The struggle to accommodate the world’s refugees raises a wider question: do states have an absolute right to control borders?
This article is a preview from the Autumn 2017 edition of New Humanist.
The images of desperate refugees crossing the Mediterranean to Europe can give a misleading impression. Most forced migrants are not on dangerous journeys to wealthy societies but living dreary lives in countries bordering on conflict zones, warehoused in inhospitable camps run by the United Nations High Commissioner for Refugees (UNHCR) or scrabbling for subsistence in regional towns and cities.
In their new book Refuge: Transforming a Broken Refugee System, Alexander Betts and Paul Collier argue that the current regime of international refugee protection serves most refugees poorly and should be rethought to enable them to escape their current limbo. It is hard to disagree with their claim that our focus is distorted and that better solutions are needed. What is worrying about the book is that its positive message is accompanied by an attack on the existing refugee protection framework that threatens to undermine wealthy states’ already meagre commitment to refugees. Betts and Collier intermingle a set of positive policy proposals around forced migration with often ill-considered arguments concerning immigration generally, perhaps reflecting the different agendas of the authors: Betts is a refugee studies scholar and Collier a development economist with a history of anti-immigration polemic.
Refuge is, at least in parts, a serious book with serious arguments. It is a great pity that the good is often obscured by the shoddy. Western refugee advocates are derided as “romantic” and Betts and Collier distinguish the perspectives of the “heart” and the “head” in an irritatingly self-regarding manner. Governments that have taken great pains to evade their responsibilities under the Convention are handled softly, whereas lawyers and workers for human rights NGOs are the problem. David Cameron, a politician with a “head”, who tried to keep refugees out of Britain during his time in government, gets a good press; whereas Angela Merkel, apparently swayed by (female?) emotion, is the naive and unwitting agent of harm, with her 2015 decision to offer asylum to all Syrians on German soil.
Betts and Collier present both history and social science in highly selective ways. They present the failures that led to mass forced migration as the unpredictable results of local “fragility” and downplay the responsibility of Western governments. This is particularly jarring in the case of Syria and indeed the whole Arab Spring, where the destabilising effect of the 2003 Iraq War is simply forgotten. Betts and Collier airily invoke different national “folk narratives” to explain how European countries responded to the 2015 refugee crisis. Arguments are sometimes misreported and “facts” are not quite what they seem. Headline statistics that carry great weight in the argument, such as the claim that each refugee in Europe costs 135 times as much as one in the developing world, turn out to be based on highly tendentious estimates.
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The Refugee Convention of 1951 as extended by a further protocol in 1967 is the principal instrument of international refugee law. It contains a legal definition of “refugee” and imposes a legal duty of non-refoulement, a French term that means not sending people back to where they would continue to be at risk. The Convention aims to address people in a condition of “alienage” and is not aimed at general humanitarian protection for forced migrants. People in the condition of alienage are those outside their country of nationality (or habitual residence) who lack the protection that is normally a consequence of citizenship. Refugee status gives them an internationally recognised substitute for effective citizenship of their home state that may in time be superseded by the acquisition of a new nationality or by the resumption of their former one. To acquire refugee status – from UNHCR or by claiming asylum in a contracting state – you must demonstrate a well-founded fear of persecution on the basis of at least one of a range of characteristics, which include political and religious beliefs.
The Convention is a strange beast, because there is no international authority to determine consistency in judgement. Rather, national courts of the various contracting states interpret its terms independently, but often with an eye to decisions elsewhere. This could be viewed either as an inspiring story of what is possible in the absence of central authority or as a worrying tale of inconsistency. Betts and Collier take the latter view. They argue that the Convention, and the institutional system of which it is a part, is a child of the Cold War circumstances of its drafting and is ill-suited to 21st-century challenges. They suggest it is now applied, particularly since its 1967 generalisation, to circumstances for which it was never intended.
The claim that the Convention is merely the product of the Cold War seems overstated. To be sure, embarrassing the Soviet Union was a motivating factor for the original signatories, particularly the United States, but there were others too: a sense that the inter-war system had failed, and the practical problem of millions of displaced persons on European soil. It is also dangerous to conflate the motives of the signatories at the time with the intention contained in a legal document. We don’t usually think that the person who declares their commitment to an ideal from self-interested motives is absolved of that commitment as soon as the calculus of advantage changes. Though Betts and Collier are right that the Convention was initially limited to Europe at a specific time, its drafters also held it up as an example with the hope that its principles might later be emulated and extended.
