Refugees and the limits of political philosophy

ABSTRACT

Everyone has the right to seek and to enjoy in other countries asylum from persecution, but in practice many people seek asylum and do not find it. Where asylum is in short supply, it may seem obvious and reasonable for philosophers to ask whether we can identify principles for prioritizing the asylum claims of some over those of others. In this paper I consider what kind of question this is, and whether it is one that philosophers are in a good position to address. I argue that philosophers have a number of powerful reasons to approach it with serious caution, and even to avoid it altogether. I outline some potential pitfalls of answering it, including the risk of normalizing violations of the principle of non-refoulement.

KEYWORDS:

• Refugees
• asylum
• principle of non-refoulement
• non-ideal theory
• philosophy

Acknowledgments

Earlier versions of this paper were presented at ‘Refugees and Minority Rights: Acceptable and unacceptable criteria for accepting/rejecting refugees in a non-ideal world’, University of Tromsø, June 2018; ANU’s Philosophy Society Seminar, August 2018; at the Department of Philosophy, University of Birmingham, January 2019; and at the York Political Theory Workshop, May 2019. Thanks to the participants for very helpful questions. I worked on this material while I was a visitor at the ANU’s School of Philosophy in the Research School of Social Sciences, and gratefully acknowledge their support. Special thanks to Daniel Butt, Avia Pasternak, Zofia Stemplowska, and Patrick Tomlin for discussion of some core themes, and to Kasper Lippert-Rasmussen, Annamari Vitikainen, Lea Ypi, and two anonymous referees for their constructive comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ See for example the opening paragraphs of Isaiah Berlin’s famous lecture about liberty, delivered in 1958, in which he bemoans the lack of ‘serious attention… paid to fundamental problems of politics by professional philosophers’ (Berlin 2002, 166–167).

² See Jaggar 2009 for a comparison of the methods of John Rawls and Iris Marion Young, in which Young’s account of justice is praised for its ‘relevance’ (among other things).

³ On philosophical contributions to public debates, see the interview with Nigel Warburton here: http://www.philosophersmag.com/interviews/16-nigel-warburton-virtual-philosopher. For a contrasting view, that ‘political philosophers have a prima facie moral duty to avoid being politically active’, see van der Vossen 2015.

⁴ See the full conference outline here: https://philevents.org/event/show/62554.

⁵ With thanks to Josh Milburn for helpful discussion about parallels with the animal ethics case. See an attempt to grapple with some overlapping concerns in Fischer and Milburn 2019.

⁶ It may well be, but I am not seeking to defend that kind of claim here.

⁷ I am grateful to Seth Lazar for drawing my attention to this piece, which focuses on a closely related concern: the ethics of philosophical criticism of existing legal norms.

⁸ For a useful outline of the different ways in which the ideal-non-ideal theory debate is playing out in political philosophy, see Valentini 2012; Stemplowska 2017.

⁹ See for example Cohen 2003; Ronzoni and Valentini 2008; Sangiovanni 2016.

¹⁰ See the discussion in Carens 1996; and in Blake 2001.

¹¹ On the issue of conservative bias, see Blake 2001, 264.

¹² See UNCHR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’, at: http://www.unhcr.org/4d9486929.pdf.

¹³ UNCHR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations’, 2.

¹⁴ I note that there has been some legal debate about whether the duty of non-refoulement may be qualified in cases where that is necessary for the protection of states’ vital national interests during situations of so-called ‘mass influx’. See Hathaway 2005, 357; Costello and Foster 2016, 311.

¹⁵ UNCHR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations’, 3, emphasis added.

¹⁶ Thanks to Lea Ypi for pushing me to emphasize this point.

¹⁷ For further discussion, see Hathaway and Gammeltoft-Hansen 2015.

¹⁸ Non-refoulement is described as the cardinal principle of the international refugee protection regime in the Global Compact on Refugees 2018, 1, available here: https://www.unhcr.org/gcr/GCR_English.pdf.

¹⁹ For more information, see: http://eea.iom.int/index.php/what-we-do/eu-relocation.

²⁰ Figures available here: http://www.unhcr.org/uk/5a9d507f7.

²¹ See the 2018 Global Compact on Refugees, available here: https://www.unhcr.org/gcr/GCR_English.pdf: ‘There is an urgent need for more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees, while taking account of existing contributions and the differing capacities and resources among States. Refugees and host communities should not be left behind’ (1).

²² UNHCR’s figures in 2019, available here: https://www.unhcr.org/uk/figures-at-a-glance.html. Last checked August 2019.

²³ For further discussion, see for example Goose and Smyth 1994.

²⁴ Thanks to two referees for encouraging me to address this issue.

²⁵ I do not enter into the debate about definitions of refugeehood here, but note that even on the so-called ‘Convention’ understanding of refugees – people outside their country of origin and unable or unwilling to return to it owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion – the elimination of refugee producing situations is (to put it mildly) unlikely.

²⁶ See Miller 2016 for examples of this sort. E.g. pp. 92–93: ‘A state that has set an overall immigration target, on grounds that are publicly justified, can also take steps to ensure that the number of refugees it admits does not exceed that target. What it cannot do is use indefensible means to prevent refugees arriving while continuing to take in significant numbers of “desirable” immigrants – this would simply be hypocrisy on its part.’

²⁷ For an illustration of this point, see Schweiger 2019, 46: ‘I hope that my considerations can actually be further developed to guide concrete policies for the benefit of those in need’.

²⁸ Of course, in practice, this freedom is heavily constrained in a variety of social and political contexts. In addition, as Annamari Vitikainen points out to me, some might wonder about the extent to which it really is up to us what we write about and which questions we want to answer, given trends in funding regimes and the pressure to obtain large grants. Others worry about the silencing effects of social media ‘pile-ons’ and online ‘mobbing’, which ‘discipline’ academics and punish interventions on various issues.

²⁹ For an argument that we, as political philosophers, should not necessarily answer all the questions we are asked, see Jubb and Kurtulmus 2012.

³⁰ On the importance of engaging with and foregrounding the experiences of refugees, see Fine 2019.

³¹ For example, see Boochani 2018 for powerful testimony and critique of immigration detention from the perspective of someone imprisoned for years on Manus Island, and read some first-hand accounts of refugees’ experiences here: https://www.newsdeeply.com/refugees/refugee-voices.