By ASHWINI VASANTHAKUMAR
Review of What Do We Owe to Refugees?, by David Owen, and The Arc of Protection: Reforming the International Refugee Regime, by Alexander Aleinikoff and Leah Zamore
New York: Polity, 2020; Redwood City: Stanford University Press, 2019
1.
In the last decade alone, there have been mass displacements from and within Syria, Venezuela, Afghanistan, Ukraine, and South Sudan, prompted by the often-interrelated causes of poverty, conflict, and climate change. These displacements put the international system of refugee protection under fresh pressure. Not, as it is typically understood, from the vast numbers of those displaced—indeed, there is reason to question the narrative of unprecedented refugee flows. Rather, these displacements throw into question the very relevance of international refugee protection. On the one hand, there is the flagrant non-compliance of those states who were chief architects of the international refugee regime. As of this writing, states have engaged in unlawful “pushbacks,” sending back migrants on lifeboats before they can claim asylum, and have forged agreements with egregious rights-violators to contain and detain migrants. On the other hand, even if there was full compliance, it is far from clear that the existing regime could respond to the long-running crises of poverty, environmental disaster, and political instability that force millions to flee.
Two recent contributions make the case for this relevance. David Owen’s What Do We Owe to Refugees? and Alexander Aleinikoff and Leah Zamore’s The Arc of Protection: Reforming the International Refugee Regime take seriously the legal instruments of refugee protection and consider them in light of contemporary crises. Both volumes are deceptively slim: they manage to provide an introductory overview of international refugee protection, to engage with sophisticated normative and legal arguments, and to sketch out an onward trajectory. They are invaluable to those seeking a normatively oriented point of entry into the overwhelming literature on refugees, but also to normative theorists whose scholarship on migration too often is divorced from the legal norms and practices regulating migration.
Both books have broadly similar methodological approaches and aims: to normatively reconstruct the underlying logic of international refugee protection and extend this logic so that it may confront present and future challenges. They show how the existing architecture of refugee protection is broad and flexible, containing within itself the resources for restructure and expansion. As broadly revisionist projects, however, they also reveal the limits of any such revision. The existing refugee regime is ill-equipped, perhaps by design, to address an unequal world-order that compels millions to flee poverty, uncertainty, and the inability to plan minimally decent lives. While Owen and Aleinikoff and Zamore show the different ways the existing system of refugee protection can do more, however, they do not show that it can do enough. To be sure, “doing more” is nothing to sneeze at: in the current context, it will change the life-chances of millions. But doing more should not come at the expense of doing enough; it should become a means to doing what is required. Neither Owen nor Aleinikoff and Zamore would deny this, I don’t think. Their arguments are best understood as using existing institutional tools to address challenges that arise beyond that institution’s original remit—and perhaps to pave the way to more radically altered institutions and practices. Both extensions are limited by the constraints of political feasibility, which in turn calls for reflection on the political efforts needed to alter those constraints. For, as the reception of refugees from Ukraine reveals, political feasibility is changeable, and appreciating this can help ensure that doing more leads to doing enough.
2.
Both accounts have much in common but depart in significant ways, beginning with how they understand the fundamental normative structure of international refugee protection. Owen adopts a state legitimacy view under which refugee protection is key to restoring the legitimacy of a world order of sovereign states; Aleinikoff and Zamore regard refugee protection as concerned principally with mitigating the harms of displacement so that the displaced qua displaced can flourish. Ultimately, both accounts tie protection to the enjoyment of rights and resources, but Aleinikoff and Zamore do not tie this enjoyment to membership in a state, delinking, at least conceptually, individual rights, state membership, and the world order of sovereign states.
