An important new book about refugeehood

by Chris Bertram on February 19, 2020

A brief plug for an important new (and affordable) book: every home should have one! David Owen has long been know for his thoughtful contribution to philosophical debates around migration, and now he has published a brilliant short book, What Do We Owe to Refugees? in the same excellent Political Theory Today series from Polity that my own book appears in. David’s book is highly readable and gives a solid introduction to the main controversy that runs through modern debates on refugeehood, namely, whether we should adopt a “humanitarian” or a “political” conception of refugees and what we owe to them.

A humanitarian conception of refugees focuses attention on them as needy persons forcibly displaced through no fault of their own. They may be fleeing persecution, or war, or natural disaster or environmental collapse, and the duties that we have to them flow from our common humanity. It is their neediness and not the specific cause of their neediness that is the most important factor. A political conception, by contrast, sees refugees as victims of a special wrong, the denial of political status, of effective citizenship through persecution by the very state whose obligation it is to include them as citizens and to guarantee and respect their rights. Refugeehood as conceived of by the political conception is an internationally-recognized political substitute for the membership that has been unjustly denied by a person’s persecutors.

As David sets out in a wonderfully-informative chapter on this history of refugeehood — did you know that the first refugiés were Huguenots escaping from Louis XIV? — both conceptions of refugeehood are present both in the history of refugees and in the political and legal documents and institutions that have structured international practice over the years. Currently, for example, the focus on persecution in the 1951 Convention and its 1967 Protocol admits most naturally of a political reading, but the practice of UNHCR, the international body that is tasked with administering refugee issues, is much broader and includes much humanitarian assistance.

The key animating idea of the book is centred on the relationship between the institution of refugeehood and the current international system, conceived of as a normative order. On the one hand we have a world that is territorially divided among sovereign states; on the other, we have a cosmopolitan commitment to the idea of human rights and those sovereign states are the primary vehicles through which human rights are (in theory) protected and realized. This international order is one that is maintained and reproduced by the collective of states themselves through their mutual recognition of one another and through their sustaining of international norms and institutions. Obviously, things often go wrong with the result that human beings are left unable to assure their basic rights on the territory of the state that is theoretically charged with protecting them. Refugeehood therefore functions as a “legitimacy repair mechanism” for the global normative order whereby those whose vital interests require crossing an international border to protect their rights are given a functional substitute membership by states other than their own, those states act “in loco civitas“. Doing so not only meets the needs of these displaced persons, but also upholds the legitimacy from which the receiving states benefit.

Whereas much of the debate around refugeehood has oscillated between the political and humanitarian paradigms, David argues that the duties picked out by “in loco civitas” vary depending upon the reasons for refugee displacement and proposes a differentiation of responses which he terms “asylum”, “sanctuary” and “refuge” that answer to whether the individual is a victim of targeted persecution, generalized violence or episodic events (such as natural disasters) respectively. I can’t do justice to the whole of David’s discussion here, but his proposal is that victims of targeted persecution need access to a state which can provide them with a robust protection of their rights and that doing so plays an expressive role in condemning the persecuting state; that sanctuary primarily requires the provision of a substitute social home and this may, allowing for considerations of fairness, be best accomplished in states with similar cultures or existing diasporas that can provide adequate social protection and opportunities; and that refuge will often be the most temporary provision of all, persisting while the cause of the immediate displacement is fixed.

David also addresses questions of “fair shares” in the context of a protection regime that is conceived of as project where states must do their bit to uphold a legitimate international order, and what the duties of states (and refugees) are when states are failing to play their part or, as now, actively thwarting the functioning of a just protection regime. He argues that the refusal of those fleeing persecution, war and other drivers of forced migration to accept the containment regimes put in place to thwart them constitutes a kind of justified global civil disobedience and resistance to an international regime that purports to be legitimate but which fails to supply the protection for human rights and needs which it officially promises.

{ 15 comments }

1

Matt 02.19.20 at 11:51 am

As someone who works and writes in this area (and has done a modest amount of practical legal work in it) I want to second Chris’s recommendation – it’s a really good and useful book. Owen’s work here is humane and reasonable, and put in an easy to understand way. It’s certainly on a short list of books I’d highly recommend on the topic, and the most generally accessible of those.

2

David Owen 02.19.20 at 1:11 pm

Thanks Chris and Matt, very much looking forward to finding out what others think of it.

3

notGoodenough 02.19.20 at 2:04 pm

Chris Bertram @ OP

Thank you for the recommendation!

In your other recent thread on deportees, I was very tempted to ask for suggested reading in order to help improve my understanding, but refrained (as it seemed a bit of an imposition).

I am very much obliged.

4

J-D 02.19.20 at 9:46 pm

On the one hand we have a world that is territorially divided among sovereign states; on the other, we have a cosmopolitan commitment to the idea of human rights and those sovereign states are the primary vehicles through which human rights are (in theory) protected and realized.

