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Chapter 10
Refugees
Gustavo Gutierrez was a good cop, so good that he was used in public advertisements as a model for the Juárez police force: an honest officer whose only goal was to enforce the law. That is what got him in trouble. Drug gangs noticed the ads and offered him bribes. He refused. They threatened him and his family. The threats were credible since the gangs had killed dozens of police officers and justice officials in Juárez. Gutierrez quit his job and moved to another part of Mexico over 16 hours away, but he still did not feel safe.In 2008 he fled to Canada and asked for asylum. “I had a good life — house, car, relatives close by,” he says. “I lost all of that. I’m glad I’m alive, but it’s hard to start again.”[1]
Should Canada admit Gustavo Gutierrez as a refugee? Should it send him back to Mexico? If he is sent back, he may be killed. If Canada admits him, is it obliged to take in the many thousandsof other people threatened by violent drug gangs in Mexico, Jamaica and other countries? What about others around the world facing threats to their lives and well-being? We have only to mention Bosnia, Sri Lanka, Rwanda, Iran, Iraq,Congo, Darfur and Afghanistanto evoke some of the recent cases that have caused millions of people to flee their homes in a desperate effort to find safety. Do those of us who live in democratic states have a responsibility to admit these refugees if they want to find a new home in one of our communities? Are we justified in refusing them entry?
Refugees and the Holocaust
Contemporary reflection about refugees begins in the shadow of the Holocaust. In discussing the topic of refugees, we should remember one fundamental truth: Jews fleeing Hitler deserved protection, and most of them did not get it.
In July of 1938, representatives from over thirty countries met in France to discuss how to respond to the refugees generated by Hitler’s persecution of German Jews. Apart from the Dominican Republic, no state offered to take in more refugees. Some Jews were able to find an open door – leading intellectuals and scientists, people with financial resources or political connections, and a few other lucky ones. But many more were turned away.[2] In one famous case in 1939, Jewish refugees from Germany reached the shores of North America in a ship named the St. Louisand sought asylum. They were refused permission to land. The boat returned to Europe and many of its passengers perished in the Holocaust.[3]
Some may object that no refugee situation today compares with Hitler’s Germany. There is a lot of truth in that, but we should be wary of taking easy comfort in such a view, imagining that we would never act as our predecessors did. If one looks at the responses to Jewish refugees in the late 1930s, it is striking how many echoes one hears of contemporary concerns and attitudes. Remember that, at this time, the death camps had not yet been built, and the Nazi regime had not yet committed itself to the Final Solution. Everyone knew that Jews were suffering but there were differing perceptions about the extent of their oppression. Some of those opposed to admitting Jewish refugees were overtly anti-semitic but many people took a view that went more like this:
What is happening to the Jews is too bad, but it’s not our fault. We have our own problems. If we take in all the Jews who want to come, we will be overwhelmed. There are simply too many of them. Besides, while Jews may be subject to discrimination and occasional acts of violence, things are not as bad as their advocacy groups say. They exaggerate the problem. Many of the Jews really just want better economic opportunities than they have now at home.In fact, the ones who do manage to make it to North America to seek asylum cannot be among the worst off because they have enough economic resources to cross the Atlantic. Times are tough here. We have an obligation to look out for our own needy first. A large influx of Jews could be a cultural and political threat. They don’t share our religious traditions or our democratic values. Some of them are communists and pose a basic security threat, but it’s hard to be sure which ones, so it’s better to err on the side of caution in restricting entry. Many of them have shown that they don’t really respect the law because they have bribed officials abroad for exit permits and travel papers, they have purchased forged documents, they have hired smugglers to transport them illegally, and they have lied to our immigration officials.Finally, admitting Jewish refugees serves the Nazis’ own goals and does not help to address the underlying problems that have given rise to the Nazi phenomenon.
In some respects,many of the concerns about Jewish refugees then wereas reasonable as the concerns about asylum seekers are today. There was debate and uncertainty about the extent of the risks faced by Jews in Hitler’s Germanyeven during the late 1930s. Those who were able to travel to North America were economically better off on average. Some Jews were communists. Some did bribe officials and use forged documents and hire smugglers in order to escape. Not all of the people who were turned away died in the Holocaust. The potential number of refugees was very large. Admitting Jewish refugees would not have solved the problem of the Nazis. Yet despite all of these facts, I take it to be incontestable that the response of democratic states to Jewish refugees during the 1930s was a profound moral failure, something that we should acknowledge as a shameful moment of our histories and resolve never to repeat.
