Disturbing our Dogmatic Slumber

The welcome provocations of Aleinikoff and Zamore

The international approach to refugees and asylum seekers needs to be radically altered, just one of the themes taken up by Arc of Protection: Toward a New International Refugee Regime by Alex Aleinikoff and Leah Zamore. The book is both thought-provoking and engaging and I very much welcome its renewed stress on the rights in the 1951 Convention (which has always been part of my sense of the regime). Here are some provisional thoughts on the text:

1) Given the detailed discussion of the 1951 Convention and the role this plays in the authors’ argument, I was slightly surprised that there was almost no discussion of the 1967 Protocol Relating to the Status of Refugees. Given the changes noted in the UNHCR role, there is a natural question — namely why did the 1967 Protocol not amend the substance of the 1951 Convention rather than merely removing its temporal and geographic restrictions? What salience does the fact that the substance of the Convention was, effectively, re-affirmed when universalized and de-temporalized have for your argument?

2) I found the discussion of “protection” in the 1951 definition fascinating and persuasive — but was less sure of inferences drawn from this. I think that the genealogy of the Modern Standard View (MSV) is very helpful but had two issues with it. First, you say that MSV “was adopted to solve a particular problem in cases involving persecution committed by non-state actors. Thus, it was reasoned that a person who faced persecution from a non-state group could still be a refugee if the home state failed to prevent the harm because it was either unable or unwilling to do so (think here of a fundamentalist group that imposes extreme harms on women that a state is unable to control).” But one might wonder how there was a visible problem here to address.

To stick with your example, it is unclear that a woman who flees Afghanistan for the UK because the Afghan state does not have the ability to protect her from the Taliban within her country thereby has reason based on fear not to avail herself of the external protection of the Afghan government when in the UK, she simply has reason to fear being returned to Afghanistan. I would have thought that it is more plausible that MSV arose from a fairly natural (if perhaps mistaken) reading of the definition in which “protection” is taken to encompass external/diplomatic protection in the state of refuge and protection by the home state if returned to it — and the ability of MSV to deal with non-state actor cases simply buttresses its appeal in this context in which the mis-reading (on your account) has already happened so that the issue of non-state actors arises as an issue (which it does only if we read protection in this encompassing sense — so MSV conceptually creates the non-state actor problem which it then solves).

Second, the movement from this discussion of “protection” to the rejection of the view that “refugee protection as a whole is constituted by 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” was less clear to me, since we are, after all, addressing forced migration. I can happily accept the reading of the Convention that the authors’ offer without thereby needing to give up the thought that refugees mark out a specific class of forced migrants for whom the need for a range of specific rights designed to enable them to reconstruct their lives under alien conditions has a particular salience — and does so because, unlike other forced migrants or necessary fleers, they have reason to want not to avail themselves of the protection of their own state in the state to which they have fled, namely, that this state has acted, or is likely to act, in ways that deny their political standing as citizens.

This brings me on to a new point: the issue of political rights. I appreciate that you are de-centering the Convention refugee in order to reframe the discussion in a way that I found really helpful and productive — and this matters because whereas I think there are very compelling reasons for Convention refugees to get accelerated access to naturalization, the point does not generalize over “necessary fleers.” (I would generally distinguish forced migrants who require asylum from those who require refuge.) However, I do think that two kinds of political membership are needful for all necessary fleers:

1) “Municipal membership” as the political complement to labor and welfare rights — this strikes me both as vital for any kind of responsiveness to necessary fleers in their immediate context as well as for integration.

2) “Global membership” by which I mean collective international standing for necessary fleers in terms of representation in international institutions (this obviously relates to your focus on voice— see here for example.

In terms of political rights at the level of the state, there is an interesting argument recently advanced by Ruvi Ziegler for non-citizen voting rights for refugees which could be generalized — and obviously there are a range of arguments here. [1]

I really liked the authors’ argument that “necessary fleers” should be entitled to mobility rights as a way of affirming and securing refugee agency — and such rights would as they say undermine the people smuggling industry — although it may be a hard political sell. They comment:

We are not so naïve as to think that systemic mobility can be adopted immediately. There would be strong opposition from third countries that would (correctly) believe that they would receive large numbers of refugees. This would not constitute fair burden-sharing any more than the current situation of “responsibility by proximity.” So states may want to ease into mobility, perhaps establishing annual quotas, or requiring refugees to establish that there is an employer who has offered them a job. Or mobility could be established at a regional or sub-regional level — as in the EU and among ECOWAS states.

The current political crisis of EU integration sparked by “the refugee crisis” suggests this may still be optimistic. One initial starting point that may get more governmental traction might be the “refugee match” model? This recognizes the heterogeneous preferences and diverse ranking of preferences of refugees and of states in relation to the end of inclusion and integration.[1] The basic idea here is that, given sufficient global resettlement capacity, the legitimate preferences of states and of refugees, expressed as rank ordered sets, could be algorithmically matched. Refugees, in principle, could submit their preferences from anywhere, saving them the risk of a dangerous journey and the extortion of people smugglers. This system involves no payment, works where there are quotas or other constraints, and can be made to work so that it is:

  1. Comprehensive — all refugees within the system are hosted somewhere (with quotas agreed by participating states adding up to the total number of refugees seeking places “in the marketplace”).
  2. Stable — refugees and countries do not end up dissatisfied with their choice and wanting to “re-match” by undertaking secondary movements.
  3. Efficient — no refugee can be made better off without making at least one other refugee worse off.

