The Arc of Protection Chapter 1
The Inconvenient Refugee
PS Books is proud to be publishing a draft of a pathbreaking study of the international refugee crisis, along with informed commentary by a group of the leading experts in the field. This is the first chapter. Earlier today, we published the introduction. Later today and next Tuesday, we will publish the remaining four chapters of the series. The commentaries will follow. We are experimenting here, presenting a preview of a book, for comments, to which Aleinikoff and Zamore will respond in the final version of their book. For this reason, they welcome and are especially interested in responses from our readers. —Jeff Goldfarb
In the state of nature, we suspect, people are regularly forced from their homes. The mightier and meaner take what they can — shelter, land, belongings — from those for whom they feel no restraining ties of affiliation. Those forced to flee move to where they are able to survive, a place either with no humans, friendly humans, or humans they themselves can displace.
It is only in a world of states that forced migrants become — and remain — refugees. Persons flee their homes and their communities either because their state has targeted them for severe harm or has failed to prevent the conflict and violence that makes residence at home intolerable. They become refugees by crossing an international border. Their inability to be “mere” forced migrants, pushed from their homes but able to find safety elsewhere on their own, follows from the fact that states have collectively claimed the globe; there is no open, habitable space to which one can flee. So refugees are a “problem”  that the international community of states both creates and must deal with; they must be let in somewhere. But where?
Stripped of home and belongings, separated from community and family, refugees assert moral and humanitarian claims that are powerful and easily understood. These claims are made to the conscience of their fellow human beings — and their persuasiveness is proven by the unease felt by the world community when it fails to respond. Refugees also make claims on states qua states. Here the countervailing interests are asserted with less of a sense of shame because refugees’ requests for admission into territories of states not their own run up against a fundamental norm of the international system: that states, as a core aspect of sovereignty, have full control over whom they choose to permit to enter. From this perspective, refugees make an extraordinary claim, asking states to waive their rights to control their borders — an exception triggered usually by the acts or omissions of another state and the movement of its citizens. It is thus not surprising that states tend to view the admission of refugees into their territory as an act of humane charity and human solidarity, but not as a matter of recognizing the right of refugees to enter.
The sovereigntist approach to forced migration held firm through the first half of the twentieth century. Hannah Arendt’s celebrated chapter in Origins of Totalitarianism on the parlous state of refugees (whom she largely equated with stateless persons) showed just how little the world thought it owed, as a matter of right, to the forcibly displaced in pre-World War II Europe. Pushed from home states and denied membership elsewhere, refugees were rightless and (de facto) stateless — conditions that, as Arendt noted, neither scholarly writings nor hortatory declarations on the human rights of all persons could prevent or remedy. 
Appeals to state sovereignty as a way to privilege border control over the claims of refugees continue in our day. Fences have once again gone up in Europe as boats have gone down in the Mediterranean. A refugee camp in Kenya which houses several hundred thousand persons is threatened with closure and refugees are told to prepare for return. The United States interdicts vessels in the Caribbean; Malaysia and Thailand push back boats on the Andaman Sea; and Australia “excises” part of its territory from its usual migration rules, thereby denying persons arriving by boat a right to apply for asylum. After providing safe haven to more than four million Syrian refugees, Lebanon, Jordan, and Turkey seal their borders to prevent further entries.
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 The Preamble to the 1951 Convention relating to the status of refugees “express[es] the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,” and notes that “a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.”
 Thus states granting asylum make a strong intervention, effectively cutting off the claim of the home state to exercise authority over its citizen. See Matthew E. Price, Rethinking Asylum: History, Purpose, and Limits(Cambridge: Cambridge University Press, 2009), pp. 167-169.
 Hannah Arendt, The Origins of Totalitarianism (New York City: Harcourt, 1973), pp. 267-302.