Refugeehood as a “legitimacy repair mechanism”
Owen identifies “two distinct pictures of refugees”: a political conception that focuses on persecution and the loss of political membership that it signifies, and a humanitarian conception that focuses on the neediness of those fleeing, irrespective of the causes of their flight. These conceptions not only identify who is entitled to protection as a refugee, but also indicate what such protection entails. Under the political conception, for example, protection involves restoring refugees’ political membership, be that through repatriation to the community they have fled, membership in their country of asylum, or resettlement to a third country—the elusive durable solutions to displacement. The humanitarian conception, on the other hand, may only call for meeting refugees’ basic needs, a requirement that ostensibly can be met without political membership. How divergent these two pictures turn out to be will depend, in turn, on what conceptions of persecution and basic needs one adopts. Those seeking to expand protection under the political picture can, for example, emphasize the political origins of a humanitarian crisis and the lack of effective political membership for those who are most vulnerable to its upheavals; or, under the humanitarian conception, urge that victims’ basic needs include, or are most reliably secured by, political membership.
The indeterminacy of which picture to adopt presents, Owen argues, political and philosophical dilemmas. Politically, this vagueness allows governments to shirk their responsibilities and inhibits international organizations, lawyers, and refugees from holding them to account. Philosophically, these two pictures complicate efforts to work out a theory of refugeehood. As Owen notes, the fact that these two incompatible pictures are so compelling suggests that simply choosing one is not really an option; whilst philosophically parsimonious, doing so would miss out on morally salient features of refugee protection. Instead, Owen proposes a normative reconstruction of the international refugee regime that attends to its animating principles at different historical and political contexts and to the legitimating function it plays in the existing world order. This normative reconstruction will illuminate the two competing pictures of refugeehood, allowing philosophers and policymakers to navigate, rather than ignore or deny, the tensions between them.
This reconstruction is swift and cogent, a nimble introduction to a complex historical and institutional field that helps to situate pressing contemporary debates in law, public policy, and philosophy. For this reconstruction alone, this book is an invaluable contribution to the literature on migration and refugees. In addition, this overview lays the ground for Owen’s broadly functional approach to theorizing refugeehood. Owen argues that the international regime of refugee protection should be understood against the global context in which it operates: a normative world order that seeks to reconcile an international order of sovereign states with a cosmopolitan order of individual human rights. This reconciliation relies on the promise that sovereign states will be the best guarantors of individual human rights; when a state fails to do so, the legitimacy of the international order is called into question. This requires “legitimacy repair mechanisms”: the international emergency assistance regime, when the international community supplements the inadequate protection provided by any given state for those who remain within its territory, and the international refugee protection regime, when the international community substitutes the inadequate protection provided by any given state for those who are outside its territory. The failure of one state to guarantee its citizens’ rights suspends some of the privileges of sovereignty. In the case of the emergency assistance regime, the inadequate state may lose its immunity to intervention, and in the case of refugee protection, substitute states may lose their discretion over whom to admit into their territory. The paired commitments to state sovereignty and individual human rights “is the point and purpose of such regimes” (47), and these regimes should therefore be designed and assessed in terms of how well they achieve this “imagined reconciliation” between state sovereignty and human rights (47).
The “legitimacy repair” view can make sense of key aspects of international refugee protection, such as the distinction between internally displaced persons and refugees (51), and the principle of non-refoulement (51-52). But Owen’s legitimacy view is also prescriptive. Under it, he identifies three distinct responses that are owed to the forcibly displaced: asylum, sanctuary, and refuge. Asylum is owed to those who are denied equal membership in a political community, for example through persecution, and provides surrogate membership in another political community, allowing the latter to express its condemnation of the distinctive wrong done by persecution. In short, asylum is owed to those who are refugees under the political picture.
Sanctuary is owed to those who are fleeing a generalized breakdown of public order and whose political membership is therefore inoperative (rather than wilfully denied). With sanctuary, these individuals are provided a space in which their basic needs—the “basic security, liberty, and welfare that the protective and enabling functions of citizenship would normally provide” (58-9)—are met; where they are protected from return; and where they eventually will be entitled to membership.
Finally, refuge is owed to those fleeing discrete catastrophes, such as famines and natural disasters, and who have crossed a border in order to avoid imminent harm. These individuals are entitled to shelter but can be repatriated once it is reasonable to do so; they have no claim to membership or to social integration, unless their refuge becomes lengthy; and their flight says nothing about the membership their home state provides them. In effect, refuge is a form of international emergency assistance for those who have crossed an international border.
