Northern Questions About Global Protection Dilemmas
A response to Arc of Protection
Arc of Protection: Toward a New International Refugee Regime by Alex Aleinikoff and Leah Zamore is a statement about refugee protection that goes back to basics and spells out a coherent and innovative perspective. After reading the manuscript, I changed my view on many points. I found particularly compelling the argument that all “necessary fleers,” those who are forced to leave their homes because life there has become intolerable, merit a response from the international community. The book has also convinced me that the current political crisis over refugee admission in Europe detracts attention from the urgent task to address and avoid protracted refugee situations in the global South.
In the vein of friendly critique, I would like to raise a few points where I still have doubts or questions:
A. In the Arc of Protection the authors argue against the “membership account,” the view that refugees have claims to asylum as surrogate membership in other states primarily because they have lost the protection that their citizenship of origin is meant to provide. I think they are right that the broader category of displaced persons or “necessary fleers” requires a different set of goals and corresponding state and international responsibilities. A system of individual asylum determination does not make sense to determine the status of displaced people in need of protection. However, I think that something gets lost if states’ responsibilities towards refugees are entirely needs-based and thus no longer different from those for internally displaced persons or the worst-off stayers (as Aleinikoff and Zamore acknowledge). I would thus add two elements:
(1) Special responsibilities that particular states have towards particular refugees. These may be based on historical ties (especially former colonialism) or causal involvement in the displacement (through support for tyrannical regimes, economic exploitation, involvement in foreign interventions). They can also be based on proximity, if the potential host or donor states have superior resources for protecting refugees in their neighborhood. I would, for example, argue that the EU has a special responsibility of that kind for refugee situations in the Middle East and North Africa region.
(2) General responsibilities for refugees that are supported by the “membership account.” Aleinikoff and Zamore are right that such an account may not be sufficient for supporting the responsibility to solve protracted situations. But there is also something that risks getting lost if the membership account is dropped or deemphasized:
(2.1) The reasons that democratic states have to offer asylum and eventually citizenship to those who have de facto lost theirs. The traditional republican arguments for asylum provides that were prominent in the French and American revolutions provide domestic constitutional reasons why free states ought to admit those claiming asylum. Appealing to such internal reasons may be important in order to win domestic political support for refugee policies.
(2.2) The general responsibilities that all states have towards each other as members of the international state system where every person is supposed to have a state that is responsible for protecting her rights.
Aleinikoff and Zamore have convinced me that these responsibilities are not fully exhaustive and sufficient but not that asserting them is counterproductive. On the contrary, I think they remain necessary and that they strengthen an international protection regime.
B. For related reasons, I would put more emphasis on refugees’ access to citizenship than the authors do. True, Art. 34 of the Convention Relating to the Status of Refugees does not establish a duty to naturalize, but it asserts that states should facilitate naturalization and I have always read this as implying: compared to other immigrants. I assume the authors support the liberal consensus that ordinary immigrants too, must be set on the path to citizenship. Refugees would then have a claim to speedier naturalization, based on the fact that, unlike other migrants, they cannot rely on their citizenship of origin for protection. A number of states recognize this by lowering residence requirements for refugees’ naturalization. You can see which countries do this by checking mode A22 in the GLOBALCIT modes of citizenship acquisition database. This is quite different from Aleinikoff and Zamore’s proposal in chapter 3 to amend Art. 34 “to provide a right to citizenship after a lengthy stay as a refugee with no prospect of return in the foreseeable future.”
C. I think access to citizenship is also crucial for promoting mobility, which strikes me as the most original part of Aleinikoff and Zamore’s proposal. Once refugees have gained a new citizenship, this is a gateway to more mobility, since they can then travel and be protected just as other citizens of their host state. In the EU, ECOWAS and UNASUR/MERCOSUR, having one such citizenship even enables them to move freely and take up work in another member state. By contrast, a new Nansen passport — the first legal travel document for refugees — without a recognized citizenship is likely to produce only much more precarious mobility rights. States tend to accept free movement arrangements on a basis of reciprocity for their nationals, also because this benefits their citizens. They will be very reluctant to grant similar mobility rights to non-nationals. And individuals might easily find themselves trapped in de facto statelessness once they move out of their country of asylum. Hannah Arendt’s narrative about the gradual deterioration of the status of stateless people (who were often interested in statelessness as a protection against forced return) in the interwar period provides a cautionary tale.
