Moral Obligations To Refugees
Theory, Practice & Aspiration
By Professor Serena Parekh (Northeastern University)
Jan 6, 2016 Picture: CAFOD, Ben White/Flickr
This article is part of The Critique’s And Who Is My Neighbour? Exclusive
To start, its important to note that many people explicitly or implicitly deny that we have moral obligations to needy non-citizens like refugees. For many, the state’s obligations are entirely towards its own citizens, ensuring their safety, sovereignty, and cultural integrity. If they acknowledge moral obligations to refugees, they are what philosophers call Good Samaritan obligations: obligations to help non-citizens only when the need is great and we can do so at a low cost to ourselves. On this view, we do have obligations to help the most needy refugees, but only to the extent that we do not have to sacrifice anything of value – either by diluting our culture through accepting large numbers of foreigners or by funding others to do so when such funds could be used domestically. But pictures like the one of Aylan Kurdi have nudged many past this limited view of our obligations to refugees. But before looking at how we should in fact think of our moral obligations, let’s take a step back and examine how we arrived at the current consensus around refugee aid.
Moral Obligations to Refugees in Theory
For many, the Second World War demonstrated clearly that when a person lost their citizenship it became almost impossible to protect their human rights. As a result, countries around the world realized that something needed to be done to help future refugees. There was a moral consensus that states have a responsibility to come to the aid of those fleeing the persecution of their states. From this strong moral consensus the United Nations Convention Relating to the Status of Refugees (1951) was born, and it can be understood as an attempt to put our sense of moral responsibility into international law. At the same moment, an international body, the United Nations High Commissioner for Refugees (or UNHCR), was created to oversee the implementation of the convention and was put in charge of both refugee protection around the world as well as securing one of the three “durable solutions” for refugees (voluntary repatriation, local integration, or resettlement in a third country).
What moral obligations were agreed on in this document? The Refugee Convention contains two sets of normative obligations for states: one set of obligations relates to what states are required to do when asylum seekers arrive on their territory, while the other set has to do with state obligations towards refugees who have fled their own countries and are currently living in refugee camps or informal settlements. In other words, Europe has, for example, different normative obligations to Syrian asylum seekers who arrive at their borders than they do to the millions other Syrian refugees who remain in camps in Turkey, Lebanon, and Jordan. The strongest moral and legal norm relates to people seeking asylum. This is the principle of non-refoulement, which holds that a state cannot deport 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; if it is determined that their fear is justified, they must be allowed to stay and gain membership in the society. Over time, a strong normative and legal framework has developed to support this norm, and most states, at least in principle, acknowledge its legitimacy. It is for this reason that Greece, Spain, Italy and the US did not summarily deport the large numbers of asylum seekers who found their way to these countries in the past 2 years.
On the other hand, states have minimal obligations to refugees in refugee camps. It is especially important to note that there is no moral or legal obligation to resettle refugees or to fund aid to refugees through the UNHCR. Any aid states give to refugees abroad, either through financial contributions or by agreeing to resettle them, is considered a matter of generosity and good will, rather than the fulfillment of a moral or legal norm. States consider aid to refugees and the UNHCR to be more or less discretionary. While the Refugee Convention does contain a number of obligations that relate to states that host refugees – such as allowing freedom of movement (Article 26), access to courts (Article 16), treatment at the same level as or better than other aliens (Article 7), access to employment (Article 17), access to elementary education (Article 22) – these obligations are routinely violated with no repercussions.
What is clear is that there is an asymmetry between these two sets of obligations: the former set (obligations towards asylum seekers) is much stronger and more widely recognized than the latter (obligations towards refugees in camps). This asymmetry has had several outcomes. First, because there is no obligation on the part of signatories to the Refugee Convention to fund the protection of refugees and contributions to refugee protection are strictly voluntary, the UNHCR has almost always been under funded. Concerning the crisis in Syria, the UNHCR has received 46% of what it has asked for, forcing it to make drastic cuts in the amount of aid it has been able to provide refugees.
What this has meant is that refugee camps that were supposed to be places of, well, refuge, places where an individual or family fleeing war or persecution could find safety and security, are no longer able to do that. Indeed, the situation is so bad in Jordan that people are choosing to return home to Syria rather than remain there. Let me pause on this fact for a moment. We’ve heard a lot now about the atrocities occurring in Syria – fear of random violence, of death, destruction, and chaos that makes up the fabric of daily life. Refugee are now choosing that over life in what are supposed to be safe havens. Civil war is now a preferable option to life in refugee camps.
