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What's Political about Political Refugeehood? A Normative Reappraisal

Published online by Cambridge University Press:  23 September 2022

Felix Bender*
Affiliation:
KU Leuven, Leuven, Belgium (felix.bender@kuleuven.be)

Abstract

What is political about political refugeehood? Theorists have assumed that refugees are special because their specific predicament as those who are persecuted sets them aside from other “necessitous strangers.” Persecution is a special form of wrongful harm that marks the repudiation of a person's political membership and that cannot—contrary to certain other harms—be remedied where they are. It makes asylum necessary as a specific remedial institution. In this article, I argue that this is correct. Yet, the connection between political membership, its repudiation, and persecution is far from clear. Drawing on normative political thought and research on autocracies, repression, and migration studies, I show that it is political oppression that marks the repudiation of political membership and leads to various forms of repression that can equally not be remedied at home. A truly political account moves away from persecution and endorses political oppression as the normative pillar of refugeehood and asylum.

Type
Feature
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs

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References

NOTES

1 Price, Matthew E., Rethinking Asylum: History, Purpose, and Limits (Cambridge, U.K.: Cambridge University Press, 2009)CrossRefGoogle Scholar; Price, Matthew E., “Persecution Complex: Justifying Asylum Law's Preference for Persecuted People,” Harvard International Law Journal 47, no. 2 (Summer 2006), pp. 413–66Google Scholar; Price, Matthew E., “Politics or Humanitarianism? Recovering the Political Roots of Asylum,” Georgetown Immigration Law Journal 19, no. 2 (Winter 2005), pp. 277312Google Scholar; Cherem, Max, “Refugee Rights: Against Expanding the Definition of a ‘Refugee’ and Unilateral Protection Elsewhere,” Journal of Political Philosophy 24, no. 2 (September 2015), pp. 183205CrossRefGoogle Scholar; and Lister, Matthew, “Who Are Refugees?,” Law and Philosophy 32, no. 5 (September 2013), pp. 645–71CrossRefGoogle Scholar.

2 UN General Assembly, “Convention Relating to the Status of Refugees,” Art. 1(2), July 28, 1951.

3 Colloquium on Challenges in International Refugee Law, “International Refugee Law: The Michigan Guidelines on Nexus to a Convention Ground,” Michigan Journal of International Law 23, no. 2 (Winter 2002), pp. 210–21; and Foster, Michelle, “Causation in Context: Interpreting the Nexus Clause in the Refugee Convention,” Michigan Journal of International Law 23, no. 2 (2002), pp. 265340Google Scholar.

4 Generally, a trend toward a more dynamic interpretation of the nexus clause has been noted. Rather than sticking to a “fixed-list” approach, the nexus clause is interpreted as an “anti-discrimination” clause, more generally, that is capable of subsuming various forms of discrimination, not limited to persecution based on race, religion, nationality, political opinion, or membership of a specific social group. Specifically, the latter has been interpreted widely to include other forms of discriminatory persecution, such as gender-, age-, or disability-based persecution. See Hathaway, James C. and Foster, Michelle, The Law of Refugee Status, 2nd ed. (Cambridge, U.K.: Cambridge University Press, 2014), p. 363CrossRefGoogle Scholar.

5 This is not only something defended (morally) by legal scholars, such as by Hathaway and Foster (ibid., pp. 175–76), but is also something that remains of normative significance to theorists defending the “political account” of refugeehood. Discrimination remains tied to persecution in a way that is normatively significant, even though authors such as Matthew Price (Rethinking Asylum, p. 115) have argued for a deemphasis on and wide interpretation of the nexus clause.

6 UNHCR, Art. 51, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status: Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees (1979; Geneva: UNHCR, 2011), p. 13.