In practice, surely, sovereign states are the primary agents of human rights violations?

5

Another lurker 02.20.20 at 12:16 am

Probably this is not the right place for this, but polity books lists an ebook version, while wiley doesn’t seem to have that option…has anyone been able to find the ebook?

6

Matt 02.20.20 at 9:38 am

In practice, surely, sovereign states are the primary agents of human rights violations?

This is in some ways an empirical question and in some ways a more philosophical one. To look at the more philosophical side first: there is a case to be made that _only_ states can violate human rights – that your neighbor can kill you, or torture you, or, maybe, preventing you from voting, but that when he does this, while he is wronging you, he’s not violating your human rights as such – that those relate specifically to the relationship between an individual and those with (claimed) official authority. I have some sympathy with this view, but am not certain about it. If this view is right, then the idea that states are the primary violators of human rights is true by default.

If the idea that states (or state-like entities) are the only things that can violate human rights isn’t true, though, then the claim is empirical and, while maybe still true (states do violate human rights an awful lot!) may not obviously true, because then lots and lots of individuals violate human rights all the time – when parents prevent their daughters from getting education, or subject them to female genital mutilation, for example, or in cases of lots of “normal” crime, or when non-state actors subject gay people to abuse, harm, subordination, etc. In this case, I’m not even 100% sure how we individuate and calculate human rights abuse, but, also, on this case, states are heavily involved in protecting and limiting abuses by non-state actors, and the rise of states was an essential element in this.

7

Salem 02.20.20 at 10:48 am

In practice, surely, sovereign states are the primary agents of human rights violations?

Ex post, of course. “Government is the institution which prevents injustice other than such as it commits itself.” But that doesn’t contradict Chris’s notion.

8

Chris Bertram 02.20.20 at 5:28 pm

@Matt, I remember being quite puzzled by the view you outline in your first para there and having an unhelpful dialogue with a lawyer who took it as conceptually settled. I think I would express things thus: various wrongs that may be done to you (bodily violations for example) are things that you have a human right against. It is the duty of everyone not to do those things and the duty of the state both not to do those things and to see to it that nobody else does those things either. It strikes me as very weird to think that, for example, the various non-state parties to the Syrian civil war are conceptually incapable to violating human rights.

9

Matt 02.20.20 at 8:59 pm

Chris – yes, it’s an area where I don’t feel very certain about the right answers – and of course to some degree it doesn’t really matter what we call various wrongs done to people, so long as we try to reduce them, compensate people for them, etc. It does seem to me that there is a real distinction between wrongs done by those with actual or claimed authority (which need not be rightful), and wrongs done by others, but exactly how this maps on to the idea of human rights is something that’s unclear to me. (I talk about a related issue in relation to non-state actors and the idea of persecution in this paper , but the issues are not 100% the same, for sure. Some of the account there can be applied to the case of events in Syria in a fairly straight-forward way.)

10

J-D 02.21.20 at 9:16 am

I am aware of the definitional issue and some of its intricacies, but I was thinking of the empirical one. Isn’t it reasonable to estimate that sovereign states have been responsible for far more violent deaths than non-state agents? What other kinds of human rights violations are there where a converse position could offset that?

11

Fergus 02.21.20 at 9:24 am

@Chris: “unhelpful dialogues with lawyers who took it as conceptually settled” are, from what I can tell, a pretty standard occupational hazard for political philosophers…

More seriously the book sounds very interesting. David’s article (it was maybe a book chapter?) on in loco civitatis was very interesting when I was working on the ‘fair shares’ question for my master’s… Will be interested to read the broader discussion of resistance and ‘taking up the slack’ since sadly, as you say, it’s only with those elements that the theory starts to tell us much about the current world of widespread non-compliance and obstruction.

12

Matt 02.21.20 at 11:36 am

Isn’t it reasonable to estimate that sovereign states have been responsible for far more violent deaths than non-state agents?

Probably? I suppose part of the problem is what counts as a “sovereign state” here – here the Mongols a “sovereign state”? Was Rome? I don’t mean those as rhetorical questions – it’s really not clear to me what an answer to that would be. Even leaving aside everything before a certain date, it might still be that the answer to this is “yes”, but I’m honestly not sure myself.

What other kinds of human rights violations are there where a converse position could offset that?

I guess I’m not sure what’s being asked here. There are _lots_ of human rights violations other than killing people, of course. And lots of those are done by states, too, but if doing anything that would deprive someone of one of the rights on the UDHR or the CCPR, or the CAT, or the CRC, etc. is a human rights violation, no matter who does it, then there are lots and lots of human rights violations done by non-state actors every day.

13

Tom 02.21.20 at 3:13 pm

Reading the book’s blurb, I question I have is how is “state failure” defined. Suppose you live in a country with bad economic conditions: maybe inflation has been mismanaged, or there is too much cronyism, or simply the price of the main export commodity has been low for some time. And for the sake of argument, let’s say that you are not affected by civil wars and environmental disasters (again, going by the list in blurb). You are incredibly poor and decide to try your luck making it to Europe. Should you be treated as a refugee? I can see how the humanitarian conception may support that in some cases (or maybe not; I would have to read the book!).

