Refugees and the Ethics of Forced Displacement

Serena Parekh

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138346772
• eBook ISBN: 9781134667758
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

This book is a philosophical analysis of the ethical treatment of refugees and stateless people, a group of people who, though extremely important politically, have been greatly under theorized philosophically. The limited philosophical discussion of refugees by philosophers focuses narrowly on the question of whether or not we, as members of Western states, have moral obligations to admit refugees into our countries. This book reframes this debate and shows why it is important to think ethically about people who will never be resettled and who live for prolonged periods outside of all political communities. Parekh shows why philosophers ought to be concerned with ethical norms that will help stateless people mitigate the harms of statelessness even while they remain formally excluded from states.

The Open Access version of this book, available at https://doi.org/10.4324/9781315883854, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

1 The Moral Significance of the Refugee Regime

The state of forced displacement today is historically unprecedented. Not only is a sizable proportion of the human population residing outside of a formal political community, but many people who find themselves in this situation are here for close to a generation, confined to camps or other spaces of containment that, by their very definition, impose restriction on rights, freedom, and autonomy. This situation and how we ought to respond to it—that is, large-scale, protracted refugee situations and encampment—is the subject of this book. It has not, I believe, been treated with the moral seriousness that such a fundamental and systematic degradation of human dignity ought to be. The goal of this chapter is to understand how we have arrived at this situation, why it is not given the moral and intellectual scrutiny that other global injustices have received, and ultimately, how we may develop a more meaningful normative framework in the future.

There are somewhere between 65.3 and 72 million people who live effectively outside of the protection of their home states and do not belong in any meaningful sense to a political community or have effective access to rights or state protection.¹ To put it another way, a population almost the size of the United Kingdom—one in every 100 of the world’s citizens—lives more or less permanently outside the nation-state system, and no state acknowledges individual political or moral responsibility for this group. Of those the UNHCR considers to be people they are responsible for,² 40% live in refugee camps, where “host governments and humanitarian actors provide assistance and services in a centralized manner. The defining characteristic of a camp, however, is typically some degree of limitation on the rights and freedoms of refugees and their ability to make meaningful choices about their lives” (UNHCR 2014b, 4).³ Further, once displaced, the average length of time that people remain in this situation is 17 years (UNHCR 2006), and two thirds of refugees live in protracted situations (US Department of State 2015).⁴ Less than 1% of official refugees are likely to ever be resettled permanently in a third country, and thus the number of de facto refugees (people who are in a refugee-like situation but who fail to meet the criteria for a refugee as found in the Refugee Convention) who will be resettled is even more insignificant (UNHCR 2015).⁵

This chapter will proceed as follows. I start with a detailed examination of the refugee protection regime and the different normative obligations that states have to refugees. I then discuss the way that thinking about solutions to the problem of refugees has evolved, from resettlement to repatriation to containment. I suggest that there is a moral ideal that underlies our reliance on containment: the belief that repatriation (that refugees should be sent back to their home countries) is the best solution goes hand in hand with a belief that refugees and asylum seekers ought to be contained and controlled until this becomes possible; containment is tacitly justified as an unfortunate but necessary step to achieve this higher good. I then give a detailed explanation of how encampment—the containment and confinement of the displaced, often for prolonged periods and in ways that undermine their dignity and human rights—functions as the de facto “fourth” durable solution and explain in detail why this solution is so problematic, paying particular attention to the ways that basic human rights are violated in camps. Though it seems removed from Western foreign policy, I shed light on some ways that Western states support encampment both directly and indirectly.

My analysis shows two important facts which, I argue, ought to play a larger role in our thinking about the ethics of refugees than they currently do. First, encampment or containment has become the de facto fourth solution for involuntary migrants, one that many are reluctant to acknowledge. Second, this solution, far from in fact being a real solution for the displaced, constitutes a unique harm, one that can and ought to be avoided. As a result, encampment ought to be understood as one of the most serious global problems today. Though part of our moral failure is that we do not resettle enough refugees, another significant problem is that we support a refugee regime that systematically undermines the rights of the displaced for the sake of protecting our sovereignty, and specifically the right to control immigration and citizenship.

Understanding the harms around forced displacement in this way, as well as seeing the connection to Western states, forces us to reconsider what we owe to the forcibly displaced. I argue that my analysis gives rise to two fundamental obligations. First, given the analysis I develop, we have an obligation to reject long-term encampment as a “solution” for displacement, or to reform it so that it is in line with moral principles and protects the rights and dignity of the displaced. We must morally challenge the practices of containment and control currently exercised over millions of displaced people that are neither inevitable nor politically or economically necessary. Second, I argue that we have an obligation to work towards a just refugee regime, one that takes seriously the full human rights of the displaced (not merely their survival needs) as well as the interests of states. Philosophers, I suggest, are in a position to provide some moral clarity about how the international system in general and the refugee regime in particular ought to function, and can help to analyze the ethical norms that ought to govern the treatment of involuntary migrants who are displaced for prolonged periods. While I outline these obligations here, Chapters Two, Three, and Four of this book develop and strengthen the ground for these obligations. This chapter concludes on a hopeful note through observing that international norms are at least beginning to change in a direction away from encampment.