7 Hathaway and Foster, The Law of Refugee Status, p. 183.

8 Betts, Alexander, “Survival Migration: A New Protection Framework,” Global Governance 16, no. 3 (July–September 2010), pp. 361–82CrossRefGoogle Scholar; Betts, Alexander, Survival Migration: Failed Governance and the Crisis of Displacement (Ithaca, N.Y.: Cornell University Press, 2013)CrossRefGoogle Scholar; Carens, Joseph H., The Ethics of Immigration (Oxford: Oxford University Press, 2013)Google Scholar; Gibney, Matthew J., The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge, U.K.: Cambridge University Press, 2004)CrossRefGoogle Scholar; Zolberg, Aristide R., Suhrke, Astri, and Aguayo, Sergio, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (New York: Oxford University Press, 1989)Google Scholar; Larking, Emma, Refugees and the Myth of Human Rights: Life Outside the Pale of the Law (London: Routledge, 2014)Google Scholar; and Dummett, Michael, On Immigration and Refugees (London: Routledge, 2001)Google Scholar.

9 I would like to thank an anonymous reviewer for this suggestion.

10 As opposed to departing from other legal definitions as outlined in the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, the Cartagena Declaration on the Rights of Refugees, or even alternative forms of protection such as the EU's subsidiary protection scheme. The normative foundation for arguing for (but not limited to) some aspects outlined in these conventions can be found in humanitarian accounts of refugeehood rather than in defenses of a “political picture” of refugeehood.

11 A second caveat: This should also not be understood as an attempt to resuscitate a long-discredited distinction between political refugees and economic migrants. The discourse in refugee studies has proven that the two sides of the distinction are not mutually exclusive. This should be clear as soon as one recognizes that economic operations can be politically instrumentalized. In the literature on refugee law, these then appear as persecution through economic means. See Foster, Michelle, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge, U.K.: Cambridge University Press, 2007)CrossRefGoogle Scholar. Equally, the article does not seek to question the distinction itself. Some theories defending open borders have argued that the refugee concept becomes superfluous in a world in which everyone ought to have the right to migrate freely. See Chandran Kukathas, “Are Refugees Special?,” in Sarah Fine and Leah Ypi, eds., Migration in Political Theory: The Ethics of Movement and Membership (Oxford: Oxford University Press, 2016), pp. 249–68. I will not engage in the debate on whether this is correct or not. There are good arguments to be made in favor of justifying open borders. Yet, I believe this to constitute a different debate than that on refugeehood, as these debates depart from different starting points. The debate on refugeehood begins from the nonideal starting point of the world being carved up into states. This is a starting point that assumes that states themselves reject the view of all-encompassing free movement but make an exception for refugees who are seen as being owed something that other migrants are not. We can and should question this presupposition, of course. Yet, doing so would tell us very little about a potentially more modest goal—of questioning whether the conceptualization of refugeehood should undergo change and asking states to reconsider a concept to which they have already subscribed.

12 Carens, The Ethics of Immigration; and Gibney, The Ethics and Politics of Asylum.

13 Zolberg et al., Escape from Violence.

14 Shacknove, Andrew E., “Who Is a Refugee?,” Ethics 95, no. 2 (January 1985), pp. 274–84CrossRefGoogle Scholar; Gibney, The Ethics and Politics of Asylum; Betts, “Survival Migration: A New Protection Framework”; Betts, Survival Migration: Failed Governance and the Crisis of Displacement; and Carens, The Ethics of Immigration.

15 Here it seems fair to note that there are notable differences between the various ostensibly “political accounts.” Nonetheless, I believe they can still be grouped together. The condemnatory function of asylum is, for instance, not discussed or shared by all defenders of the political account of refugeehood. Specifically, Price argues for the centrality of the communicative function of condemnation that asylum plays. See Price, Rethinking Asylum; but also Durieux, Jean François, “Three Asylum Paradigms,” International Journal on Minority and Group Rights 20, no. 2 (2013), pp. 147–77CrossRefGoogle Scholar. This is backed by more realist interpretations in international relations regarding refugeehood, even though they do not advance normative arguments. See Adamson, Fiona B. and Tsourapas, Gerasimos, “Migration Diplomacy in World Politics,” International Studies Perspectives 20, no. 2 (May 2019), pp. 113–28CrossRefGoogle Scholar, academic.oup.com/isp/article/20/2/113/5253595. Others, such as Max Cherem and Matthew Lister, do not discuss the communicative aspect of providing asylum. I include it here as an additional point that the political picture of refugeehood can but has not always made, yet has been recognized as relevant to the political account generally, and that raises an interesting aspect of asylum worth discussing. See Owen, David, What Do We Owe to Refugees? (Cambridge, U.K.: Polity Press, 2020), pp. 6465Google Scholar.