Betts and Collier are correct that the Convention definition does not cover all the people who are forced migrants and deserve humanitarian protection. The obvious remedy would be to extend protection beyond those covered by the Convention. Unfortunately, states and politicians have generally proved unwilling to do this beyond ad hoc responses to particular crises. Lawyers, on the other hand, have shown some inventiveness in adapting the Convention definition to wider groups. Such expansion is inferior to addressing the problems posed by such vulnerable groups through explicit political agreement, but better than leaving such people unprotected. Betts and Collier argue for a reformed understanding that solves the problem of the underprotected, but unfortunately they do this at the expense of weakening the basis for protection in other respects.
Their starting point is a humanitarian duty of rescue, inspired by Peter Singer’s thought experiment about a drowning child, together with a revised definition of “harm” limited to serious physical harm. Just as we have a positive duty to save a drowning child when we can do so at no serious risk to ourselves, we have a duty to protect people forced to migrate because they have no choice because they are in danger of serious harm. This brings into the circle of protection those displaced by war, famine or climate. It potentially leaves out people who currently have a claim to asylum, such the dissident journalist or academic, deprived of the right to practise her profession or placed under house arrest. Moreover, the shift in focus from solving the problem of alienage to a humanitarian concern is also a shift from a distinctively political understanding to one of keeping people alive and safe.
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Oddly, given the focus of the book on refugees and forced migration, a substantial chunk of the chapter on the duty of rescue is given over to refuting the idea of open borders. The conventional view is that states have the right to control their borders and most normative discussion of refugee protection proceeds within this conventional framework with the aim of persuading people that – even with this assumption granted – forced migrants should be an exception. A desire to dig deeper is not unwelcome, but here it consists of Betts and Collier putting on display how absurdly silly they find the arguments against state discretionary control. They may not have presented such arguments in their best form.
By my count Betts and Collier advance five distinct arguments, though they themselves refer to four, describing them as “romantically appealing” but not surviving “serious scrutiny”. The first is that borders are arbitrary lines on maps that violate a natural right to shared ownership of the earth. This they dispose of quickly by observing that there are many human institutions, including private property and companies, that are likewise artificial but on which modern life depends. This is glib. After all, companies and property owe their legal existence and legitimacy to the state. Unlike companies and other private associations, the state is a coercive compulsory organisation that includes or excludes most people from membership at birth.
The second argument they consider is the asymmetry between the widely recognised right of exit and the right of entry. They quickly dismiss the thought that a right to emigrate might imply a right to immigrate with the observation that someone’s right to leave their own house doesn’t imply a right to enter someone else’s. Indeed not, but state territory is rather different from private property, despite the popularity of analogies between the two, and people need public land and highways to be available to make their right of exit from their houses effective.
A third argument concerns the comparative good fortune of people living in wealthy societies: what gives them the right to exclude those unlucky enough to be born into poorer ones? Here again, the counter-arguments from Betts and Collier are very quick and superficial. Noticing that historical issues about colonialism might intrude into the discussion, they invite us to consider the cases of Nigeria and Botswana, where the Botswanans have used good governance to enjoy the benefits of their natural resources, whereas the Nigerians supposedly have not.
Allowing free migration from Nigeria to Botswana would allow the Nigerians to benefit undeservedly from the prudence of the Botswanans. But this argument, if successful, at best provides a particular case where one state might be entitled to impose restrictions. It isn’t going to generalise to those other cases where the comparative wealth and poverty of the different societies are not explicable purely endogenously but may involve a shared and morally compromised history.
Fourth comes the argument that wealthy countries with welfare states need to restrict migration in order to protect their least well-off citizens, which simply presupposes that those citizens are entitled to have their interests advanced at the expense of the global poor. Perhaps noticing that this is a weak point, Betts and Collier tell us that free movement would be “a particularly ineffective means” to achieve a more just distribution of global wealth. But we are now very much in the arena of facts and consequences rather than rights and it is worth at least noting here that other economists, such as the World Bank’s Branko
Milanovic, take an opposite view. With a fifth and final argument, Betts and Collier purport to refute claims that free movement would generate massive economic gains through increased efficiency, arguing that even if there were such gains, no mechanism exists to redistribute the costs and benefits appropriately among winners and losers. The mystery here is that having dismissed immigration as a means of redistribution in the previous argument on the grounds that there are better ways of achieving it, they now express scepticism about other redistributive mechanisms.
