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Against the Alienage Condition for Refugeehood

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Abstract

Under the 1951 Refugee Convention, there are two necessary conditions for refugeehood: (1) a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and (2) alienage – that is, being outside of one’s country of nationality or habitual residence. In 1985 Andrew Shacknove famously argued that both of these conditions should be rejected. Shacknove’s paper prompted much debate about the suitability of the persecution condition, but his rejection of the alienage requirement has received significantly less attention. In this paper I argue, against some recent defenders of the Convention, that Shacknove was right to claim that the alienage condition should be rejected. On my view, people who would be granted refugee status if they crossed a border, but who remain in their country of nationality, should also be eligible for refugee status.

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Notes

  1. All uses of ‘international community’ in this paper refer to the group of safe states that are in a position to host refugees. Of course, whether a state is ‘safe’ depends on the refugee population in question, so in practice the obligation-bearing set of states that make up the ‘international community’ will vary by context.

  2. Admittedly, it will not apply so straightforwardly to more radical accounts. It is not obvious, for instance, that all people in severe poverty, including those who remain in their home state, should be refugees. This is a complication I set aside in this paper – but it raises important questions for future work.

  3. UNHCR, Convention and Protocol Relating to the Status of Refugees (1951 and 1967), p. 14.

  4. Andrew Shacknove, ‘Who is a Refugee?’, Ethics 95(2) (1985): pp. 274–284, 275.

  5. Ibid., p. 277.

  6. Ibid., p. 277.

  7. Ibid., pp. 278–279.

  8. Ibid., pp. 279–280.

  9. Ibid., p. 282. Although I defend Shacknove’s rejection of the alienage condition in this paper, I do not accept his international accessibility condition. As Matthew Lister points out, this requirement absurdly suggests that individuals threatened by weak states are refugees while those threatened by strong states are not. Of course, if a person is completely out of reach, states may not have an all things considered obligation to provide them with refuge. But such cases should not settle the question of whether individuals who remain in their home state should generally be entitled to asylum. See Matthew Lister, ‘Who Are Refugees?’, Law and Philosophy 32(5) (2013): pp. 656–657.

  10. Shacknove, ‘Who is a Refugee?’, p. 283.

  11. See e.g. Joseph Carens The Ethics of Immigration (Oxford: Oxford University Press, 2013), pp. 200–203; Michael Dummett On Immigration and Refugees (London: Routledge, 2001), p. 37; Luara Ferracioli, ‘The Appeal and Danger of a New Refugee Convention’, Social Theory and Practice 40(1) (2014): pp. 123–144, 123–126; Matthew Gibney, ‘Liberal Democratic States and Responsibilities to Refugees’, The American Political Science Review 93(1) (1999): pp. 169–181, 170–171; Serena Parekh, Refugees and the Ethics of Forced Displacement (New York: Routledge, 2016), pp. 11–13; Stephen Perry, ‘Immigration, Justice, and Culture’, in Justice in Immigration ed. by Warren F. Schwartz (Cambridge: Cambridge University Press, 1995), pp. 94–135, 104.

  12. Lister, ‘Who Are Refugees?’, pp. 660–662, and Max Cherem, ‘Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere’, The Journal of Political Philosophy 24(2) (2016): pp. 183–205, 187, 190–192. Lister has recently clarified that he endorses the persecution requirement for refugeehood for ‘contingent and pragmatic’ reasons, whereas on Cherem’s view persecution is an ‘essential and fundamental aspect of a proper account of refugees’. Still, their accounts are broadly similar – particularly regarding the alienage condition – so it seems fair to discuss them together here. See Matthew Lister, ‘The Place of Persecution and Non-State Action in Refugee Protection’, in Alex Sager (ed.), The Ethics and Politics of Immigration: Core Issues and Emerging Trends (Lanham, MD: Rowman & Littlefield, 2016), pp. 45–59, 47–48.

  13. Lister, ‘Who Are Refugees?’, p. 658, and Cherem, ‘Refugee Rights’, pp. 190–192.

  14. Lister, ‘Who Are Refugees?’, pp. 658–9.

  15. David Miller also makes this point in Strangers in Our Midst (Cambridge, MA: Harvard University Press, 2016), p. 80.

  16. Lister, ‘Who Are Refugees?’, pp. 647–8.

  17. See Lister, ‘Who Are Refugees?’, pp. 660–662, and Cherem, ‘Refugee Rights’, pp. 190–192. Again, I do not wish to take a stance on Lister and Cherem’s defense of the persecution condition here – I only mean to highlight that (at least) all persecuted people already possess the characteristics that should generate an entitlement to refugeehood on Lister and Cherem’s own terms.