16 Cherem, “Refugee Rights”; Lister, “Who Are Refugees?”; and Price, Rethinking Asylum.

17 Price, “Persecution Complex”; Cherem, “Refugee Rights,” pp. 190–92; and Lister, “Who Are Refugees?,” p. 660. David Owen, “Differentiating Refugees: Asylum, Sanctuary and Refuge,” in The Political Philosophy of Refuge (Cambridge, U.K.: Cambridge University Press, 2019), pp. 19–38, at p. 21.

18 Lister, “Who Are Refugees?”; Cherem, “Refugee Rights,” pp. 194–95; and Price, “Persecution Complex,” p. 443; Price, “Politics or Humanitarianism?,” pp. 295, 308–10. Owen, “Differentiating Refugees,” p. 31; and Owen, What Do We Owe to Refugees?, p. 64.

19 Cherem, “Refugee Rights,” pp. 191–92; and Lister, “Who Are Refugees?,” p. 660. Sarah Song, Immigration and Democracy (New York: Oxford University Press, 2019), p. 120.

20 Owen, What Do We Owe to Refugees?, pp. 5, 54–55; and Cherem, “Refugee Rights.”

21 Owen, What Do We Owe to Refugees?; and Owen, “Differentiating Refugees.”

22 Lister, “Who Are Refugees?,” p. 660; Felix Bender, “Enfranchising the Disenfranchised: Should Refugees Receive Political Rights in Liberal Democracies?,” Citizenship Studies 25, no. 1 (2021), pp. 56–71; and Reuven Ziegler, Voting Rights of Refugees (Cambridge, U.K.: Cambridge University Press, 2017).

23 Asylum functions, then, not only as a condemnation of other states’ political regimes but also reflects the values of the regime that grants asylum. See Durieux, “Three Asylum Paradigms.”

24 Price, Rethinking Asylum, pp. 69–95; Price, “Persecution Complex,” p. 443; Price, “Politics or Humanitarianism?,” pp. 308–10; and Owen, What Do We Owe to Refugees?, p. 64.

25 Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, 1983), p. 45.

26 Ann E. Cudd, Analyzing Oppression (Oxford: Oxford University Press, 2006); and Iris Marion Young, Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990), pp. 39–65.

27 Robert A. Dahl, On Democracy (New Haven, Conn.: Yale University Press, 1998), p. 85.

28 Anna Lührmann, Marcus Tannenberg, and Staffan I. Lindberg, “Regimes of the World (RoW): Opening New Avenues for the Comparative Study of Political Regimes,” in “Why Choice Matters: Revisiting and Comparing Measures of Democracy,” special issue, Politics and Governance 6, no. 1 (2018), pp. 60–77.

29 The terms “autocratic,” “authoritarian,” and “politically oppressive” will be used interchangeably to describe these types of regimes throughout this article.

30 Erica Frantz, “Autocracy,” in Oxford Research Encyclopedias, last updated September 29, 2021, oxfordre.com/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-3; and Bruce Bueno de Mesquita, Alastair Smith, Randolph M. Siverson, and James D. Morrow, The Logic of Political Survival (Cambridge, Mass.: MIT Press, 2003).

31 Wooyeal Paik, “Authoritarianism and Humanitarian Aid: Regime Stability and External Relief in China and Myanmar,” Pacific Review 24, no. 4 (2011), pp. 439–62. Of course, this means that humanitarian aid is not always rejected. Especially in regimes that do depend on the well-being of their population (regimes whose legitimization strategy for political survival is based on electoral mandates or economic development, for instance), humanitarian aid may be accepted. Yet, as I will discuss further in the sections that follow, these forms of aid usually support the political regime in question, too. They contribute to the political survival of autocratic states, contradicting the purpose of condemning (those same) refugee-generating states.