“The situation is so bad in Jordan that people are choosing to return home to Syria rather than remain there (…) Civil war is now a preferable option to life in refugee camps”
The second outcome of the absence of moral and legal obligations to refugees abroad 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 that largely fund the regime; 87% of refugees are hosted in the Global South and less than 1% of the displaced are resettled in Western states. This of course is true in the current crisis as well. Of the 4 million Syrian refugees, about 650,000 have sought asylum in the West, but the other 3.4 million refugees remain in the 5 countries that surround Syria; millions more remain trapped within Syria. The debate in Western media and among politicians is whether or not we should resettle 2.5% or 3-3.5% of Syrian refugees – a number, in other words, which doesn’t even come close to addressing the problem or helping the vast majority of refugees, and fails to even question whether it is morally acceptable for some of the poorest states in the world to bear the brunt of hosting refugee populations.
Finally, since there is no accepted moral or legal obligation to resettle refugees, and the vast majority of refugees remain in protracted refugee situations in the Global South, long-term encampment has essentially become the de facto fourth solution to global refugee crises. 2/3 of refugees live in protracted refugee situations, on average for 17 years, often much longer, and about 40% of refugees live in UN run camps where, because they are forbidden either to work or the freedom of movement to seek work elsewhere, remain entirely dependent on international aid for survival during this long period of time.
This situation regarding global displacement is the direct outcome of the asymmetry in obligations: Northern states have few obligations or incentives to help refugees not on their territory, but because of the strength of the principle of non-refoulement they have strong incentives to prevent refugees from arriving on their territory and keep refugee populations contained in the Global South [See Gibney’s comments on the problem of refugee asylum policies]. The result is that Western states have favored policies that contain refugee flows outside their own regions. In short, though states acknowledge that refugees are different than other kinds of migrants since they make a moral claim on us for help, they nonetheless are anxious to prevent refugee crises from becoming their problem.
Moral Obligations In Practice
We can see this clearly when we look at how the three widely accepted solutions for refugees – voluntary repatriation to their country of origin, local integration in the country of residence, and resettlement in a third country — have been implemented in practice. In 2014, of the 59.5 million people who were forcibly displaced from their home, 126,000 people were able to return to their home countries and 105,000 were resettled (data on local integration is not available). What, then, happens to the other more than 59.2 million people who are outside their home states and do not qualify for protection from any other state?
The answer is that they remain in the Global South, in refugee camps or in informal settlements in urban centers, aided by a largely underfunded UNHCR [See the Qasmiyehs’ discussion of the Baddawi refugee camp]. In other words, the West has largely succeeded in containing and confining refugee populations in the Global South. This is why the current crisis in Europe is often discussed as a crisis for Europe – a crisis of a failure of this policy – and only secondarily a humanitarian crisis for the refugees themselves. This is why it is not surprising that in the EU’s most recent talks with Turkey, the question was largely how Turkey has to do a better job of containing Syrian refugees and making it harder for them to enjoy their well-established human right to seek asylum, and not how to better protect the rights and dignity of refugees.
Of course the European Union is not the only body engaged in such practices. The US experienced its own refugee crisis last summer when thousands of refugee children from Central America crossed into the US. Anxious to avoid this again, rather than actually aiding people fleeing almost unspeakable brutality and violence, the US has put into place its own policies of containment through the Mexican government. A recent piece in the NY Times revealed that the US has been giving the Mexican government tens of millions of dollars to intercept asylum seekers coming from Central America through Mexico to try to claim asylum in the US. The Mexican government has done this by raiding migrant shelters, train stations and other safe havens and forcibly return people to places where their lives are in danger. This of course is a gross violation of the spirit if not the letter of the norm of non-refoulement [See Mendoza & Silverman for a discussion of the U.S immigration response].
Aspiration: What Should Our Moral Obligations to Refugees Be?
If we step away from the political struggle to avoid refugees that states have been engaging in, we can ask: given the realities of global displacement in the 21st century, what should our moral obligations be? First, let me briefly remind you what this reality is: a population roughly the size of Italy – 59.5 million people – lives outside the nation-state system. When a person finds herself displaced from her home country – whether due to war, political persecution, gang violence, environmental destruction, etc., – she will on average remain displaced for close to a generation. Of the forcibly displaced who are considered to be “refugees” by the UN, less than 1% will ever be resettled permanently in a new country.