I would thus not regard internationally agreed mobility for refugees who have not acquired another citizenship as a permanent solution but as only a transitory one. Aleinikoff and Zamore’s argument for mobility still provides an important critique of the current thinking about permanent solutions: instead of conceiving of local integration and settlement as a solution, we should think about the acquisition of a new citizenship as the durable solution that enables new forms of mobility beyond the state of asylum.
D. As I mentioned before, I think Aleinikoff and Zamore also need to acknowledge that there is a conflict between responsibility-sharing solutions that might be agreed in a Global Action Platform on Forced Displacement, on the one hand, and freedom of secondary movement for refugees, on the other hand. Any agreed scheme of allocating refugees to states and funding for host countries by states that want to take in fewer refugees is likely to be upset if refugees can freely choose to move to their preferred destination. In chapter 3 the authors write: “[R]ather than states selecting refugees, refugees select states.” In Europe, it has been precisely this perception of refugees choosing their preferred destinations that has made it impossible to implement a fair sharing of responsibilities between first countries of asylum and major destination states.
I think therefore that a fair burden and responsibility-sharing system, especially among welfare states that offer costly social protection to refugees, must go along with an initial restriction of movement across member states of the system. I agree, however, that such relocation with constrained mobility does not resolve the issue. A resolution is achieved, once member states can agree that refugees are no longer in need of international protection AND that their host states can no longer claim that their presence is a burden that ought to be compensated by the other states. At this point, refugees who move on to other states turn into migrants. And in order to be able to move freely and with their rights protected, they ought to be given fast-track access to their host states’ citizenship.
E. Aleinikoff and Zamore say little about the dilemmas arising from “mixed motives” and “mixed flows,” i.e., the difficulty of distinguishing those aiming to improve their economic opportunities from those who have little choice but to flee as well as the fact that the same person can rationally combine both motives. However, broadening the category of persons who have claims to international protection to “necessary fleers” makes it even more urgent to assure states that there will be ways to distinguish responsibilities towards refugees from their admission policies towards migrants.
In a world where borders are not generally open, admission policies for migrants ought to be guided by a utilitarian logic of “triple wins” for host states, origin states and migrants. This normative logic is fundamentally different from that of state responsibility for displaced persons. How should those states that are attractive destinations for economic migrants go about distinguishing these two types of admission claims? One response is that they need to open regular admission channels for labor migrants in order to reduce the incentives for seeking admission as a “necessary fleer.”
But the logic of triple win also justifies limiting labor immigration if it does not benefit the host state. Given the huge economic disparities and enhanced mobility opportunities in today’s world, it is very likely that there will always be reasons for people who do not qualify as “necessary fleers” to try to use special channels designed for refugees and asylum seekers. What status determination system should such desirable destination states then use to distinguish “necessary fleers” from migrants? What should they do to undercut the trafficking? How should they handle returns to countries of origin that are not cooperating? Arc of Protection has convinced me that these may be somewhat parochial European or “Northern” concerns compared with the problems of protracted refugee situations in the global South. But the authors will still be asked to address these questions when presenting their argument in Europe or North America.
Rainer Bauböck held a chair in social and political theory at the European University Institute in Florence from 2007 to 2018 and is currently part-time professor at the EUI’s Robert Schuman Centre for Advanced Studies as well as chair of the Commission on Migration and Integration Research at the Austrian Academy of Sciences, Vienna. Together with Maarten Vink and Jo Shaw he co-directs GOBALCIT, an online observatory comparing citizenship around the world.