justice (original) (raw)
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This paper was written while I was a Marie Curie Fellow at the Migration Research Center Mirekoc and the Department of International Relations at Koc University, Istanbul, Turkey. I am grateful to the Director of the Center, Ahmed Icduygu, and the colleagues from the Center for their support. The research leading to these results has received funding from the European Union's Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 316796 The recent Syrian refugee crisis opened a debate on the under-theorized issue of migration law regarding the status and the rights of refugees and asylum seekers. According to UNHCR estimates, Turkey has, since the conflict in Syria begun, accommodated within its jurisdictional boundaries the most conspicuous number of refugees (around two million), but none of them have been recognized legally as refugees. Turkey, one of the signatory states of the 1951 Geneva Convention, still applies “geographical limitations”; that is, it does not grant refugee status to non-European to- be refugees, but rather extends to the latter a status of ‘temporary protection’. The paradox is that Turkey grants legal refugee status to European applicants (consider the very trivial number of applicants in need of refuge from Europe after 1951), whereas millions of non-European ‘proper’ refugees, including those currently in the country will not be granted refugee status. What can we learn philosophically from this law and practice? Most philosophers concur with granting refugees a fundamental human right, in line with the Kantian hospitality principle, to sojourn in other territories temporarily and also more permanently, including a lifetime. The principle is incorporated in the Geneva Convention on the Status of Refugees, as the principle of “non-refoulement” (United Nations, 1951), obliging signatory states not to forcibly return refugees and asylum seekers to their countries of origin, if doing so would endanger their lives. Furthermore, asylum seekers’ and refugees’ claims to admission and more broadly to human rights protection are legally incorporated in the international human rights regime, and subsequently accepted by states (Benhabib, 2004). The fundamental human right to admission regards the admission of the asylee and refugee, and not that of immigrants whose admission remains “a privilege”, in the sense that it is up to the sovereign to grant such a “contract of beneficence” (Benhabib 2004). David Miller argues that when it comes to protecting human rights, states’ actions should reflect primarily the ‘terms’ of states, as they see fit: “your human right to food could at most impose on me an obligation to provide adequate food in the form that is most convenient to me (i.e. it costs me the least labour to produce), not an obligation to provide food in the form that you happen to prefer”; furthermore, states do not have a duty to automatically admit refugees, if for example, other similarly well off states can admit them, and the principle of non-refoulement is fulfilled (Miller, 2013). Miller rules out the theoretical possibility of human rights violations, in claiming that a state can deny entry to refugees, only if they are not returned to the country of origin and third countries where their human rights will be violated, and provided that some other state would take charge of them. Miller’s state-centrist view, assuming the point of view of states primarily, and second, wrongly assuming that the only theoretically salient feature is when refugees do not receive admission, as a result of which their human rights are violated, has pernicious implications. As an alternative, I argue that human rights are possible primarily when we view their defence as a primary moral concern, rather than instrumental and contingent upon what states see fit. I propose instead a philosophical view that genuinely assumes and acts upon the needs of refugees primarily, in both being admitted and rejected to sojourn in new territories. Very little effort has so far been expended by migration theorists to explain the character of a just distribution of refugees between states. Most studies instead have offered ample explanations regarding why refugees and migrants move to some states rather than others (Gibney, 2009). Since an adequate baseline from which to judge the justice of the distribution of refugees between states is still lacking, any new patterns of movement we might advocate creates possibilities for new unjust distribution patterns, a normative scrutiny that takes into consideration justice to refugees (besides justice between states) is of paramount importance. In this paper I analyse few of the main proposals of refugee distribution among states from a perspective of justice and argue in favour of the burden-sharing model that prioritizes justice to refugees. Specifically, I briefly analyse the “Syrian refugee crises” and I conceptualize it as an “engineered regionalism”, according to which the most conspicuous number of refugees end up seeking refuge in the region of their origin. In the second section, I explain why engineered regionalism is problematic from a justice perspective, and therefore explore alternatives we commonly think of in the literature as burden-sharing options. In the third section I argue that the respective alternatives are also morally unsatisfactory. They are all based on the presupposition that a right to free movement is what will entitle the refugee to (re)- settle to the country of one’s choosing, whereas this right is grounded on a philosophically informed principle of non-refoulement (as the ‘fire’ illustration proves). I attempt in the last section to propose a new model that is informed by the latter principle.