When a state denies an individual’s equal membership and disdains its obligations to secure her rights and basic needs, it disrupts the putative compatibility of an international order of sovereign states with individual human rights; the onus then falls on other states, who benefit from this international order and the ‘imagined reconciliation’ it promises. These three responses reflect what is distinctively compelling about both the political and humanitarian pictures of refugeehood without denying one for the other or collapsing them together (64-5). And the three responses Owen identifies provide the appropriate substitute protection, communicate the appropriate condemnation and concern, and thereby re-establish the integrity of the existing world order.
From “refugeehood” to international protection
Aleinikoff and Zamore begin with the origins of the modern international system of refugee protection: ad hoc and mostly bilateral arrangements brokered by the League of Nations that disintegrated with the Second World War, which in turn prompted more concerted action. In 1950, the UN created the Office of the High Commissioner of Refugees and in 1951 finalized the Refugee Convention. The Convention provided for a robust set of rights for refugees. These rights would enable refugees to “rebuild their lives, provide for their families, and take up life again in peaceful human communities,” (11) and allowing refugees to rebuild their lives would reduce the cost refugees imposed on their host communities.
The vast majority of today’s refugees, however, are in “protracted refugee situations,” where at least 25,000 refugees from the same country have been in exile for a minimum of five years. In 2019, 16 million refugees—nearly 80% of all refugees—were in this indefinite state of limbo, excluded from the social, economic, and political systems of their countries of asylum, denied reliable rights and resources, and vulnerable to exploitation and abuse. This limbo is overseen by the UNHCR and refugees are reduced to “wards of the international humanitarian community” (47). Whatever the philosophical confusion between the political and humanitarian pictures of refugeehood, the humanitarian paradigm is firmly lodged in the actual practices and institutions of refugee protection.
The limbo of protracted displacement arises through the interaction of two features of international protection: the “modern standard account” of refugee protection that conflates refugees’ ability to rebuild their lives with political membership in a state that can protect them, and the absence of mechanisms of burden-sharing that would make such membership a reality. The “modern standard account,” according to Aleinikoff and Zamore, conceptualizes international refugee protection as a form of surrogacy (48-50). Developed in the 1990s, this conception understands refugees as those unable to enjoy the protection of their home state and who are thereby afforded surrogate protection by the international community. Echoing Owen’s understanding of international refugee protection as a “legitimacy repair mechanism,” the “modern standard account” treats refugee protection as an “obligation of the international community to remedy the failure of one of its members to live up to its duty to respect the rights of its citizens” (50).
But surrogate protection is typically understood as requiring integration and political membership in another state—durable solutions that, absent mechanisms of burden-sharing, remain elusive. At the drafting of the 1951 Refugee Convention, burden-sharing was discussed but not mandated (12). At the time, this sufficed. Aleinikoff and Zamore note that Western governments created programs to deal with refugee flows that to this day remain unprecedented. Before the creation of the UNHCR more than a million refugees had been re-settled by third countries, and by the time the 1951 Convention even came into force in 1954, the Marshall Plan had provided financial support to asylum states. As a result, the burdens of asylum were relatively light, and the absence of burden-sharing mechanisms were not felt so acutely.
Not so today. When most refugee flows stem from poorer countries in the global South and most countries of first asylum are also in the global South, then the swift integration of refugees into host countries is neither feasible nor obviously desirable. Absent robust mechanisms of burden sharing that both resettle refugees to third countries and funnel resources and other support to countries of first asylum, the Convention’s vision of swift integration is indefinitely delayed.
With a robust system of burden-sharing as yet out of reach, Aleinikoff and Zamore revisit the first feature: the “modern standard account,” which conflates refugees’ ability to rebuild their lives with political membership. They reject this conflation, urging instead that international protection be understood “as its own project”: “a collective responsibility of states to respond to situations of displacement.” (51) International refugee protection should mitigate the harms of displacement rather than simply mimic the rights refugees should enjoy back home—particularly in a context of protracted displacement where surrogate protection cannot be provided simply by granting political membership in another state. Aleinikoff & Zamore outline five elements of such a protection regime: safety, enjoyment of asylum, solutions, mobility and voice. Together, these five elements “recognise and seek to protect refugee agency and [] restore the hope and possibility of human flourishing” (56) whilst displaced, rather than treat human flourishing as possible only once displacement has ended.