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One concern that Betts and Collier repeatedly mention is “brain drain”. Those originally displaced from countries of conflict are something like a representative sample, but people who make onward journeys and are recognised as refugees in wealthy countries are disproportionately young, male and educated. The worry is that when conflicts end and it becomes safe to return, those best able to reconstruct a society will choose not to because they have new and better lives in successful capitalist economies. The literature on brain drain in general is highly contested, with some economists denying that it is a pervasive phenomenon with serious negative effects and, indeed, arguing that the skills developed in countries of exile, the international networks established and the money sent to relatives and others more than outweigh the loss of human capital to the poorer country.
Betts and Collier simply help themselves to the idea that people have special obligations to their co-nationals that should trump other duties but say little about the moral basis for this. Why do professionals of Syrian nationality have a greater obligation to the people of Syria than far richer American or British professionals? No doubt people often do feel the pull of duties towards their own communities, but Betts and Collier have a state-centric view of obligation, where “home” is defined by state boundaries even where national borders are artificial colonial impositions that cut across real communities and ethnicities. Since most of the states concerned fall well short of liberal democratic norms and fail to protect basic rights, Betts and Collier are attributing a duty to exiles to return and contribute to political entities that may have no rational claim to their allegiance.
A striking feature of the book’s approach is its apparent inconsistency. It combines a strong rights-based framework governing the relationship that citizens have to one another with a straightforwardly consequentialist account of our duties to desperate outsiders. In their view, the rights “we” enjoy to our accumulated wealth and functioning institutions, together with the duties citizens have to one another to maintain those institutions, including the welfare state, ground strong presumptive rights to exclude immigrants. In poor states, citizens have a similar right that their better educated compatriots contribute to the economic well-being of the country. Refugee protection, on the other hand, is governed by a calculus of doing the most good, and obligations can be rejected if there is a more efficient way of spending the same money. The Refugee Convention’s commitment to making individual rights effective even when citizenship is lost is replaced by a concern with harm avoidance in the short term and economic agency in the long term.
There is no space here to flesh out a full alternative to Betts and Collier’s ethical framework, but doing so would involve looking at the issue of refugees and forced migration within a broader view of the regulation of migration, with state rights to exclude and individuals’ right to protection both requiring justification from an impartial perspective common to everyone, everywhere. The right of Botswana to regulate the admission of poor Nigerians, given that it is a small country without a rapacious history, might survive such a test. But it is doubtful that policies by rich countries whose wealth arose in part from imperial adventure could successfully justify the right to expose poor migrants seeking a better life to mortal risks in seas and deserts. True to their record of presenting alternative views in the most unfavourable light, the only example of an ethically impartial approach that Betts and Collier consider is an unrestricted utilitarianism that leaves no room at all for special obligations. They should have tried harder.
The main positive proposal in the book is that Western countries should partner with companies to develop economic zones in poor host countries bordering the states forced migrants have fled. The final chapters of the book paint a compelling picture of how miserable life can be in refugee camps in poor states, how there is often nothing to do, and how skills atrophy where refugees are barred from economic activity. Though the details may vary from country to country, the idea is that refugees should achieve dignity and freedom in their temporary home by being put to work and that the economic co-operation fostered among refugees in these border areas and the partnerships with Western companies (underwritten by aid money) should form the basis for reconstructing the economy of the country of origin once it is safe to return.
The attractions and disadvantages of this proposal can look rather different depending on the perspective we take. On the one hand, giving forced migrants the opportunity for economic participation is potentially an autonomy-fostering improvement. Coupled with other changes, such as the provision of decent education for their children, we have an idea which, if implemented properly, could make their lives much better. If this were to happen, a significant motive for people to try to move onwards and seek new lives in Europe or other wealthy countries would be much reduced. In the case of Turkey, for example, many families moved onwards because there was no prospect of work or proper education. Eliminating push factors that have led people to take dangerous journeys would be a good thing.
On the other hand the Betts and Collier plan could take on a more sinister aspect if the reality was semi-conscripted labour on behalf of multinational companies and an alibi for the refoulement of refugees to countries that are “safe” but with poor human rights records. Indeed they explicitly anticipate that people who arrive in wealthy countries with the aid of people smugglers would be “sent back to a functioning development area”.
Given the enthusiasm that Western governments currently have for negotiating deals with countries such as Morocco, Turkey and even Libya to prevent onward travel, even in the absence of such functioning development areas, it seems likely that this book’s insistence on the moral importance of the many over the few will have the effect of justifying the repelling of the few while the life of the many carries on much as before.
“Refuge” is published by Allen Lane