Philosophy & The Refugee Crisis
How Can We Begin To Think About The Issue?”
By Professor Andy Lamey (University of California, San Diego)
January 6, 2016 Picture: Freedom House/Flickr.
Picture Description: “A boy holds anti-aircraft rounds up to the camera and smiles in the newly liberated town of Marayan in northern Syria. At night time in the town the loud sounds of bombardment and explosions can still be heard as the Syrian army continues to shell this”
This article is part of The Critique’s And Who Is My Neighbour? Exclusive
Western states in recent decades have exhibited widespread concern that they are or will be inundated by people from the Third World filing refugee claims not to escape persecution, but to move to a country with a higher standard of living. In response, rich nations have introduced a host of measures aimed at making it difficult to claim asylum. Airlines and shipping companies for example are fined when they transport people without proper documents. Residents of poor countries increasingly require visas to travel to rich ones, and must pass inspection with migration officers posted in overseas airports. Even if they do make it to a Western country, asylum-seekers are often denied work or detained. Hence the practical impossibility of genuine refugees such as the Kurdi’s travelling legally to the West and announcing themselves as refugees, and the need to rely on smugglers instead.
Against this backdrop, what, if anything, can be gained by examining the situation of refugees philosophically? At first glance the needs of refugees may seem too obvious to require the clarity that philosophical analysis brings. Certainly the most urgent problems facing refugees do seem political rather than theoretical. But not all needs of refugees are immediate and practical. An important question their situation raises is, who should be recognized as a refugee? Answering this question requires conceptually anaylzing the notion of refugeehood itself. As we will see, there is a credible case to be made that the definition of refugees currently found in international legal documents is too narrow and should be broadened to include, for example, someone displaced by the collapse of their government.
If philosophers can potentially improve the situation of refugees by making the case for a more expansive definition of refugees than is currently accepted, philosophers in turn may benefit from thinking about justice with refugees in mind. Indeed, a theory of justice that takes into account the situation of refugees will likely be better than one that does not. Refugees forcefully raise one of the central questions of political philosophy, that of who should belong to a political community. Examining this question as it pertains to refugees should cause us to recognize that a minimally acceptable understanding of community must be able to accommodate the needs of desperate strangers who are no longer protected by their governments. Philosophy, finally, has a role to play in addressing whether the modern regime of border control is morally defensible, and if it is not, what type of arrangement should take its place.
“Refugees forcefully raise one of the central questions of political philosophy, that of who should belong to a political community”.
Refugee crises are a modern phenomenon. Of course human beings have been driven from their homes by persecution since ancient times. Historically however most lacked the means to travel very far, let alone sustain themselves for long periods. Prior to the nineteenth century, European agricultural societies often could barely support their own populations. Thus, rather than occupying a special category, people fleeing political persecution before the 1800s quickly became indistinguishable from local vagabonds and beggars who sought scraps of charity. Often they met the same fate. As historian Michael Marrus has noted, pre-modern refugees “would quickly succumb to hunger, disease, or exposure. Large masses of people simply could not move from place to place supported by meagre social services. Winters, generally, would finish them off.” 
Major refugee crises following both World Wars focused the attention of Western states on displaced peoples. The major international document pertaining to refugees, the 1951 Convention Relating to the Status of Refugees, is a product of this time. Sponsored by the United Nations, it defines a refugee as someone who “owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country.” 
The Convention’s definition has exerted enduring influence. This is evident in the fact that the definitions of a refugee found in most national laws are based on it. But critics have suggested that the UN Convention is too closely shaped by the historical context in which it was drafted. The emphasis on persecution for example, has been characterized as reflecting the pre-occupations of 1950s Europe, in which a typical refugee was a defector from the Soviet Bloc. But there are other ways someone might come to lose the protection of government and law than through persecution. Examples include war, a breakdown in state institutions or natural disasters.
A wider definition of a refugee has been put forward by the Organization of African Unity(OAU). It incorporates the Convention’s phrasing about persecution, but then adds the following: “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of nationality.”
In a widely cited article published in Ethics in 1985, legal theorist Andrew Shacknove argued that the OAU definition was more cogent than the UN-sponsored one. As Shacknove wrote, “the OAU definition recognizes, as the UN definition does not, that the normal bond between the citizen and the state can be severed in diverse ways, persecution being but one.”  Many philosophers and political theorists who have subsequently examined the definition of a refugee have agreed with Shacknove that the 1951 Convention definition is too narrow. Hence Matthew Gibney’s plausible suggestion in his book The Ethics and Politics of Asylum (2004) that the definition of a refugee be widened to include “victims of generalised violence and events seriously disturbing the public order, such as famine and natural disasters, as well as individual persecution.”  [See Gibney’s discussion of Syrian refugees here].
