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The Arc of Protection Chapter 2

Protection, International Protection and Necessary Flight

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 second chapter. Earlier today, we published the introduction and Chapter 1. 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

 

 

That persons fleeing danger across international borders should be cared for — and not returned to harm — is uncontroversial. We believe that the moral case for assisting the displaced is “overdetermined.” They are “necessitous strangers,” to borrow Michael Walzer’s phrase; [1] fellow human beings who have experienced tragedy and trauma. To turn our backs on them is to deny our own humanity. Usually what they seek from our collective selves is far less than the benefits bestowed upon their individual lives. It is not surprising, then, that the Abrahamic religions enjoin adherents to care for the strangers in their midst. [2]

Persons displaced across borders are also victims of the international system of nation states. Subject to brutality in the state to which they have been assigned (for most, assigned through no choice of their own) and which, according to the system’s rule, has near complete “sovereignty” over them, they have crossed a border only to find themselves in another state which exerts similar claims to authority over their lives and their fortunes. They have no place on earth to flee to where they are free to help themselves. But the claims they put forth — that their fundamental human rights have been violated — invoke obligations that the nations of the world have, in exercise of their sovereignty, assumed. The UN Charter, and other international instruments, commit states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all.” [3] Most nations of the world have ratified either the 1951 Refugee Convention or its 1967 Protocol, and even those states that are not signatories (including Jordan, Lebanon, Pakistan and Thailand) currently protect millions of refugees. Meanwhile, when states take harsh actions against displaced persons, they generally deny that a violation of rights has occurred — for instance by calling refugees “economic migrants” or by insisting that conditions in their home countries are “safe” to be returned to; this further suggests that states consider themselves to be bound by the norms of international refugee law.

Most refugees find safety in poor countries nearby to their own. The communities that take them in are often as poor, or in some cases poorer, than refugees themselves. So caring for the world’s displaced can therefore be seen as one in a range of efforts to ameliorate global inequality, as most refugees derive from the global South and most of the aid they receive comes from richer states in the global North. If all this were not enough to justify protection for refugees, one could point to the self-interest of states, in both political and security terms, in paying attention to the root causes and consequences of forced displacement. [4]

To note a global consensus on the case for aiding the forcibly displaced is not to specify the content of moral or legal obligations. Those questions, of course, are quite contentious. Part of the problem is that the terrain on which the arguments occur is a constantly shifting one. Sometimes the focus is on what classes of persons should be deemed to come within the Convention’s definition of “refugee” or how that definition might be expanded to include similarly situated groups. This approach is of particular interest to lawyers and advocates, who argue in favor of capacious readings of the Convention’s definition in order to extend rights to as broad a scope of people as possible. An alternative approach is to concede that the Convention definition is of restricted compass, but to assert that other categories of forced migrants warrant international concern as well. This strategy typically proceeds by identifying an underlying principle justifying assistance — such as flight from violence, or protection of fundamental rights or needs — and then showing that it is arbitrary to include only groups that come within the Convention’s definition.[5] That the Convention’s definition arises from a particular historical moment reinforces this sense of arbitrariness.

We want to approach this debate from a different perspective. We start with the simple proposition — one, as we will argue, that is widely embraced in theory and practice — that persons who flee from circumstances in which they face a serious risk of harm should be received elsewhere and should not be forcibly returned (or be asked to return) to a situation in which they would face a serious risk of harm. We then explore for these people, whatever their motivations for leaving or the motivations of those who would do them harm in their place of origin, the nature and scope of the collective responsibility of the international community to aid them. We will call the content of that responsibility “international protection.”

These seem like straightforward and not particularly controversial propositions. And yet they do not reflect the prevailing conceptions of who is entitled to aid, what that aid should be, and what “protection” means. We believe that the discussion of “protection” — a word that defies easy or precise definition — went off track in the nineties and led to a fundamentally flawed description of the purpose and promise of the international refugee regime. We do not suggest a return to the “original understanding” — although our reconceptualization is at home with the purposes of the Convention and the regime in important ways. Instead, we suggest a 3.0 version of international protection, one that identifies more fully the responsibilities of the international community and member states of the international refugee regime.

Our approach is more empirical than linguistic. We look to existing international and regional practice to see how the relevant questions have been approached in the past and in our day and the expectations that have been created. Our claim is not that what is, is right; rather, we believe that an approach that looks both at precepts and practices will describe a trajectory of international responsibility and institutional design — an arc of protection — that can offer life-saving and life-sustaining aid to persons whom the world believes merit our deepest concern.

To read more please click here.

T. Alexander Aleinikoff is University Professor and Director of the Zolberg Institute on Migration and Mobility at The New School.
Leah Zamore directs the humanitarian program at the Center on International Cooperation.

 


[1] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality, (New York City: Basic Books, 1983), p. 48.

[2] See E. Padilla and P. Phaneds.,Theology of Migration in the Abrahamic Religions, (New York City: Palgrave Macmillan, 2014).

[3] See Art. 55, Section C; Preamble, 1951 Convention Relating to the Status of Refugees; Preamble, International Covenant on Economic, Social, and Cultural Rights, 1966.

[4] See James C. Hathaway, “Why Refugee Law Still Matters,” Melbourne Journal International Law, no. 8 (2007): pp. 89-103.

[5] Aristide R. Zolberg, Astri Suhrke, Sergio Aguayo, Escape from Violence: Conflict and Refugee Violence in the Developing World , (Oxford: Oxford University Press, 1989), pp. 258-262; Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement , (Ithaca: Cornell University Press, 2013), pp. 12-15.

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