If we do have moral obligations to refugees, as most people agree that we do, its crucial that we move away from thinking of our obligations solely in terms of resettlement and take seriously the moral obligations we have to the forcibly displaced while they are between homes, that is, between the initial displacement from their home states and either returning to or finding a new one. This is the space where the vast majority of displaced people will spend their lives. We ought to morally evaluate the use of camps as spaces of containment and control. That is, while refugee camps may be justifiable in the immediate aftermath of war or crisis, they have been used increasingly as a way of keeping the displaced far from countries where they could claim asylum; they have been used not merely for short periods to respond to emergencies but for prolonged periods of time – decades, sometimes generations. They have essentially become the de facto solution to the problem of unwanted and superfluous people in the world.
“While refugee camps may be justifiable in the immediate aftermath of war or crisis, they have been used increasingly as a way of keeping the displaced far from countries where they could claim asylum”
Taking seriously the use of encampment as a way of containing refugees is of course distinct from questions about how many refugees a country ought to resettle or admit for asylum. While I certainly agree with philosophers like Joseph Carens and others who argue that we ought to think of resettlement as a duty and not merely as an act of generosity, I think that it is crucial that we not limit our ethical thinking around refugees to questions of resettlement. The vast majority of the displaced will spend their lives in these spaces of containment and we can and ought to morally evaluate this in between period. The reason that the ethical treatment of the displaced during their displacement is often ignored is because displacement is seen as exceptional and temporary. Yet displacement is so much a fact of every day political life that far from being exceptional, it ought to be seen as a regular part of global politics. As mentioned earlier, the norm for displacement is now 17 years or close to one generation. The norm of displacement, far from being temporary, ought to be assumed to be long-term and enduring. The treatment of people during displacement, because it is regular and enduring, not exceptional and temporary, ought to be subject to rigorous ethical consideration. Living outside of a nation-state is no longer an anomaly that can be brushed aside as exceptional to contemporary political life; it has in many ways become a standard way of living for millions of people, and will increasingly be so in the future. We need only think of the camps that immediately arose in Austria, Hungry and “transit centers” proposed in Turkey, to see the extent that camps remain our default way of treating the displaced.
“Living outside of a nation-state is no longer an anomaly that can be brushed aside as exceptional to contemporary political life; it has in many ways become a standard way of living for millions of people, and will increasingly be so in the future”.
On What Ground?
One of the most challenging philosophical questions is how to ground these moral obligations. Traditionally, there are a few arguments that theorists appeal to. If a state is the cause of the refugee situation, it is often easier to persuade people that they have a moral obligation to aid the refugees. After the Vietnam War, the US resettled many Vietnamese, Hmong, and other refugees on this basis. Yet this argument did not have the same resonance after the US invasion of Afghanistan and Iraq. These wars too produced many refugees but the refugees they produced were considered too threatening – potential terrorists – to obligate the US to resettle large numbers. A second ground, as mentioned at the beginning of this article, is the principle of the Good Samaritan – we have an obligation to help when the need is high and the cost of helping is low. This principle at its core is hard to deny. Yet this doesn’t really apply to the contemporary situation of forced displacement because given the sheer numbers of people who are displaced, the cost of helping is, by its very nature, high. It is hard to convince people that a state should sacrifice in some way to help foreign refugees when such funds could be used internally. People are even more defensive when it comes to the social, political and cultural costs of resettling refugees.
On the other hand, there have been a number of philosophical defenses of the right of states to restrict the resettlement of refugees. Michael Walzer famously argued that because of the importance of “communities of character,” states have a right to limit how many refugees can enter their states in order to preserve their cultural distinctiveness. Christopher Wellman argued more recently that the right of freedom of association – the right of citizens within a state to decide whom it wants to associate with and whom it does not – trumps any claims that refugees might have to resettlement. Though both authors believe that we do have some obligations to aid refugees, these obligations are limited in scope. The intuitive appeal of both these arguments is clear. Many people, implicitly or explicitly, believe that states ought to take care of their own citizens first and foremost, and should aid non-citizens only in limited ways, if at all. The result of this way of thinking is that those who do not have a state to act in their interests remain unaccounted for and unprotected by any state.
I’d like to suggest that we think about our moral obligations to refugees differently. As noted above, I think our moral obligations to refugees extend beyond resettlement. I argued that we ought to take seriously our moral obligations to the displaced during their displacement and reject policies of containment and confinement to camps that prevent refugees from accessing asylum. How can such obligations be grounded?
