Liberal Democratic States & The Problem of The Refugee

Why do liberal democratic states maintain a commitment to the institution of asylum?

By Professor Matthew Gibney (Oxford University)

Jan 6, 2016          Picture: CAFOD/Flickr

This article is part of The Critique’s And Who Is My Neighbour? Exclusive

In October 2014, after a summer that witnessed rising numbers of Syrian and African forced migrants attempting to cross the Mediterranean in search of asylum in Europe, the British government announced that it would no longer help fund search and rescue missions to prevent migrant drownings at sea. This led to an immediate outcry amongst human rights and refugee advocates who attacked what they saw as a heartless change of policy that would lead to many more deaths. On the contrary, the government responded, its new policy had the best interests of forced migrants at heart. It was, officials argued, search and rescue missions that most threatened the lives of asylum seekers because they acted as a “pull factor” which encouraged people “to make dangerous crossings in the expectation of rescue”.

For anyone who has followed the British responses to refugees during the last decade, the government’s claim that it was simply concerned for the welfare of asylum seekers was hard to credit. Curtailing rescue missions seemed more consistent with ongoing attempts to reduce the number of asylum seekers arriving at UK borders to claim protection by fair means or foul. Over the last three decades, a barrage of measures, including visa regimes, carrier sanctions, and interdiction at sea, have been used to prevent the arrival of refugees from places like Bosnia, Iraq, Afghanistan and Syria. The British government has not been alone in this regard. Most of the other Western countries have implemented similar restrictive measures, effectively ensuring that the vast majority of the world’s refugees remain cloistered in poorer Southern countries.

Yet for all this evident hostility to asylum seekers, no western state publicly rejects the institution of asylum altogether or professes to be indifferent to the suffering of refugees. On the contrary, the UKBA website lauds Britain’s ‘proud tradition’ of offering asylum for those who need it. Nor is Britain alone. The US, Australia, and Canada all claim to have similar admirable histories. Their claims are not entirely without substance. As restrictive measures have developed across Europe and North America, the legal grounds on which individuals can claim asylum have expanded significantly. Far from confining themselves simply to the 1951 Convention on Refugees, western countries now accept a range of human rights grounds as a basis for asylum, including the threat of torture and inhuman and degrading treatment and risk of death. Moreover, EU countries granted refuge (or similar protection) to almost 180,000 people in 2014 alone. Even Australia, surely the cynosure for asylum restrictive practices, granted around 20,000 refugee and humanitarian visas in 2013/14. What needs to be explained is why, in the midst of antipathy towards asylum seekers, the institution of asylum has not only survived, but expanded.

Carl Osmond/Flickr
Carl Osmond/Flickr

One possible answer is that the continued existence of asylum helps affirm the legitimacy of immigration controls. Fundamentally, asylum works as an exception – founded on conditions of necessity – to the normal rule that states have the right to decide who can enter and reside in their territory. As an exception, asylum supports the general rule of state discretion. Border controls are intuitively difficult to justify in a world of egregious inequalities between states, where one’s state of birth is likely to determine whether one lives to be 85 (Monaco’s average life expectancy) or 47 (Sierra Leone’s). Justification is harder still because the territorial boundaries of states are typically arbitrary, artefacts of power rather than right [See Abizadeh’s essay on the problems with the current system of border control here]. The provision of asylum for those who would face death or persecution takes the edge off these harsh realities, and so helps affirm the legitimacy of a bounded world. In this view, the institution of asylum exists not to limit the prerogatives of states, but to validate them.

A somewhat different explanation for asylum’s resilience is that it reinforces the state as community. Contemporary states do not portray themselves simply as random collections of people sharing a legal status, but as communities of value, whose members share some common principles that provide a reason for them living together. The construction of the state as a community facilitates effective rule and makes the division of the world’s population into states appear less arbitrary. One obvious way of affirming such collective values is through exclusion. For example, the practice of deportation illustrates that certain non-citizens are not worthy of residence or membership in the state because, unlike “honest”, “hard-working” nationals, they are ‘fraudsters’, or ‘takers’ or lack the requisite common values. But the significance of state membership can be affirmed equally well through inclusion. By offering asylum, a state can fashion a vision of its citizens as ‘generous’, ‘rights-respecting’, or ‘sympathetic’ thereby (re)affirming the idea of a distinct national community. Once again, asylum is less about protecting the vulnerable than bolstering a bordered world.