Let me address a potential objection at the outset. As of 2015, the majority of forcibly displaced people no longer live in refugee camps, but either in urban areas or in rural areas without the assistance of the UNHCR (UNHCR 2014c). Given this, why focus on the morality of supporting refugee camps and policies of encampment? There are several reasons why it is still important to focus our moral analysis on refugee camps. First, until very recently, refugee camps have been the “assumed foundation of refugee policy,” in the sense that this was the first mechanism the UNHCR and other aid organizations used in their attempts to help refugees (Kagan 2013). As late as 1997, the UNHCR considered refugee camps “normal and good, and refugees should be discouraged from trying to leave them” (Kagan 2013). A change in rhetoric came only in 2009 with their Policy on Refugee Protection and Solutions in Urban Areas, in which the focus has started to turn to refugee autonomy, rights, and the ability of refugees to support and sustain themselves with dignity.⁶ Though there has been a change in rhetoric around the permissibility of refugee camps, they still remain the standard way that the international community approaches displacement, and are still widely believed to be necessary for security. We need only think of the many camps that have sprung up in Europe since the summer of 2015 to handle the influx of Syrian refugees to see that camps are still the primary way of dealing with refugees.

Further, when the UNHCR and other humanitarian agencies are able to help the displaced, it is primarily through camps. Often agencies cannot locate or count those in need of help when they are absorbed in urban areas. The displaced have to make a decision between receiving aid or maintaining their freedom by not registering with the UNHCR. Finally, while 40% is no longer the majority, 40% of 65.3 million is still a sizable proportion of the human population who is subject to conditions that are morally questionable and thus still a worthwhile focus of philosophical attention. Since the use of camps has only increased in Europe recently, it is fair to say that refugee camps will continue to play a role in the treatment of the displaced in the foreseeable future.

§ What Is the Refugee Regime?

Protecting refugees and other involuntary migrants is a complex task, involving a number of actors and institutions that follow various norms and rules, both formal and implicit. Specifically, the “refugee regime” refers to “the set of norms, rules, principles and decision-making procedures that regulate states’ responses to refugees” (Betts 2011, 56). It is comprised of “a network of states, international organizations, and non-governmental organizations” that “govern those who are forced to flee their homes because of fear for their lives” (Barnett 2011, 106). The primary document that lays out the structure of the refugee regime is the United Nations Convention and Protocol Relating to the Status of Refugees (alternatively called the Refugee Convention).⁷ The body that oversees the Refugee Convention, the United Nations High Commissioner for Refugees (UNHCR), was created at roughly the same time. It is the principle humanitarian agency responsible for implementing the Refugee Convention⁸ and perhaps the most important actor in the refugee regime.

Though the UNHCR was created to oversee the 1951 Convention, its original mandate was much more limited than the one that has evolved over time as the UNHCR’s moral authority grew. In 1951 the UNHCR was given a very limited mandate, “a reflection of the states’ desire to limit their responsibility” (Barnett 2011, 119).⁹ At first it was only permitted to aid those who became refugees before 1951, and the kind of aid it could give was very limited: it could issue travel documents, help refugees to obtain a legal status, and advocate for more precise guidelines, but it did not have the authority to provide material assistance. It had only a small budget from the UN’s general operating budget, and was prohibited from raising or spending money without the approval of the UN’s General Assembly (Barnett 2011, 119). This reflects the almost paradoxical nature of the UNHCR and the refugee regime in which it plays a large role. When the UNHCR was created in 1951, its mission was to protect refugees and ensure their human rights in the absence of a state; it was created from a largely humanitarian impulse. Yet it was created in such a way as to not be threatening at all to the sovereignty of states or their ability to control membership.¹⁰ Over time, the UNHCR was able to overcome some of these limitations in part because it developed a kind of moral authority regarding refugee issues, and in part, because in the wake of post-Cold War refugee crises, the agency was expected, and needed, to play an increasingly bigger role in world affairs.

The purpose of the UNHCR, of course, is not just to protect refugees but also to find a “solution” to their situation and loss of membership in a state. The three “durable” solutions that the UNHCR aimed at were repatriation to the home country, integration in the country of asylum, and resettlement in a third country. One often neglected detail about the history of the 1951 Convention is that the drafters imagined that refugees would be integrated into the countries of asylum while they waited for a permanent solution, rather than being warehoused in camps; they thought that only exceptional “hard core” cases would require that the international community maintain them in the long term. The UN secretary general in 1950 wrote, “The refugee will lead an independent life in the countries which have given them shelter…. They will be integrated in the economic system of the countries of asylum and will themselves provide for their own needs and those of their families” (Smith 2004, 42).