Some philosophers would go further than Gibney, and widen the definition to include individuals who migrate to escape economic deprivation [See Oberman for discussion of economic migrants]. Such a view was defended by Peter Singer in the second edition of Practical Ethics (1993). As Singer wrote, “to distinguish between someone fleeing from political persecution and someone who flees from a land made uninhabitable by prolonged drought is difficult to justify when they are in equal need of a refuge. The UN definition, which would not classify the latter as a refugee, defines away the problem.” 
But should the legal definition of a refugee be as broad as Singer suggests? To see why not, it is helpful to distinguish between people facing different degrees of economic hardship. A refugee is someone whose most basic needs of protection cannot be met. The economic equivalent of this is not someone who immigrates in the hope of obtaining a better job, but someone facing severe circumstance of the kind Singer mentions, such as drought or famine. A key question arises however when we ask what people in such dire economic circumstances really need. Consider Singer’s example of someone experiencing a water shortage. In countries facing famine or drought the poorest of the poor do not have the resources to immigrate. Such individuals live in a state of absolute poverty, which precludes meeting their most basic needs. Moreover, there are usually far better ways to assist them than to go through the expensive process of flying them to the West. Normally the best way to assist people facing extreme poverty will be deliver food and economic assistance to them where they are.
This highlights the basic problem with Singer’s economic objection. It does not adequately separate moral status from legal status. On a moral level Singer is entirely correct: people in severe economic circumstances make just as strong a claim on us as do refugees fleeing persecution. The privileged status refugees enjoy however is legal rather than moral. They are entitled to priority in the immigration queue because unlike people facing economic deprivation, there is no other way to address their most urgent material need. Insisting on this legal priority is compatible with recognizing the equally serious moral claims of people facing severe poverty. Such claims however are most effectively dealt with outside the context of migration law.
“The privileged status refugees enjoy however is legal rather than moral. They are entitled to priority in the immigration queue because unlike people facing economic deprivation, there is no other way to address their most urgent material need.”
There is an interpretation of Hegel that sees rights as something bestowed upon individuals by the state. As Floy Doull put it in the journal Animus in 2005, “rights are not prior to government.”  On this approach rights are something that we only acquire as members of political society. Refugees however are stateless people. They have lost the protection of their original state, and all they can appeal to for protection are whatever rights they possess simply in virtue of being human. If rights are not prior to government, we might well criticize a state that creates refugees. But there will be no rights for stateless people to appeal to. (Alternatively, if such a view can accommodate rights for refugees, it will not be meaningfully distinct from the notion of pre-institutional rights it seeks to oppose.)
It is perhaps unsurprising that a doctrine with roots in Hegel’s thought, developed before the existence of refugees as a mass phenomena, is not well suited to clearly address their plight. But theories of justice developed in the modern period have also sometimes stumbled on the question of how to deal with refugees. Consider the view outlined by Michael Walzer in his important book Spheres of Justice (1983). Walzer defends an understanding of distributive justice that sees it not as a single universal principle, timeless and binding everywhere, but rather as the subject of shared understanding by members of a particular society. Such a view regards distributive justice as an entitlement defined by, and owed to, members of such a society. Given this, it is necessary and right for the society itself to determine who can and cannot be a member.
“Refugees however are stateless people. They have lost the protection of their original state, and all they can appeal to for protection are whatever rights they possess simply in virtue of being human”.
As Walzer put it in a famous passage, “Affluent and free countries are, like elite universities, besieged by applicants. They have to decide on their own size and character. We who are already members do the choosing, in accordance with our understanding of what membership means in our community and of what sort of community we want to have.”  This view is in keeping with Walzer’s communitarian account of justice. But a natural question such a view raises is how to address the situation of people who can no longer live in their own political community, and are urgently asking us to admit them.
Walzer argues that there will be cases in which we have a strong duty to admit refugees. The clearest cases will be those in which the receiving society helped create the refugees in the first place, as with the United States and people fleeing the Vietnam War. “But we can also be bound to help men and women persecuted or oppressed (…) because they are like us.”  Examples of this kind of obligation will involve “ideological as well as ethnic affinity,” as well as cases involving co-religionists. Walzer gives the examples of Hungarians who fled after the failed revolution of 1956. They were accepted in the West, Walzer suggests, because they were viewed as having fought for freedom and other Western values, and so were our ideological soulmates.
As Walzer notes, affinity is a matter of mutual recognition. Thus his account gives considerably leeway to a host society in determining who to admit. Individuals with whom a host society does not feel a sense of ideological or ethnic affinity could legitimately be excluded.