  18. This seems to be Lister’s approach. Cherem sometimes suggests that location is fundamentally morally significant – e.g. he writes ‘Refugees are persecuted and cannot stay. This helps explain why leaving one’s country is partially constitutive of refugee status’ (‘Refugee Rights’, p. 190). However, this jumps the gun – a person can need to leave their country before they actually do so.

  19. For further discussion of this point, see David Owen, ‘In Loco Civitatis’, in Migration in Political Theory ed. by Sarah Fine and Lea Ypi (Oxford: Oxford University Press, 2016), pp. 269–289, 279–280.

  20. Shacknove, ‘Who is a Refugee?’, p. 283.

  21. UNHCR, Desperate Journeys (Feb 2017), p. 5.

  22. In 2016 alone, over 5000 migrants died crossing the Mediterranean. See International Organization for Migration, Missing Migrants: Tracking Deaths Along Migratory Routes, https://missingmigrants.iom.int.

  23. See e.g. Alison Gerard & Sharon Pickering, ‘Gender, Securitization and Transit: Refugee Women and the Journey to the EU’, Journal for Refugee Studies 27(3) (2013): pp. 338–359.

  24. Ibid., pp. 349, 351. Regarding sexual violence inflicted on refugee men and boys, see UNHCR, Sexual Violence Against Men and Boys in the Syria Crisis (2017). I thank an anonymous reviewer for recommending this source.

  25. E.g. Gerard & Pickering highlight cases where those without funds to purchase a border crossing were forced to provide ‘sexual services’ as payment instead. Gerard & Pickering, ‘Gender, Securitization, and Transit’, p. 347.

  26. James C. Hathaway & R. Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, Harvard Human Rights Journal 10 (1997): pp. 115–211, 153.

  27. UNHCR, Resettlement Handbook (2011), p. 243ff.

  28. UN General Assembly resolution 71/1, New York Declaration for Refugees and Migrants, A/RES/71/1 (19 September 2016), (objectives 27, 28).

  29. Ibid., (objectives 33, 77).

  30. I thank an anonymous reviewer for highlighting this point.

  31. See e.g. Hathaway & Neve, ‘Making International Law Relevant Again’, p. 120ff; Dummett, On Immigration and Refugees, p. 125–6; and Matthew Gibney, ‘“A Thousand Little Guantanamos”: Western States and Measures to Prevent the Arrival of Refugees’, in Kate E. Tunstall (ed.), Displacement, Asylum, Migration (Oxford: Oxford University Press, 2006), pp. 139–169.

  32. Gibney, ‘“A Thousand Little Guantanamos”’, pp. 147–151.

  33. Ibid., pp. 153–154.

  34. Ibid., p. 143. Even when these policies are implemented for reasons of general immigration control (which may or may not be permissible), they are clearly morally problematic when they create barriers to entry for asylum seekers.

  35. Ibid., pp. 140–141.

  36. David A. Martin, The New Asylum Seekers: Refugee Law in the 1980s (Dordrecht: Martinus Nijoff, 1988), p. 9.

  37. Lister, ‘Who Are Refugees?’, p. 664. Interestingly, in his more recent article Lister suggests that military intervention might be appropriate in some rare situations that give rise to refugees, particularly in cases ‘where the danger is very wide-spread and imminent, and the possibility of success is quite high’. See Lister, ‘The Place of Persecution and Non-State Action in Refugee Protection’, p. 48.

  38. Cherem, ‘Refugee Rights’, pp. 188, 193n.

  39. John Rawls, The Law of Peoples (Cambridge MA: Harvard University Press, 1999), pp. 25–27, 42, 59.

  40. Michael Walzer, ‘The Moral Standing of States: A Response to Four Critics’, Philosophy and Public Affairs 9(3) (1980): pp. 209–229, 226.

  41. Ibid., pp. 217–8.

  42. Lister, ‘Who Are Refugees?’, p. 668.

  43. Cherem, ‘Refugee Rights’, p. 193n. Here, Cherem cites Christopher Heath Wellman, ‘Taking Human Rights Seriously’, The Journal of Political Philosophy 20(1) (2012): pp. 119–130, 130.

  44. See e.g. Kok-Chor Tan, ‘The Duty to Protect’, Nomos 47 (2006): pp. 84–116, 85; and Edward C. Luck, ‘The Responsibility to Protect: The First Decade’, Global Responsibility to Protect 3 (2011): pp. 387–399, 393.