The UNHCR has grown to become a giant institution and works with over 740 other international and national NGOs along with other UN agencies like the World Food Programme, UNICEF, and the World Health Organization, among others (UNHCR 2014a, 27). Despite its scale, it still remains dependent on the member states of the UN. The UNHCR is dependent on states both for their funding and for their cooperation in securing resources, providing security, and hosting and resettling refugees. In the view of some scholars, this structural feature limits the potential of the UNHCR to help the displaced and advocate for political solutions. That the UNHCR should require the permission of host states to carry out its operations is perhaps not surprising given the importance placed on sovereignty at the global level. But the lack of mandatory assessed contributions from states that makes the UNHCR wholly dependent on donor states for its survival is unusual, especially given that this is unique to the UNHCR of all UN organizations. The UNHCR’s entire budget comes from a handful of countries, with the US, Japan, and the EU accounting for 94% of all state contributions (Loescher 2012, 6). The worry is that because it is dependent on so few states, its ability to operate independently is compromised, especially when it might go against the perceived interests of these states. The UNHCR, writes Loescher, “is in no position to challenge the policies of its funders and host governments” (Loescher 2012, 6). This is a clear limitation for an institution whose job it is to find political solutions to the global crisis of refugees.¹¹

The refugee regime more broadly can be understood as containing two sets of normative obligations for states: one set of obligations has to do with what states are required to do when asylum seekers arrive on their territory, while the other set of obligations has to do with state obligations towards those seeking refuge in countries other than their own. One of the distinctive features of the refugee regime is the asymmetry of these two sets of obligations: the former set is much stronger and more widely recognized than the latter. Indeed, many claim that there is a relative absence of legal obligations by states to protect refugees who are not on their territory.

Most scholars agree that the strongest norm in the whole refugee regime is non-refoulement, which is part of the 1951 Convention. This norm holds that a state cannot send back a person who has a well-founded fear of persecution. What this has meant in practice is that people who arrive in a country and claim asylum must be given a hearing before they can be deported. Over time, a strong normative and legal framework has developed to support this norm, and most states, at least in principle, acknowledge its legitimacy. As a result, non-refoulement has become a well-accepted principle of international law and is the cornerstone of the refugee regime because of its wide acceptance. This remains true even though many states have looked for loopholes to avoid their obligations to asylum seekers—for example, by intercepting asylum seekers before they reach the shore or insisting that airlines check visas so that potential asylum seekers cannot land in their country. If anything, practices like these show how seriously states take their obligations around non-refoulement, since they would rather go to great lengths to avoid having asylum seekers arrive on their territory than be seen violating the principle of non-refoulement by deporting them upon their arrival.

On the other hand, obligations towards refugees and other involuntary migrants not already on their territory are more or less discretionary and not based on any clear moral or legal obligation.¹² In other words, there is no legal obligation in the 1951 Convention or elsewhere which requires states to resettle refugees or contribute to their protection. This has had two outcomes. First, because there is no obligation on the part of signatories to the 1951 Convention to fund the protection of refugees, contributions to the UNHCR or other refugee aid agencies are strictly voluntary. As a result, the refugee regime is chronically underfunded. The UNHCR is funded almost exclusively by a handful of countries, and even though their budget is large, it is still inadequate to the job that the UNHCR is supposed to do. In 2013, the UNHCR presented a needs-based budget of $5.3 billion dollars (US) and received $2.9 billion (US). In other words, it was only able to raise about 60% of what it estimated was needed (UNHCR 2014a, 26–27). As noted above, almost all of the UNHCR’S budget is from 10 donor countries in the North, with only 3% coming from the UN’s central budget; the US funds 30% of their budget (Hammerstad 2011, 252n1). This funding structure has meant that the UNHCR has to be particularly sensitive to the needs and views of the large donor states in the West, and this has had an effect on their policies and practices.¹³

The second outcome of the absence of moral and legal obligations regarding involuntary migrants is the discrepancy in “burden sharing.” This refers to the fact that countries in the Global South play a much larger role in hosting refugees than the Western democracies in the North that fund the regime; 87% of refugees are hosted in the Global South and less than 1% of the displaced are resettled in Western states.¹⁴ This is in part because Western states have actively sought to contain refugee flows outside their own regions to avoid taking on this burden. “For the most part,” writes Helton, “the relatively capable states in Europe and North America seek to contain human displacement elsewhere, particularly in Africa” (Helton 2012, 31). I return to this outcome in more detail below.

The lack of strong norms or legal obligations around the protection and support of involuntary migrants not claimi...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1 The Moral Significance of the Refugee Regime
• 2 Refugees in Contemporary Political Philosophy
• 3 Hannah Arendt and the Ontological Deprivation of Statelessness
• 4 Responsibility for the Forcibly Displaced
• Conclusion
• Bibliography
• Index