It is helpful to think about many of the harms associated with the treatment of the forcibly displaced as structural injustices. The way that Iris Young describes it, structural injustices are not the result of deliberate harm or explicitly unjust policies, but the unintentional outcome of the actions of different agents each working for her own morally acceptable ends. It refers to situations in which something is morally wrong, but there is no clear causal explanation or clear intention on someone’s behalf to cause the harm.
This, I think, describes some of the worst harms associated with displacement. That the displaced are often forced to live in squalid camps for decades is clearly a moral injustice; yet this injustice is neither the result of the deliberate policies of a given state intended to harm the displaced nor the result of ill intentions on the part of international agencies or others. It arises as a consequence of various sovereign states acting according to their interests, and encouraging international organizations like the UNHCR to do what seems best for the displaced, namely keeping them in camps close to their countries of origin, for their own safety and for the sake of facilitating repatriation. No state is doing anything illegal, or, for the most part, even immoral, since they are acting to protect their citizens and the interests of their states; in principle at least, they are even acting in the interest of the displaced themselves. States are making policies according to a widely accepted moral norm, namely that states have a sovereign right to control admission to their state on whatever grounds they think fit. Nonetheless these processes create structural barriers that prevent the displaced from seeking asylum and accessing resources, such as security, education and health care and ultimately a permanent solution. Seeing the injustices around the refugee regime as structural allows us to avoid the question of moral culpability and focus instead on remedying the injustice.
If we understand the harms involved in the global refugee regime in this way, it becomes easier to see why a new approach to responsibility is called for. Because warehousing and other injustices in the global refugee regime are structural, and reproduced through the morally acceptable actions of different actors, pinpointing responsibility is not obvious. On what grounds can we say that some entity, such as Western states, are responsible for rectifying this structural injustice?
I want to suggest, again following Iris Young, that we have a collective, political responsibility to reject policies and practices of containment as unjust and unacceptable and to work with other states to come up with comprehensive strategies for dealing ethically with the displaced. Political responsibility arises when actions are taken in our name, when we contribute through financial or political support, or we engage in practices that uphold a particular injustice. Western states certainly contribute politically and financially by upholding various policies that support practices of containment and confinement. Responsibility here derives from our interdependence in global processes of cooperation and competition in which we seek benefits and to realize our own aims and projects. So though we are not guilty or liable in a legal sense for an unjust action or moral harm, our co-imbrication means that we must take responsibility for remedying the injustices that arise as outcomes of our actions. Responsibility for Young is derived not from living under the same constitution, but from participating in the diverse institutional processes that produce structural injustice.
In other words, though Western states may not be guilty for causing mass displacement, or intentionally placing millions of people for years on end in camps, we are nonetheless responsible for this outcome and have a political responsibility to redress it because of our participation in this global system. For Young, this responsibility is always a shared responsibility that can only be discharged through collective action, that is, through working in conjunction with other states and not just through unilateral policy. Responsibility in this sense – responsibility to comprehensively reform the global refugee regime to make it more just, both for the displaced themselves and for the poorest countries that host the majority of displaced people – is a moral obligation that we ought to take more seriously.
Our responsibility is linked to the benefits we receive from the policies that contain refugee flows far from Western shores. How precisely do we benefit? The most obvious way is that we do not have to host huge numbers of refugees or adjudicate their asylum claims. For the most part, we enjoy the luxury of being able to resettle refugees at our discretion, from countries we choose, based on criteria of our own deciding. Refugees are not forced on us the way they are in Jordan, Pakistan or Kenya, to name a few countries that host large refugee populations. The current migration crisis in Europe shows how much we’ve taken this benefit for granted. That Europe must deal with several hundred thousand refugees is considered a crisis of historic proportions; yet this is only a small percentage of the total number of refugees other countries – Lebanon, Jordan, and Turkey in particular – must deal with. That shouldering this relatively small percentage of refugees is seen as such a burden, politically, financially, and culturally, shows the extent of our interest in avoiding situations like this in the future.
Put more abstractly, we get to enjoy sovereignty, the belief that we can make decisions that only take into account the interests of fellow citizens and can legitimately exclude needy foreigners from the scope of our moral consideration. If we choose to resettle refugees, we are generous; if we don’t, it’s merely a unilateral decision that cannot be subject to moral criticism or legal scrutiny.