  45. UN General Assembly, resolution 60/1, 2005 World Summit Outcome, A/RES/60/1 (16 September 2005), (paragraph 139).

  46. Ibid., (paragraph 139).

  47. See e.g. Tan, ‘The Duty to Protect’, p. 89; and James Pattison, ‘Is There a Duty to Intervene? Intervention and the Responsibility to Protect’, Philosophy Compass 8(6) (2013): pp. 570–579, 571.

  48. It should be acknowledged that Cherem also has two more principled worries about the permissibility of military intervention (p. 193n). He (1) appeals to Bas Van der Vossen’s argument for the asymmetry of legitimacy, according to which states that pass unjust laws internally may still have a right against external intervention, and (2) Colleen Murphy’s defense of Lon Fuller’s claim that the rule of law is non-instrumentally valuable – which provides further reason to worry about intervention, because it often destabilizes the rule of law. However, it is worth pointing out that neither of these arguments, by themselves, suggest that humanitarian intervention is usually impermissible in cases of widespread internal persecution. With regard to (1), even if we accept that legitimacy is asymmetric, a further substantive account of legitimacy would be needed to determine whether a refugee-producing state had a right against external intervention. Regarding (2), Murphy herself states that the rule of law (a) is merely a façade in some states, (b) does not have value if it does not promote reciprocity and respect for autonomy, and (c) has value that can be outweighed by other elements of political morality. In severe cases of widespread persecution, there is reason to think that one of (a)-(c) will obtain. See Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’, Law and Philosophy 24(3) (2005): pp. 239–262; and Bas Van der Vossen, ‘The Asymmetry of Legitimacy’, Law and Philosophy 31(5) (2012): pp. 565–592.

  49. Florian Oel, ‘Let Us Be Proud of Europe: more than 160 NGOs call on EU to lead by values, not fear, in migration response’, ReliefWeb, available from https://reliefweb.int/report/world/let-us-be-proud-europe-more-160-ngos-call-eu-lead-values-not-fear-migration-response.

  50. As mentioned in section III, such measures could also be implemented under the Convention definition – but recognizing that alienage should be rejected generates further impetus for engaging in this sort of assistance.

  51. Cherem, ‘Refugee Rights’, p. 188.

  52. Global Protection Cluster, Handbook for the Protection of Internally Displaced Persons (June 2010), pp. 1, 8.

  53. UNOCHA, Guiding Principles on Internal Displacement, (principle 6).

  54. Cathryn Costello, ‘On Refugeehood and Citizenship’, in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds.), The Oxford Handbook of Citizenship (Oxford: Oxford University Press, 2017), pp. 717–742, 722.

  55. Guy Goodwin-Gill, The Refugee in International Law (Oxford: Oxford University Press, 1996), p. 264.

  56. Global Protection Cluster, Handbook for the Protection of Internally Displaced Persons, p. 1.

  57. Ibid., p. 9.

  58. UNHCR, Internally Displaced Persons: The Role of the United Nations High Commissioner for Refugees (2000), p. 3.

  59. Of course, as with Convention refugees, states could set principled restrictions on the IDPs they permit entry to. E.g. it would be reasonable for a state to refuse to grant refuge to individuals who pose threats to internal security, or to refuse to admit very large numbers of IDPs if such admission would pose a genuine threat to internal or regional stability. A proper system of responsibility-distribution could ensure that these people would still have access to refuge elsewhere. This should go some way towards assuaging the worry that recategorizing IDPs as refugees would overwhelm bordering states.

  60. Refugee Act of 1980 (Pub. L. No. 96-212, 94 Stat. 102), USA, Title II, §201(42).

  61. Judith Kumin, ‘Orderly Departure from Vietnam: Cold War Anomaly or Humanitarian Innovation?’, Refugee Survey Quarterly 27(1) (2008): pp. 104–117, 104–5.

  62. Ibid., p. 107.

  63. For this reason, assisted resettlement is not obviously all-things-considered objectionable even when it involves resettling large numbers of minorities, as in the case of Vietnam. When evaluating the permissibility of a particular remedy, it is often instructive to consider the perspective of its recipients. If the persecuted would prefer asylum over other forms of international assistance, it is likely that conditions are sufficiently severe that UNHCR-supported departure should be offered to those who wish to take it. In any case, though, it is not obvious that policies requiring assisted resettlement would lead to a rise in UN-sponsored ethnic cleansing. In fact, they may motivate the international community to more proactively challenge the root causes of refugee crises in order to avoid incurring such resettlement obligations in the future.