The international politics of refugee protection
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This article shows that the refugee burdens among Western states are also very unequally distributed and that this constitutes a problem not only for individual states, but also for the EU as whole. It argues that despite many obstacles, the development of regional or international burdensharing regimes is indeed desirable. Attempts to explain or justify steps towards such a system do not have to rely solely on notions of solidarity but can be justified by more traditional interest-based motivations. However, it suggests that the EU’s main burden-sharing initiatives which rely largely on policy harmonisation will not achieve the Union’s objectives in this area. It will be argued that market-based burden-sharing mechanisms need to be explored further and that such market driven policies when combined with policy harmonisation and quota-based initiatives are likely to contribute to a more equitable, efficient and effective refugee burden-sharing system. Paper prepared for the conferen...
Völkerrechtsblog, 2019
In December 2018, the Global Compact on Refugees was adopted. Especially over the last year, its drafting and negotiations could appear in odd contrast to the surrounding world, in which conditions for seeking asylum continued to harshen. Is the compact a step towards countering these conditions, or mere window-dressing without much effect on refugees' rights? The compact is non-binding and one widely shared view is that all will depend on how states build on it (see analyses here and here). Yet something has happened already. Over the course of the last two
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Refugees are often considered as a source of disorder if not fundamental threat to international society. In contrast, and drawing from an English School approach, this article argues that the figure of the refugee is foundational to the constitution of both modern international society and its agent, the sovereign territorial state; hence refugee protection represents a primary institution of international society. Starting with conceptual and methodological considerations for studying primary institutions, the article then highlights the longstanding and widespread state practice of granting asylum. It is shown that on the one hand, the figure of the refugee serves to consolidate and naturalise the nation/state/territory trinity underpinning the modern state system; and on the other hand, protecting refugees plays a central role in the construction of statist self-identities as liberal, humanitarian, and altruistic agents. The last section of the article turns to the politics of c...
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When states cooperate in refugee protection and implement a scheme with fixed rules allocating refugees to host states, should they consider refugees' interests and preferences regarding where they receive protection? This paper briefly examines the kinds of preferences and interests that are relevant to both refugees and states before discussing the moral principles determining the respective weight that should be attributed to them. We conclude that states must adhere to some minimal constraints concerning the consideration of refugees' concerns, and should promote some further moral goals that go beyond these constraints. Finally, we suggest a scheme that meets all the moral demands we argued for and seems feasible without posing serious threats to the destination states.
REFUGEES: STATE RESPONSIBILITY, THE COUNTRY OF ORIGIN AND HUMAN RIGHTS
The concept of State responsibility is as old as the human civilization. It has been the perennial responsibility of the State to protect the life and liberty of its citizenry. Today an individual has become central to the entire human rights discourse and is being regarded as a subject of International Law. Moreover, national boundaries are losing their meaning. Consequently a new world human order is being emplaced. The human rights of all individuals including that of refugees have become a polemical debate heralding a new premise whereat state concerns and individual rights are at loggerhead with each other. In this conspectus, it is incumbent upon the state to reconcile this paradox in an age of transnationalisation of human rights and civil liberties. Asylum countries are not as much responsible as country of origin. Thus, country of origin should squarely be held responsible for the refugees' flows and it is the responsibility of the refugee generating state not to create problems of galling proportions for the other states as it is contrary to the notion of a civilized state. The responsibility of the country of origin is higher than the responsibility of state of reception under the International Law.