Finally, not all the injustices associated with practices of containment and confinement are structural in nature; some are active harms. Even if one were to reject the idea that we have positive obligations to help people in need, most would accept the idea that we are not permitted to actively harm others. I want to suggest that at least some of the harms associated with our current treatment of refugees constitute active harms. Take the US policy discussed above, the policy that pays the government of Mexico large sums of money to intercept asylum seekers fleeing brutal violence in Central America, rather than using the money to, for example, fund asylum reception programs in the US. Here the US is playing an active role in preventing desperately needy people from accessing the basic right of seeking asylum. In so doing, in violating their human rights in this way, the US is actively harming these would-be asylum seekers. Morally speaking, such policies are indefensible, however politically popular or economically expedient.
This of course does not resolve the philosophical debate over the ground of these moral obligations, or even begin to address either the economic debate over how we would fund for these obligations, or the political debate over how we would convince fellow citizens to take on the challenge of helping refugees. But I think it would be an achievement if we merely acknowledged that our responsibilities to refugees are not exhausted through resettlement and that we have moral obligations to consider the treatment of the displaced at all stages of their displacement.
To connect my claims with the recent refugee crisis in Europe, we can say that on my view the moral obligations of, say, the United States, to Syrian refugees is not exhausted by resettling 10,000 refugees, even though this may seem like a large number to some. We must continue to ask: and what happens to the other close to 4 million people from Syria who have been displaced by the war? Under what conditions will they be forced to live? Even if we are not willing to resettle more refugees, we are still obliged to ask this question, and the answer to it may require that we fund more fully the humanitarian response, lobby other countries to resettle more refugees, come up with temporarily legal protection statuses or other temporary measures in surrounding countries that actually protect the dignity and rights of refugees. We must be concerned with our ethical obligations to the millions of people who will never be resettled in the West and will spend decades living in refugee camps that are supported, at least in part, by the policies of our states that aim to contain refugees far from our borders. We ought to challenge states to work towards building a more just refugee regime, one that takes seriously the full human rights of the displaced.
Footnotes & Reference
 The Convention “recommends,” but does not obligate states to, “continue to receive refugees in their territories and that they act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement.” (Recommendation D). For the full text of the Convention, see http://www.unhcr.org/3b66c2aa10.html.
 “Catastrophic Moral Failure as Rich Countries Leave Millions of Refugees to Cruel and Uncertain Fates.” Amnesty International. October 12, 2015. https://www.amnesty.org/en/latest/news/2015/10/catastrophic-moral-failure-as-millions-of-refugees-left-to-cruel-and-uncertain-fates/
 “Why More Syrian Refugees Are Leaving Jordan than Arriving.” PBS Newshour, October 12, 2015. http://www.pbs.org/newshour/bb/syrian-refugees-leaving-jordan-arriving/
 Katie Orlinsky, “The Refugees at Our Door,” New York Times, October 10, 2015. http://www.nytimes.com/2015/10/11/opinion/sunday/the-refugees-at-our-door.html. “Beginning in July 2014, Mexico redirected 300 to 600 immigration agents to its southernmost states, and conducted over 20,000 raids in 2014 on the freight trains migrants ride on top of, and the bus stations, hotels and highways where migrants travel. In a sharp departure from the past few years, in the first seven months of fiscal 2015, Mexico apprehended more Central Americans — 92,889 — than the 70,448 apprehended by the United States. This year, Mexico is expected to apprehend 70 percent more Central Americans than in 2014, while United States apprehensions are projected to be cut by about half, according to a Migration Policy Institute study last month… Mexico has been particularly zealous in beating back children traveling alone. In the first seven months of this year, Mexico had already apprehended 18,310 minors, up nearly a third over the same period a year ago.”
 “Resettlement: A New Beginning in a Third Country.” United Nations High Commissioner for Refugees.” “Of the 14.4 million refugees of concern to UNHCR around the world, less than one per cent is submitted for resettlement.” http://www.unhcr.org/pages/4a16b1676.html (accessed October 2015).
 Joseph Carens, The Ethics of Immigration. Oxford: Oxford University Press, 2015.
 Michael Walzer, Spheres of Justice. New York: Basic Books, 1984.
 Wellman, Christopher Heath. “Immigration and Freedom of Association.” Ethics 119 (October 2008): 109-141.
 Iris Young, Responsibility for Justice. Oxford: Oxford University Press, 2013