The elements of safety, enjoyment of asylum, and solutions are familiar, and Aleinikoff and Zamore’s discussion is topical, covering, among other things, the need for safe routes to claim asylum, the right to work, development assistance to host countries, especially in the global South that improve living conditions for all, and de-linking those responses from political membership. Crucial to their focus on mitigating the harms of displacement and ensuring the enjoyment of asylum are two further elements: mobility and voice.
Mobility was once a feature of international protection. “Nansen passports” issued to refugees after the First World War acted as an identity card for those lacking any papers, thereby facilitating travel out of and return to the country in which they first found asylum. Such mobility was “generally understood as important to attaining self-reliance” and allowed refugees to move where there was work, family, or a welcoming community (81). This understanding has since been abandoned. Refugees must stay in their first country of asylum, typically neighbouring countries, or travel unlawfully to other countries in search of employment, loved ones, and the possibility to rebuild their lives. While these containment practices are today ubiquitous and unremarkable, they are of relatively recent provenance. Discussions about free movement are typically framed as a debate between an individual right to move across borders and a state’s right to exclude, which a large philosophical literature explores. Aleinikoff and Zamore instead cast mobility as a property of the international protection regime. Those who are displaced are entitled to mobility amongst member-states of this regime, irrespective of any general right to exclude these states might otherwise enjoy.
Aleinikoff and Zamore argue that such a system would save the displaced the agony of indefinite waiting periods in which their asylum claims are adjudicated freshly in each country they move through. In turn, this would save each member state the expensive processes of determination, detention, and deportation. In the interests of feasibility, they make concessions that may prove fatal to the value of mobility. They are right in pointing out, however, that the recognition of a right to mobility is itself a recognition of refugees’ agency and one, moreover, that treats refugees’ agency as a means to a better functioning international protection regime and not as a problem to be managed. This recognition stands in stark contrast to actual refugee resettlement programmes: under their scheme, “rather than states selecting refugees, refugees select states” (84).
This recognition of and commitment to refugee agency informs their fifth element: voice. Aleinikoff and Zamore observe that “at the level of deep structure, the prevailing regime of humanitarianism cares relatively little about refugee voices” (85). Indeed, given the paeans to “voice” and “agency” in the humanitarian and refugee sectors, it is “stunning” (85), although perhaps not surprising, that refugees have no formalised voice at the UNHCR, or indeed at other bodies and meetings where their fates are being decided. Aleinikoff and Zamore note that basic principles of legitimacy call for the voice of those subject to decisions and policies to be heeded in the making of those decisions and policies. This would be true, albeit controversial, in refugees’ countries of first asylum and settlement, where many refugees, and often their descendants, have lived without any formal political voice; more easily implemented would be refugee voice in the international protection regime itself—in the camps and cities where the UNHCR administers various programmes of relief, and in international meetings where compacts and principles are agreed to.
3.
Owen and Aleinikoff and Zamore’s accounts of international protection reveal the extent to which refugees’ lives can be improved within the existing architecture of international protection, as well as the innovations that can be made within that architecture. This is an important rebuttal to those critics who think the modern system of refugee protection is unable to face new challenges—with a view, we might fear, to replacing it with a far inferior regime. And both accounts reveal the nuance the existing regime can accommodate, suggesting ways to give institutional effect to the fine-grained normative distinctions political philosophers are keen to press.
The failure of international protection, however, does not strike me principally as a failure of ideas. Rather, it is a failure of good faith compliance and political will—mostly on the part of those states who have created and benefited from the world order that refugee protection ostensibly legitimates. What role, then, should political feasibility play in a normative reconstruction of refugee protection, in particular, the feasibility constraints of political will and state compliance? And how might we move from existing practices of international protection to realising the promise of international protection?