“The institution of asylum exists not to limit the prerogatives of states but to validate them”

A third reason is simply that these states have an interest in being seen to be doing at least something to address the international problem of refugees. On a large scale, refugee movements can be sources of regional and international instability. Asylum is a way of mitigating such adverse consequences by reintegrating people back in to the state system. At the moment, most Western states take only a tiny fraction of the world’s refugees, leaving states in the global South to host the bulk  [See the Qasmiyes for a discussion of how Mediterraneans are supporting refugees]. This is a distribution Western states are rather obviously keen to maintain. Yet in order to do so they need to demonstrate to Southern states taking a disproportionate share that they are not (entirely) shirking their international responsibility to protect refugees. Western states continue to offer asylum, then, to add a veneer of legitimacy to the current inequitable order.

Each of these explanations helps explain why states might need asylum even if they don’t want asylum seekers. But there is another explanation for the current responses of western states, one that takes values seriously. This focuses on the fact that the states we are discussing are liberal democratic states.

Liberal democratic states are simultaneously legitimised through the values of liberalism (with its respect for the individual as the bearer of human rights) and democracy (with its animating ideal of collective self-rule). These values tend to pull in quite different directions on the issue of asylum. On the one hand, respect for human rights demands the provision of asylum by the state, for if there are any human rights at all, the right to asylum (which ensures that individuals can meet their basic security needs) is surely one of them. This obligation has a long history, tracing its roots at least back to the early modern theorists of international law, like Grotius, Pufendorf and Vattel, who believed that as the world was originally given to humankind in common, territorial states could legitimately divide the globe between them only if some arrangement was made to admit people, like the exile and the refugee, in dire need of a place to dwell. Contemporary political philosophers are also united in their belief that states have a duty to provide asylum to refugees, even though they differ on the question of whether individual’s have a moral right to international freedom of movement [See Lamey & Blake for a primer on immigration philosophy].

On the other hand, acting on this duty is always potentially controversial in democratic political systems, where the demos (electorate) are likely to judge the entrance of significant numbers of non-citizens in need as costly to their own interests (for example, in terms of the job market, housing, and public services) and in tension with their own vision for society. This is particularly true when political entrepreneurs (and sections of the media) whip up grievances and racist anxieties against newcomers. In the UK, for example, a number of widely-read tabloid newspapers, like the Daily Express and the Daily Mail, regularly paint a picture of asylum seekers as simply bogus economic migrants coming to steal the jobs of citizens or as wanting to freeload on the welfare state (the newspapers concerned cannot really decide which!) [See Oberman’s defense of economic migrants here]. Even the British Prime Minister, has recently described asylum seekers congregating in Calais France wishing to enter the UK as a “swarm” and, in so doing, reduced these men, women and children in desperate need to the status of pests.

IFRC, Thomas Andre Syvertsen/Flickr
IFRC, Thomas Andre Syvertsen/Flickr

But this tension is also present at the level of value in the claim that political communities have a (qualified) right to democratic autonomy: an entitlement to make decisions over matters like entrance policy which profoundly affect their character, stability, and fundamental interests over time. As Michael Walzer has argued:

“Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically ongoing associations of men and women with some special commitment to one another and some special sense of their common life.” [1]

The conflict between these values underlies the schizophrenic response to refugees currently evident across western states, where the importance of the principle of asylum is not denied, but the costs of respecting it are resented by the public and often evaded by governments. Moreover, this is a conflict that is built into the institutions of our societies. For example, the judiciary can find itself as the defender of asylum seekers’ human rights because their role is to interpret domestic and international human rights law. On the other hand, the politicians and governments who emerge in a system of electoral democracy, unsurprisingly prioritise the concerns and interests of voters (rather than refugees and other non-citizens).