We often gain our most important moral insights not from theory but from experience. As Rawls says, we have “considered convictions of justice” that we should use as a way of testing and criticizing our theoretical accounts.[4] I propose to use this terrible failure to accept Jewish refugees as a constraint upon our inquiry into the ethics of admitting refugees. Whatever principles or approaches we propose, we should always ask ourselves at some point, “What would this have meant if we had applied it to Jews fleeing Hitler?” And no answer will be acceptable if, when applied to the past, it would lead to the conclusion that it was justifiable to deny safe haven to Jews trying to escape the Nazis. This approach will not settle every question about refugees that we have to consider, but it will give us a minimum standard, one fixed point on our moral compass.
Refugees and Immigration: Framing the Inquiry
I approach the topic of refugees from the limited perspective of my concern with immigration into democratic states. This is only one of many normative issues raised by refugees, but I address these wider issues only to the extent necessary to address my more limited concerns.[5]
In this chapter, I will work within the familiar constraints of the conventional assumption about the right of democratic states to exercise discretionary control over immigration.This might seem surprising at first glance, but the idea that refugees have special moral claims to admission implicitly assumes the conventional view. It treats the obligation of states to admit refugees as an exception to the general rule that states are free to control entry and settlement.[6]This is not an unusual approach. Even those who most strongly defend the moral right of states to exercise discretionary control over admissions usually say that democratic states have a duty to accept at least some refugees.[7]
Treating the claims of refugees as a special case makes sense only if we presuppose that most people in the world cannot advance such claims. Some would object to that premise, arguing that the vast economic and political differences between states provide legitimate reasons for people from poor, authoritarian states to move to rich, democratic ones. I will consider that line of argument in the next chapter. In this one, however, I want to accept, as a premise, that what one might call the “ordinary inequalities of the modern world” do not give rise to a moral claim to admission as a refugee.
The Duty to Admit Refugees
Why should democratic states take in refugees at all? There are at least three kinds of reasons that can generate a duty to admit refugees: causal connection, humanitarian concern, and the normative presuppositions of the state system.[8]
The first rationale is causal connection. Sometimes we have an obligation to admit refugees because the actions of our own state have contributed in some way to the fact that the refugees are no longer safe in their home country.[9]Americans – whether supporters or opponents of the war – recognized this in the wake of the Vietnam War and took in hundreds of thousands of refugees from Vietnam, Cambodia, and Laos. The United States has the same sort of obligation towards Afghan and Iraqi refugees, especially those forced to flee because their lives were put in danger as a result of their cooperation with American troops, but, by comparison with the response to Vietnam, the country has done comparatively little to meet this responsibility so far.
We should already be starting to think about environmental refugees – people forced to flee their homes because of global warming and the resulting changes in the physical environment. One argument is that the rich democratic states bear a major responsibility for these environmental changes and so have a duty to admit the people who are forced to leave their home states because of these changes. Of course, there are counter arguments, as there are in the wider debate about how to allocate the costs of responding to climate change.
The general point is simply that causal connections can generate moral duties. I will not attempt an assessment of the competing accounts of the causes of refugee flows in this book.[10] That is beyond my competence. Obviously, the assignment of moral responsibility on the basis of causal connections will depend crucially on the interpretation of those causal connections.[11]
A second source of the duty to admit refugees is humanitarian concern. We have a duty to admit refugees simply because they have an urgent need for a safe place to live and we are in a position to provide it. This sort of moral view has many different sources, secular and religious. I won’t try to identify those sources here. It is enough to note that they exist and that they converge here on a sense of obligation to help people in dire need.[12]When I advanced my claims at the outset about our obligations to Jewish refugees, I was appealing intuitively to this overlapping consensus, to a shared sense, with many different foundations, that we ought to have opened our doors to these refugees.
A third way to think about the duty to admit refugees is to see it as something that emerges from the normative presuppositions of the modern state system. Themodern state system organizes the world so that all of the inhabited land is divided up among (putatively) sovereign states who possess exclusive authority over what goes on within the territories they govern, including the right to control and limit entry to their territories. Almost all human beings are assigned to one, and normally only one, of these states at birth. Defenders of the state system argue that human beings are better off under this arrangement than they would be under any feasible alternative. There are ways of challenging that view, and I will consider some of them in the next chapter. For the moment, however, let’s assume that it is correct.