This is a troubling thought. It conjures up images of communists, Jews, Muslims and other historically persecuted groups being turned away on the grounds that they are not “like us.” As Walzer admits, “it might be said that my argument doesn’t reach to the desperation of the refugee. Nor does it suggest any way of dealing with the vast numbers of refugees generated by twentieth century politics.”  It is true, as Walzer notes, that no society can take in every refugee on earth. But the history of refugees offers a stark reminder that it is easy to define community too narrowly. It seems reasonable to reject a theory of justice that is inadequately vigilant toward this danger.
Is there a better alternative? Joseph Carens asks us to consider the possibility that ideological and ethnic affinity are not acceptable grounds on which to turn people away. Carens has long been a proponent of the so-called open borders view (which might be more accurately labelled the take-in-the-most-migrants-possible view, given that it would not abolish border control altogether). Hence Carens argues that the general practice of border control as we currently know it is unjust.
Carens was originally motivated to investigate the ethics of border control by the plight of Haitians, who since the 1960s have sought to reach Florida by boat to escape poverty and persecution in Haiti. Since 1981 Haitian boat people have been subject to a controversial interdiction policy carried out by the U.S. Coast Guard. The policy has changed over the years, but an enduring feature has been the interception of Haitians at sea before they can reach the U.S. and make an asylum claim. Human rights non-government organizations have long presented evidence documenting that a significant number of Haitian boat people meet the narrow definition of a refugee, making the interdiction program a violation of the 1951 Convention, which U.S. law endorses. Critics therefore have often argued that interdiction should be illegal. Carens’ critique however goes further. Spurred on by his initial inquiry into the case of Haitians, he eventually concluded that discretionary border control as currently enjoyed not only by the U.S. but most of the other states is incompatible with basic principles of justice.
This view has now resulted in Carens book The Ethics of Immigration (2013), which has already become a classic of the philosophical literature on migration. Carens bases his case on “democratic principles,” by which he means uncontroversial moral commitments that are widely shared in liberal states. Carens argues that one such commitment is to freedom, which can be understood as “not being the subject of the will of another.” A commitment to such a value would explain why freedom of movement within a state is considered a basic human right. (Carens is aware that we often balance one value against others: few of us recognize a right to enter the homes of strangers without permission.) But, he asks, if we have a general right to freedom of movement within countries, why not between them?
One reply says that if huge numbers of migrants arrived from the developing world it would make a welfare state economically impossible. But not only is this a high standard to meet—it offers no reason to exclude poor migrants beyond what is necessary to maintain viable welfare programs—it also does not justify the currently popular view that restricting immigration is acceptable whenever doing so is in the interest of current residents. The welfare state rationale also offers no reason to restrict immigration from developed countries. The European Union has abolished immigration controls between member states, Carens notes, and those with more generous welfare programs have preserved them by establishing waiting periods for other EU citizens seeking to access them. The welfare state argument therefore, rather than challenge open borders as a moral ideal, offers considerations that qualify the appropriateness of open borders given certain circumstances.
Carens concedes that open borders may need to be qualified on other grounds, such as to prevent an influx of immigrants so large that it endangers a host society’s language and culture. But this again does not challenge freedom of movement across borders as a right, any more than the existence of libel and slander laws means we have no right to freedom of speech. If we admit that open borders is an attractive ideal that we cannot yet implement because of global poverty and other (hopefully) contingent facts about our world, we have accepted Carens’ basic point, which argues for international freedom of movement at the level of ideal justice, if not immediate feasibility.
Carens argues that turning away both refugees and economic migrants on discretionary grounds is ultimately morally indefensible. Does this mean Singer is right after all, and we should reconsider the distinction between the two groups argued for above? Not necessarily. Carens offers an ideal theory of immigration policy. From the point of view of such a theory, we currently live in a non-ideal world in which border control remains a fact of life. Even if Carens’ account is correct, therefore, distinguishing refugees from immigrants will have value so long as states jealously guard their right to determine who can cross their borders. Refugees will continue to deserve distinct legal status so long as making an exception to restrictive immigration law is the only way we can realistically help them.
These are only some of the lessons we can learn by taking seriously the situation of refugees. They challenge us to not only revisit the very notion of a refugee, but also widely shared notions of community, not to mention the almost universal acceptance of the current regime of border control that exists across the earth today. If the situation of Alan Kurdi and so many other refugees is currently defined by deep injustice, beyond that which originally drove them from their homes, philosophy has an indispensable role to play in revealing what a more just response to refugees may someday look like.
Footnotes & References:
 Marrus, Michael, The Unwanted: European Refugees in the Twentieth Century (Oxford: Oxford University Press, 1985), p. 5.