At times, taking into account political feasibility risks hollowing out a policy proposal. Aleinikoff and Zamore temper their bold call for mobility rights and a revival of the “Nansen passport”: “to be acceptable to member states, and to be consistent with fair distribution of responsibilities, states could limit admissions to a certain annual amount or could condition admission of some portion of refugees on demonstration that they have means of supporting themselves and their families (and other conditions relating to security and the like)” (83). Allowing states to set an annual quota could easily result in arbitrary limits, and allowing preferential treatment on the basis of means, security, or other conditions could easily result in the most well-resourced refugees moving to the most economically and culturally vibrant states.
Concern with political feasibility might also counsel against the nuance and fine-grained distinctions that are such a virtue of Owen’s account. Recall that indeterminacy between the political and humanitarian conceptions of refugeehood, Owen argues, partly accounts for non-compliance. This indeterminacy, however, would seem only to be enhanced by a tripartite scheme of refuge, sanctuary, and asylum that, moreover, allocates responsibility according to, among other things, state capacity and culpability—which states will be keen to minimize and deny.
Even though they differ on the utility of the “modern standard account,” Owen and Aleinikoff and Zamore agree on the central importance of an institutionalised and robust system of burden-sharing. As Owen notes, “there is no moral algorithm” for determining fair shares; instead, “developing a scheme of refugee protection that supports fair responsibility sharing requires building institutional and organisational infrastructures through which determinate fair shares of responsibility can be allocated to, and assumed by, states” (104). Such an institutionalised mechanism for determining shares would foreclose some of the dangers of indeterminacy canvassed above. In a similar vein, Aleinikoff and Zamore call for the creation of a Global Action Platform on Forced Displacement that can respond to particular displacement situations, marshalling states, development agencies, civil society actors, and the private sector, to allocate refugees from a particular crisis equitably, and to support host states so as to enable economic integration and reconstruction. The failure to create such systems, Owen notes, are partly structural: the background conditions that produce refugees continue to operate, with no robust system of burden-sharing in place to address their needs. And because refugee protection is akin to a global public good, in that all states benefit from its provision irrespective of their contribution, states can free-ride on the efforts of others whilst over-stating the costs, actual and imagined, of doing their part.
Confronted by these structural obstacles, Owen points to the ad hoc strategies that states can use to mitigate the absence of an institutionalised system of burden sharing. Over-burdened states can refuse to pick up the slack, closing their borders to refugees or encouraging them to move on. Through issue linkage (100), overburdened states can link refugee protection to other issues that appeal to the self-interest of more wealthy states. For example, they can tie refugee protection to regional stability, terrorism, and environmental protection, conditioning their cooperation on these other issues with greater burden-sharing on refugee protection. And finally, by reframing refugee protection (ibid.), overburdened states can exploit the reputational benefits that contributing to international refugee protection confers, enjoying a form of soft power. Thus, Owen notes, doing one’s part can contribute to a state’s global reputation and enhance its domestic self-perception as a “good citizen” (here, he lists Sweden, Germany, Canada, and the Netherlands) (100-101). Contributing to international protection can also provide “ideological sustenance” to a country, such as the United States, that wants to claim a “‘moral right’ to exercise leadership in the global arena.” (101)
For Owen, reframing and issue linkage are crucial to achieving more equitable burden-sharing. And the ad hoc approximation of equitable burden-sharing is not necessarily opposed to the creation of institutionalised burden-sharing, however, there are tensions between the two. Because issue linkage and reframing, as Owen describes them, operate within the context of an unequal relationship between refugee hosting states predominantly in the global South and wealthy states further afar, they involve appealing to the perceived self-interest of wealthy states and indulging their self-understanding—or delusions—of being “good citizens.”
As a result, these strategies can also be self-defeating. Issue linkage appeals to the connections, actual and imagined, between migration, national security, terrorism, transnational crime, and environmental degradation—connections that the far right is eager to press in order to close borders. Similarly, reframing refugee protection to confer reputational benefits on some states may only assuage them that they are doing their part, when in fact they should be doing a lot more. And providing “ideological sustenance” to some countries’ claim to lead morally may only increase the number of refugees, given the violence such moral leadership unleashes.