Even if being assigned to a particular sovereign state works well for most people, it clearly does not work well for refugees. Their state has failed them, either deliberately or though its incapacity. Because the state system assigns people to states, states collectively have a responsibility to help those for whom this assignment is disastrous. The duty to admit refugees can thus be seen as an obligation that emerges from the responsibility to make some provision to correct for the foreseeable failures of a social institution.Every social institution will generate problems of one sort or another, but one of the responsibilities we have in constructing an institution is to anticipate the ways in which it might fail and to build in solutions for those failures. If people flee from the state of their birth (or citizenship) because it fails to provide them with a place where they can live safely, then other states have a duty to provide a safe haven. Thus we can see that states have a duty to admit refugees that derives from their own claim to exercise power legitimately in a world divided into states.
These three rationales are complementary. All three can be relevant at the same time, and any one of them is sufficient to create at least a prima facie duty to admit refugees.
Four Sets of Questions
Given this general sense that there is some duty to admit refugees, how can we clarify the nature and extent of that duty for democratic states? Refugees raise four basic kinds of questions for the ethics of immigration. First, who should be considered a refugee? For the purposes of my inquiry, a refugee is someone whose situation generates a strong moral claim to admission to a state in which she is not a citizen, despite the absence of any morally significant personal tie to those living there (as in family reunification). What gives rise to this sort of moral claim?
Second, what is owed to refugees? At a minimum, refugees need a place where they can be safe, but do they have a moral claim to more than that? Should they receive an opportunity to build a new life – jobs, education for their children, etc? Are they entitled to a permanent new home rather than just a temporary shelter?
Third, how should responsibilities for refugeesbe allocated among different states? In particular, what is the nature and extent of the obligation of democratic states to admit refugees? This is the most crucial question from the perspective of this book.
Finally, are there limits to ourobligations to refugees and, if so, what are they? Is there some point at which a democratic state is morally entitled to say to refugees, “We know that you face genuine and dire threats, but we have done enough. You are not our responsibility. We leave you to your fate.”?
The Current Refugee Regime
In exploring these questions, Iproceed, as usual,through critical reflection upon current practices, beginning with a brief description of how things work now. Democratic states admit refugees in two ways today: resettlement and asylum.
Resettlement
Resettlement occurs when a state selects refugees who have found a safe haven elsewhere, usually under UN auspices, and offers them a permanent new home. Most of the states with significant resettlement programs (the United States, Canada, Australia) are traditional immigration countries. (Sweden is an important exception to this pattern.)
For the purposes of this chapter, two things matter most about resettlement as it is currently practiced. First, the overall number of those resettled is very small relative to the needs of refugees. For example, in 2011, the United Nations High Commissioner for Refugees (UNHCR) had over ten million refugees under its care, over half of whom had been in exile for several years or more, but there were only about 80,000 places available for resettlement.[13]So, resettlementcurrently helps some refugees but is irrelevant to most.
Second, there is no generally recognized obligation to take in refugees for resettlement. States who accept refugees for resettlementmay be seen as generous, but those who refuse to do so violate no generally acknowledged norm. For that reason, resettlement, as currently practiced, is not seen as a moral duty that constrains the state’s discretionary control over immigration. I add the qualifier “as currently practiced” because I will argue in this chapter that we should see resettlement as a strong and extensive moral duty.
Asylum
The second way in which democratic states admit refugees is by granting them asylum. Asylum is far more significant and far more controversial than resettlement as a way of admitting refugees to democratic states.
Like Gustavo Gutierrez whose story opened this chapter, some people arrive in democratic states and ask to be allowed to stay there on the grounds that they are refugees. Under the Geneva Convention on Refugees, states may not return refugees to their state of origin or send them to any other state in which their lives or liberties would be threatened. This is the principle of non-refoulement. The Convention was originally adopted in 1951 but it applied then only to refugees in Europe whose plight was due to events prior to its adoption. In 1967, however, a Protocol was adopted that removed these geographical and temporal limits, making it a universal and ongoing commitment to assist refugees. Over one hundred states have signed the Convention including all democratic states in Europe and North America.The refugee regime created by the Geneva Convention establishes the normative principles that democratic states currently acknowledge as defining their responsibilities to refugees.