NOT DUTIES BUT NEEDS: RETHINKING REFUGEEHOOD.

Author:Mantel, Susanne
 
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THERE IS AN ONGOING DEBATE in political philosophy about the question who is a refugee. Disagreement persists, for instance, on whether only persecuted individuals are refugees, or whether also individuals fleeing famine are included. Nevertheless, there is a consensus among most authors that refugees have a special need for protection that is not addressed by their home states: refugees are threatened and lack state protection of their most basic needs and rights, and since this lack is morally relevant, they must be distinguished from other groups of migrants. (1) However, in the ethical literature on refugees, this thought has been developed in two directions and two disparate approaches to refugeehood have been advanced.

The first approach that I have in mind is wide insofar as it gives criteria of refugeehood that are meant to cover all who ought to be protected by foreign states, even if threatened by famine, although famine could in principle be addressed without admission. (2) This view is typically inspired by Andrew Shacknove's work. (3) As I said, there is a consensus that refugees have a special need for protection. Since they do not find protection by their own government, this need gives rise to a duty to protect that falls on foreign states. The wide approach that I will discuss characterizes refugeehood by this resulting duty to protect, which may include foreign aid.

The second approach I have in mind is narrower, although its proponents aim to develop the same core idea about needs. According to this narrower approach, refugees are characterized as individuals who ought to be admitted to a foreign state, which may not apply to victims of famine. On this view, refugeehood is defined by criteria that indicate that an individual can be protected by admission and only by admission. (4)

I argue primarily against the latter, but ultimately against both approaches, insofar as both turn away from the need for protection and toward duties that arise from this need: the duty of foreign states to protect individuals and the duty to admit them to foreign territory. A third definition, one that focuses on the need for protection alone and not on the duties that arise from that need, is superior to either of the common definitions. Although this definition is popular in ordinary thought, so far it has not received much attention in the philosophical debate.

My main argument against the wide and the narrow approach is that turning to duties brings up various factors that are inadequate criteria for refugeehood. Consider duties to admit for the sake of protection. These depend on various factors external to the threatened individual, and external to the way in which he or she is threatened. Suppose we want to say that someone is a refugee when there is a prima facie case to be made for protecting her by admission rather than for protecting her without admission (by military intervention or foreign aid, for instance). However, this prima facie case for admission is often influenced by factors such as moral duties toward third parties, e.g., not to use military force, as well as by decisions of receiving states, e.g., when foreign aid is far more costly than admission. (5) By contrast, refugeehood seems to be independent of the claims of third parties, as well as of the decisions of foreign states (or of the international community). Generally, refugeehood cannot be characterized by reference to a duty since duties are always relative to capable states or collectives that may bear them. This last consideration speaks not only against defining refugeehood via duties to admit, but also against definitions based on the duty to protect or on the international community's capacity to protect. (6)

My argument relies on a protection-centered understanding of refugeehood. It puts to work the intuition that refugeehood stems from factors internal to threats and threatened individuals, such that two people who flee threats of a certain common type will be categorized alike. My argument thus employs a commonsense intuition, but it does so not merely for the sake of common sense itself. A philosophical account of refugeehood must pick out a group of migrants who are of ethical concern, and it should do so in a way that facilitates both public and political discussion. This requires exactly what common sense presupposes, namely that two people who flee threats of a common type are categorized alike. This background will be introduced in section 1. I argue that this protection-centered understanding of refugeehood must not be characterized by reference to duties to admit for the sake of protection (sections 2 and 3), nor by reference to duties to protect (section 4). Much more plausibly, a refugee is defined simply as a person whose basic needs and rights are threatened and who migrates with the aim to find protection (section 5). Finally, I address objections (section 6).

  1. THE PROTECTION-CENTERED PERSPECTIVE AND A DESIDERATUM

    Let us assume that when people's basic rights and needs are threatened in ways that are not being addressed by their home governments, there are prima facie duties of foreign states to provide protection--regardless of whether threats consist in violations of basic rights, as by persecution, or in the lack of means to fulfill basic needs, as in case of famine. (7) The difference between persecution and famine may become relevant later when defining refugeehood, but I assume that it does not matter for the general duty to protect. (8) In an international system in which the duty to protect the basic needs and rights of certain individuals is assigned via citizenship to certain governments, foreign governments need to provide a substitute when these duties are not met by the state of nationality.

    On the protection-centered view, refugeehood is ultimately grounded in the need for basic protection by a foreign government in this broad sense. (9) This view can be contrasted with the political conception of refugeehood defended by Matthew Price, in which refugeehood is grounded in the expression of condemnation for persecuting governments, as well as with views according to which duties toward refugees are merely negative and compensatory. (10) I take the protection-centered view for granted and explore its consequences: if foreign states ought to help protect the basic rights and needs of the unprotected, do resulting duties, or the underlying need for protection, define refugeehood?

    When speaking of admission, what I have in mind is primarily admission to territory and to institutions delivering basic protection such as basic health care. This is the form of admission required to fulfill basic needs and rights when protection on foreign ground is not an option. However, it seems that being excluded from full membership for too long constitutes itself a violation of rights, and I assume that admission to full citizenship is mandatory for those who have been admitted to a territory for a certain time (and who foreseeably require permanent admission to that territory).

    I hope to simplify matters without oversimplifying them by focusing on migrants at the borders of rights-protecting states. (11) The question then is, who of them should count as a refugee, and why? One may hold that having reached an international frontier is an independent necessary condition on refugeehood (as laid down in the 1951 Convention Relating to the Status of Refugees, henceforth "Refugee Convention"), and I want to leave this question to the side for now. My view is that the most convincing strategy is to examine, first, how refugeehood is connected to needs and duties, and then to see whether this understanding of refugeehood implies that a migrant's location at a border is of relevance or not. (12)

    A central assumption in my argument is that it is a desideratum for any definition of refugeehood that the definition help categorize different individuals consistently as refugees or non-refugees based on the threats they face, where these are described in terms such as "persecution," "war," "famine," "chaos," or "inhabitableness or loss of land" (e.g., due to rise of sea level).

    The Desideratum: It is possible to list, in plausible, sufficiently descriptive terms, the types of threats that determine refugeehood, such that two individuals who face threats of a common type at home and are fleeing from these are categorized alike. The Desideratum is neutral regarding the scope of the list. The thesis is neither wedded to wide definitions nor to narrow ones. Many different lists would fulfill the desideratum, whether they include famine and war or merely certain forms of persecution, as laid out in the Refugee Convention. (13)

    The Desideratum can be defended by reference to common sense, to moral philosophy, and to politics. It may be a desideratum for legal contexts as well, but my focus is mainly on the philosophical and political domain.

    Common sense: Intuitively, migrants fleeing the same kinds of threats are categorized alike, no matter where they come from. Threats to basic rights or needs consist in phenomena described by non-gerrymandered descriptive criteria such as "persecution" or "hunger." This is what ordinary people suspect and it is expressed by The Desideratum. Furthermore, this idea seems to have tacit consensus among authors who participate in the debate about refugeehood (although it will turn out that their duty-based approaches are actually ill suited to accommodate this intuition).

    Moral philosophy: From the perspective of morality, conformity to common sense is welcome, but it is not of primary concern. Philosophical accounts are not merely meant to report the assumptions of ordinary people but to fulfill certain purposes within given debates. A philosophical account of refugeehood has the primary purpose of identifying migrants who merit special moral concern that arises from the threats they...

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