This is not to deny the importance of improvements. Issue linkage and reframing can win gains for refugees, increasing the numbers that are resettled, providing safer passage, and ensuring rescues at sea. These will, quite literally, be a matter of life and death for many. But these gains are insecure and easily reversed; they reinforce global asymmetries that might interfere with efforts to institutionalise burden-sharing and to put states on a more equal footing; and they sustain narratives about migration and security that may ultimately be self-defeating. Not all improvements are incremental, building upon one another in a progressive trajectory.
4.
Issue linkage and reframing, when employed by states and addressed to other states, are placatory, and as mechanisms of self-correction internal to a system of world-states, they do not more fundamentally change that system and its existing inequalities. Both Owen and Aleinikoff and Zamore therefore look beyond the state. Aleinikoff and Zamore briefly discuss regional approaches; sub-state networks, often informal, of bureaucrats and city officials; and accountability through international reporting mechanisms and criminal liability. And Owen concludes by reflecting on the efforts of citizens in deliberately non-cooperative states—“pretty much all states of the global North” (110)—which include preventing deportation by using Church sanctuary laws and occupying runways, practices of concealment and subterfuge, and providing humanitarian aid even when doing has been criminalised. Rather than bargain with states through issue linkage, these efforts are more confrontational, denouncing the illegitimacy and immorality of state action.
Owen suggests that the unauthorised movement of refugees from their first country of asylum should be recognised as transnational civil disobedience that “draws our attention to the failings of the current regime and, hence, to its inability to repair the legitimacy of the international order of states” (110). When migrants resist the regimes of deterrence, control, and detention to which they are subject, they are not merely pointing out failures to repair the legitimacy of the world-order; they also question more fundamentally the legitimacy of the existing world-order and the borders on which it relies.
In Maurice Stierl’s Migrant Resistance in Contemporary Europe, we are introduced to a range of resistance efforts led by migrants in Europe. Stierl examines migrant protests and occupations in Germany, beginning in 2012 after Mohammad Rahsepar, an Iranian refugee detained in communal accommodation for asylum-seekers, takes his life. Fellow residents and friends began a protest tent action in the centre of town, proceeding to sew their lips shut, sparking tent protests and hunger strikes across Germany, and culminating in a march to Berlin. There, a common tent camp is erected in Oranienplatz, which is occupied for nearly two years until 2014. Stierl traces the political organising leading up to and over the course of those two years, the schisms over standing and strategy, the hunger strikes and further occupations. It is an all-too-rare engagement with migrants’ voices, beyond testimonies of suffering, that instead focuses on migrants’ differing analyses of their own predicament, their varied strategic priorities, and their attempts to define themselves beyond the labels of ‘refugee’ or “asylum-seeker.”
Attending to these voices discloses a far more searching critique of the world order, a clear-eyed view of its inequities, and of who pays the price for the “imagined reconciliation” between state sovereignty and human rights. Existing practices of refugee protection and migration control are preponderantly concerned with keeping citizens of the global South—poor, darker skinned, worshipful of inconvenient gods—away from wealthy states who, having traipsed around the world and pillaged much of it, have retreated with their treasure behind the flimsy banners of sovereignty and self-determination. By these lights, international refugee protection is not a legitimacy repair mechanism so much as a safety valve, allowing a trickle of movement so as to stem the tide. Owen and Aleinikoff and Zamore reveal how this safety valve can be expanded beyond its initial remit; the migrants that risk their lives to make it through imagine, argue, and organize for another world. As it happens, refugee voices do not only matter within institutions of refugee protection as some palliative measure. Rather, refugee voices are crucial for diagnosing refugeehood and laying bare the illegitimacies of a world order that makes refugeehood such an enduring, and despairing, feature of political life.
Posted on 4 August 2022
ASHWINI VASANTHAKUMAR is an Associate Professor and Queen’s National Scholar in Legal and Political Philosophy at Queen’s University Faculty of Law. She is the author of The Ethics of Exile: A Political Theory of Diaspora (Oxford University Press, 2021).