Let me add that the answer to my question may not have much empirical relevance, at least in the context of Mediterennean migrants. Many of the migrants’ origin countries (e.g. Syria and Afghanistan) have been ravaged by wars and so the political conception is enough for them to qualify as refugees.

As another side comment, the debate about migrants in receiving countries very rarely seems to mention the role that such countries may have had in creating the mess that the origin countries find themselves in. To the extent that, say, the war in Iraq is partially responsible for the war in Syria (a case that I believe can be made), then even just resorting to some concept of basic trans-national justice would dictate that Syrian migrants should be treated, if not as refugees, at least with more dignity and respect than they usually are.

14

LFC 02.22.20 at 3:32 am

from the OP:
[Owen] argues that the duties picked out by “in loco civitas” vary depending upon the reasons for refugee displacement and proposes a differentiation of responses which he terms “asylum”, “sanctuary” and “refuge” that answer to whether the individual is a victim of targeted persecution, generalized violence or episodic events (such as natural disasters) respectively.

Istm it may sometimes (not always) be hard to disentangle being a victim of “generalized violence” (or “targeted persecution”) and being a victim of bad socio-economic and other (e.g. political) circumstances effectively beyond one’s control (as the comment by Tom @13 also suggests). Let’s take a hypothetical, but prob not really v. far-fetched, case of a Central American woman w.o much income (or wealth) and her young children (one a teenager, the others younger). They have left Guatemala, Honduras, Nicaragua or El Salvador (we’ll say Nicaragua for simplicity’s sake) hoping to join, say, distant or not-so-distant relatives or friends in the U.S., and are currently living in a sort of nightmarish limbo in a Mexican border town, a limbo attributable in part to the Trump admin’s illegal and inhumane “remain-in-Mexico” policy.

The teenager has been preyed on by members of a certain quasi-criminal gang who don’t like him (for whatever reason), been bullied and threatened with physical harm; the younger children have been ostracized by the gang members and their friends partly as a way of getting at their older brother. None of the children can attend school v. safely/comfortably. Then too the family’s economic circumstances are very precarious. The mother is divorced or separated from her husband and has been subjected to threats of physical or sexual violence, some of it encouraged or perpetrated by the gangs that effectively run their neighborhood.

Are they victims of “targeted persecution” or “generalized violence” or are they mainly economic migrants? All three? Do they need “asylum,” “sanctuary” or something else?

Then there’s another set of problems posed when thousands of impoverished refugees end up not on the borders of a rich country but in a relatively poor country. Specifically am thinking of the Rohingya refugees in Bangladesh. Is it likely that the Bangladesh govt/state is going to be capable of effectively incorporating them into Bangladesh anytime soon, even if it wanted to fulfill what might be its legal obligations in this respect? Or are they going to remain in refugee camps in and around Cox’s Bazaar for the foreseeable future? I’m sure there are UN and non-govt agencies providing some help, but this is not a good long-term solution. There are Palestinians who have been living for decades in refugee camps run by or assisted by UNRWA, which may do good work but this is not a solution the “global normative order” should be happy about.

Everyone knows the world is facing a very severe crisis of displacement/’refugeehood’. It’s necessary to get the conceptual and philosophical distinctions right but I don’t think we should be under any illusion that even the best set of conceptual distinctions is going to adequately capture the complexities of many of the messy and catastrophic situations that exist.

15

J-D 02.22.20 at 4:01 am

Probably? I suppose part of the problem is what counts as a “sovereign state” here – here the Mongols a “sovereign state”? Was Rome? I don’t mean those as rhetorical questions – it’s really not clear to me what an answer to that would be. Even leaving aside everything before a certain date, it might still be that the answer to this is “yes”, but I’m honestly not sure myself.

I was thinking of ‘state’ roughly in terms of Elman Service’s classification (band, tribe, chiefdom, state), in which case the Roman Empire and several Mongol Khanates clearly count as states, but I recognise that more restrictive definitions are possible and in that case the answer to the question might be different.

I guess I’m not sure what’s being asked here. There are _lots_ of human rights violations other than killing people, of course. And lots of those are done by states, too, but if doing anything that would deprive someone of one of the rights on the UDHR or the CCPR, or the CAT, or the CRC, etc. is a human rights violation, no matter who does it, then there are lots and lots of human rights violations done by non-state actors every day.

Undoubtedly, so I can imagine somebody saying, ‘Yes, it’s true that states have been responsible for causing more violent deaths than non-state actors, but this is outweighed by the greater responsibility of non-state actors for [let’s say, for example] torture and slavery’: but would that be a reasonable position in the case of the example of torture and/or slavery and, if it wouldn’t, what could be substituted for torture and/or slavery to produce a reasonable position?

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