  64. Kumin, ‘Orderly Departure from Vietnam’, p. 117.

  65. Cherem, ‘Refugee Rights’, p. 187. An anonymous reviewer highlights that, contrary to what Cherem suggests, irregular travel is not a necessity under the current system – persecuted people who travel regularly to claim asylum are also refugees. Still, Cherem’s general point that refugees currently have agency to claim their adjudicative rights through some form of travel remains sound.

  66. Ibid., p. 201.

  67. Dummett, On Immigration and Refugees, pp. 42–43.

  68. Of course, it must be emphasized that refugees are not merely asking for help, but are claiming a right – if anything, this strengthens the force of the argument here.

  69. Such an objection is in the spirit of Onora O’Neill’s ‘manifesto rights’ objection to rights-based approaches to global justice. See Onora O’Neill, ‘Transnational Justice’, in David Held (ed.) Political Theory Today (Stanford, California: Stanford University Press, 1991), pp. 276–304, 286–287. For the original discussion of manifesto rights from which O’Neill adopts this term, see Joel Feinberg, ‘The Nature and Value of Rights’, The Journal of Value Inquiry 4(4) (1970): pp. 243–260, 255.

  70. Feinberg, ‘The Nature and Value of Rights’, p. 255.

  71. This response is in line with Kok-Chor Tan’s response to O’Neill’s criticism of rights-based approaches to justice. According to Tan, problems of imperfect-duty-enforcement are practical, not conceptual. See Kok-Chor Tan, Justice Without Borders (New York: Cambridge University Press, 2004), p. 51.

  72. See e.g. Debra Satz, ‘Equality of What Among Whom?: Thoughts on Cosmopolitanism, Statism, and Nationalism’, Nomos 41 (1999): pp. 67–85, 77–78; Rawls, The Law of Peoples, p. 36; Dummett, On Immigration and Refugees, p. 130, 134; and Kok-Chor Tan, Toleration, Diversity, and Global Justice (Pennsylvania: The Pennsylvania State University, 2000), p. 101.

  73. In a related objection, Sune Lægaard argues that philosophical discussions of the refugee crisis are often ‘incoherent’ in that they purport to be about problems that arise in nonideal circumstances, but their solutions to these problems make ideal assumptions about the behavior of the duty-bearing agents. Sune Lægaard, ‘Misplaced Idealism and Incoherent Realism in the Philosophy of the Refugee Crisis’, Journal of Global Ethics 12(3) (2016): pp. 269–278. I thank an anonymous reviewer for recommending this paper.

  74. Of course, the question of whether an interim policy that brings us closer to removing the alienage condition is implementable is importantly separate from the question of whether an effective system of protection without an alienage condition is feasible. Nonetheless, providing evidence of implementable interim policies should go some way towards convincing those who are skeptical that the recommendations I make are feasible.

  75. See Hathaway & Neve, ‘Making International Refugee Law Relevant Again’, p. 187ff. Their suggestion is informed by an earlier proposal – see Asha Hans & Astri Suhrke, ‘Responsibility Sharing’, Refuge 15(1) (1996): pp. 12–13.

  76. Hathaway & Neve, ‘Making International Refugee Law Relevant Again’, pp. 191, 193–4, 195.

  77. Consider, for instance, Matthew Price’s claim that asylum-provision expresses condemnation of the refugee-producing state’s oppressive behavior, and is an early-stage coercive mechanism decent states can use to challenge oppressive behavior. While I do not agree with Price’s claim that asylum should play this role in all cases, it is plausible that asylum-provision could sometimes serve this function. See Matthew Price, Rethinking Asylum (Cambridge: Cambridge University Press, 2009), pp. 76–77.

  78. See e.g. Oona Hathaway & Scott Shapiro, The Internationalists (New York: Simon & Schuster, 2018).

Acknowledgements

Early versions of this paper were presented in graduate student workshops at the University of Pennsylvania, and at the University of Knoxville, Tennessee 2018 conference ‘Justice Across Borders’. Many thanks to the organizers and participants at those events for their useful comments. I would also particularly like to thank Kok-Chor Tan, Brian Berkey, and Samuel Freeman for their exceedingly helpful feedback on multiple early drafts of this paper; Fernando Chang-Muy, Max Cherem, and Stephen Perry for their valuable conversations on this topic; and two anonymous reviewers at Law and Philosophy for their thorough, constructive, and generous comments.

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Beaton, E. Against the Alienage Condition for Refugeehood. Law and Philos 39, 147–176 (2020). https://doi.org/10.1007/s10982-019-09366-2

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