Is this conflict and the schizophrenic response it generates inevitable? Some argue that it is not. They point to the role that cynical politicians and irresponsible media sources play in whipping up public hostility to refugees and exaggerating their likely adverse impacts upon society. The optimists holding this view take heart from recent events in Germany where, under the leadership of Angela Merkel, hundreds of thousands of Syrian refugees have recently been welcomed. While there has been some opposition to these arrivals, cheering crowds at train stations greeting incoming refugees have been at least as common. If only other European leaders would follow Merkel’s lead…

The problem is that it is probably naive to think that Germany’s welcoming attitude will last. Similar inclusive responses have been on display in the past, such as with the US public’s initial response to Cuban refugees during the Mariel boat-lift in 1980 and Europe’s embrace of Kosovan Albanians in 1999. In each case, the public’s humanitarian enthusiasm turned quite quickly into “humanitarian fatigue” and, sometimes, even outright resentment. While there is no doubt that the media and some politicians can contribute to a more pleasant (or less toxic) environment for the acceptance of refugees, public and political hostility is likely eventually to emerge as long as large numbers of refugees keep arriving in need of protection. Ultimately, claims to asylum will make heavy demands on democratic communities, and these communities (or at least powerful sections within them) are likely to want to resist these claims.

This leaves us with a question: how do we reconcile, at the level of principle, the moral claims of non-citizens in desperate need of a new state with a meaningful democratic politics, which demands some degree of closure and a privileging of the claims of citizens over foreigners? Some scholars and observers have attempted to work on human rights side of this conflict (the supply-side, if you will) and argue that our obligations to forced migrants must be conceptualised in a way that recognises the limits to asylum in Western countries. Matthew Price [2] and David Goodhardt [3], for example, have suggested that duties of asylum are owed only to Geneva Convention refugees, that is, people escaping individual persecution and not to individuals fleeing war or economic crisis. The success of this approach depends on how well its proponents are able to establish a convincing moral basis for limiting asylum responsibilities merely to Convention refugees. In my view, they fail because the human rights violations experienced by those forced migrants of war or economic catastrophe are as often severe, life-endangering and in need of immediate address as those associated with flight from individual persecution.

A different way through this impasse may be to rethink what democracy (the demand side) requires normatively. In recent work, Joseph Carens has argued that the principles that underpin democratic states, including equal respect, equal opportunity, and the requirement that exclusion be justified, commit us morally to creating a world where individuals possess a right of free international movement [4]. In such a world, there would be little need for asylum policies because people could move to escape persecution, poverty or human rights violations. This idea that democratic principles constrain the democratic community’s right to exclude is ingenious. But there is something unsettling–indeed paradoxical–about a position that uses democratic principles as the justification for eliminating the right of the demos to make choices on entrance policy, not least because of the dramatic ways that immigration can reshape societies.

Another approach, recently put forward by Arash Azibedeh, works with the grain of democratic choice [5]. Azibedeh argues that we need to rethink just who composes the demos whose wishes need to be respected in matters of admission [See a short version of this argument here]. Because, Azibedeh argues, the core of democratic legitimacy lies in the principle that those subject to coercive laws should be able to participate in their making, everyone who is coerced by a state’s immigration laws—aspiring migrants forced back from the borders as well as citizens concerned about maintaining their way of life—should be able to vote on the determination of such laws. Expanding the demos in this way would be likely to result in more open immigration practices because laws would now bear the impress not only of the views of current citizens but also of the wishes of aspiring migrants.

No one could claim that philosophers and political theorists have yet hit upon a compelling formula for how to reconcile the liberal democratic tension as it emerges in the face of the claims of refugees or immigrants more generally. But they have certainly begun to address this tension with more vigour, urgency and originality than ever before. Moreover, the huge impact of the Syrian crisis on awareness of refugees will ensure that this remains a key issue in the years ahead. In the meantime, however, the current paradoxical response to refugees will remain: states will continue to embrace asylum but spurn the asylum seeker.

Footnotes & References

[1] Michael Walzer, Spheres of Justice, Basic Books, 1983

[2] Matthew Price, Rethinking Asylum, Cambridge University Press, 2009.

[3] David Goodhardt, “Duel: Is our definition of a refugee too wide?”, Prospect, November 2015.

[4] Joseph H. Carens, The Ethics of Immigration, Oxford University Press, 2013.

[5] Arash Abizadeh. “Democratic Theory and Border Coercion No Right to Unilaterally Control Your Own Borders.” Political theory 36.1, 2008, pp. 37-65.

Matthew Gibney
Matthew Gibney
Matthew J Gibney is Elizabeth Colson Professor of Politics and Forced Migration at the Refugee Studies Centre, University of Oxford, and Fellow of Linacre College, Oxford. He is a political scientist who has written widely on issues relating to refugees, migration control and citizenship from the perspectives of normative political theory and comparative politics.
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