Finally, it can be made “safe” for states and refugees to honestly reveal their true preferences.[1]

In the somewhat technocratic form advanced by Jones and Teytelboym, this matching system focuses on the state of asylum preferences of refugees and the types of refugee preferred by states (for example, whether they speak a major language of the state of asylum). Appropriately adjusted, [2] this may provide a route for rebuilding a robust sense of the benefits of refugees to states of refugee, while respecting refugee choices, that enables the further step of establishing refugee mobility rights.

Alternatively, the authors may need to give more specificity to the mobility recommendation — is it just “visiting rights” in the first instance or “settlement rights” from the start? They recognize that general mobility could just undermine any fair notion of responsibility-sharing but perhaps this could be mitigated if refugees had a portable and reasonably generous package of resources attached to them that went to whichever state they choose to reside in.

Nevertheless, this manuscript is the most thought-provoking intervention on rethinking “the arc of protection” that I have read and I look forward to reflecting more on the challenges to my own dogmatic slumber that the authors’ have laid down.

David Owen is a Professor of Social and Political Philosophy at the University of Southampton. He writes on a range of topics including migration and refugee protection.


[1] To be a refugee is, to a very significant degree, to lack an ability that is taken for granted by citizens who conduct their lives against the background of a right to secure residence of a state, namely, the ability to plan their futures, to make choices about the medium-term or long-term direction of their lives. The point here is not that such choice-making is not constrained by circumstance, but that the kinds of choices and, hence, plans available to an agent are significantly dependent on the institutions, practices and relationships that compose the social context that they inhabit. Everyday social contexts shape the horizon within which persons coherently conceive of, and act to realize, their future selves – and to inhabit a condition in which the social conditions of one’s agency are constitutively open to being ruptured through repatriation is to lack a secure horizon in terms of which to engage in the activity of planning and shaping one’s future. The cost of adopting ‘temporary citizenship’ or ‘non-citizen voting rights’ as a solution for the lack of political standing of refugees is that, in contrast to quick naturalisation, it leaves this problem in place. This is a particularly significant issue for refugees because:

To be a refugee is not simply to be an individual who has lost the protection of her basic rights; it is to be someone deprived of her social world. It is to be someone who has been displaced from the communities, associations, relationships and cultural context that have shaped one’s identity and around which one’s life plan has hitherto been organised. Unsurprisingly, then, refugees often describe their experience as one of confusion, dispossession, and disempowerment. As one Somali refugee who sought asylum in Italy described his experience: ‘there’s a total void, a feeling of total disorientation’[1]

Against the background of this basic feature of refugee experience, the issue of securing conditions of rebuilding a social life, of enabling autonomy, have a specific normative significance.

[2] Two issues need particular attention. First, the kind of preferences that should be the relevant focus. For example, the vast majority of Syrian refugees who have expressed a preference for a state of asylum in the EU have identified Germany as their first choice. There is, first, an issue concerning the formation of these preferences, that is, whether they have been formed through a reliable epistemic process. This issue becomes particularly pertinent as refugees move to lower ranked preferences where the informational basis on which the ranking is made may be poor. Acknowledging this issue links to a second point, that is, whether more general preferences – or what I have described above as ‘reasons for choices’ – might provide a more robust basis for capturing what is valuable for refugees because less dependent on the refugee possessing accurate information about possible destination states. These more general value preferences could then be used in conjunction with epistemically robust indicators to generate a ranking of preferred states of asylum.

The second issue concerns the distinction between preferences and legitimate preferences. Notice first that it is an important point about this proposal that the preferences of states (or refugees) should play no role in determining who is eligible for resettlement. I have essentially bracketed that question so far by assuming a context in which all refugees who meet the relevant criteria for asylum are selected for resettlement, but in a context in which the available spaces for resettlement were less that the demand, it would be crucial to the fair functioning of this system that selection for resettlement was not shaped by state preferences and that only the resettlement of those who were selected (whether by lottery or by need or on some other basis) was done through such a matching scheme. Under such non-ideal conditions, respect for the equal standing of refugees requires that they each have a fair chance of resettlement, where the relevant determination of the idea of a fair chance (for example, selection of the basis of need) is justifiable to them. With this point in place, we still face the issue of distinguishing preference and legitimate preferences – could a state, for example, legitimately express a preference for refugees who are Christians or who are highly educated or who are young? These features may, after all, be salient for supporting the goal of inclusion and integration in these states. Much here depends on the reasons for these preferences, for example, it would seem prima facie to be an expressive wrong for a state that had a religiously diverse citizenry to express a preference for refugees of a particular religion (unless perhaps as a way of supporting a minority religious group that faces social discrimination). However, there may be legitimate reasons for a developing state in need of skilled professionals to bolster its human rights or democratic infrastructure to express a preference for skilled workers or for a state with an age-imbalanced population (e.g., Italy, Germany) that weakens the sustainability of socially just relations within the state to prefer younger refugees. Given that the selection of those for resettlement is not affected by such choices, these preferences may be legitimate where they support goals in addition to inclusion and integration that we have independent reasons of justice to value.

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David Owen

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