32 Stephen Kosack, “Effective Aid: How Democracy Allows Development Aid to Improve the Quality of Life,” World Development 31, no. 1 (January 2003), pp. 1–22; Mina Baliamoune-Lutz, “Foreign Aid Effectiveness,” in Kenneth A. Reinert, ed., Handbook of Globalisation and Development (Cheltenham, U.K.: Edward Elgar, 2017), pp. 373–92, at pp. 385–86; Todd Moss, Gunilla Pettersson, and Nicolas van de Walle, “An Aid-Institutions Paradox? A Review Essay on Aid Dependency and State Building in Sub-Saharan Africa” (Working Paper No. 74, Center for Global Development, January 2006); Stephen Knack, “Does Foreign Aid Promote Democracy?,” International Studies Quarterly 48, no. 1 (March 2004), pp. 251–66; and Simeon Djankov, Jose G. Montalvo, and Marta Reynal-Querol, “The Curse of Aid,” Journal of Economic Growth 13, no. 3 (September 2008), pp. 169–94.

33 Kosack, “Effective Aid,” pp. 12–13.

34 Ibid.; and Baliamoune-Lutz, “Foreign Aid Effectiveness.”

35 Hathaway and Foster, The Law of Refugee Status, pp. 175–76; and Hugo Storey, “Armed Conflict in Asylum Law: The ‘War-Flaw,’” Refugee Survey Quarterly 31, no. 2 (June 2012), pp. 1–32.

36 The “Convention Relating to the Status of Refugees” outlines five reasons (race, religion, nationality, membership of a particular social group, and holding a particular political opinion) for which persecution must have occurred. See UNHCR, “Convention Relating to the Status of Refugees.” More recent legal scholarship has interpreted the “membership of a particular social group” ground to include persecution based on sexual orientation and gender identity, while others have even understood it as encompassing any form of discrimination. The view that takes persecution as a shorthand for discrimination remains, however, contested. See T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group,’” in Erika Feller, Volker Türk, and Frances Nicholson, eds., Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge, U.K.: Cambridge University Press, 2003), pp. 263–311; and Guy S. Goodwin-Gill, “Judicial Reasoning and ‘Social Group’ after Islam and Shah,” International Journal of Refugee Law 11 (1999), pp. 537–43. In legal practice, it is often interpreted significantly more narrowly. Even in its most broad interpretation, however, a clear nexus between persecution and discrimination must exist for harm to count as relevant for claiming refugee status. See Hathaway and Foster, The Law of Refugee Status, pp. 175–76, 363; and Aleinikoff, “Protected Characteristics and Social Perceptions.’”

37 Felix Bender, “Refugees: The Politically Oppressed,” Philosophy & Social Criticism 47, no. 5 (June 2021), pp. 615–33.

39 Paik, “Authoritarianism and Humanitarian Aid,” p. 448. See also a court case decided on Haitians fleeing the economic consequences of dictatorial rule: Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980).

40 Amartya Kumar Sen, “Democracy as a Universal Value,” Journal of Democracy 10, no. 3 (July 1999), pp. 3–17.

41 Jean Drèze and Amartya Sen, Hunger and Public Action (Oxford: Oxford University Press, 1989), p. 210.

42 Amartya Sen, “Development: Which Way Now?,” Economic Journal 93, no. 372 (December 1983), pp. 745–62, at p. 757.

43 Paik, “Authoritarianism and Humanitarian Aid.”

45 Christian Davenport, “State Repression and the Tyrannical Peace,” in “Protecting Human Rights,” special issue, Journal of Peace Research 44, no. 4 (July 2007), pp. 485–504.

46 Christian Davenport, “State Repression and Political Order,” Annual Review of Political Science 10 (June 2007), pp. 1–23.

47 Emily Hencken Ritter and Courtenay R. Conrad, “Preventing and Responding to Dissent: The Observational Challenges of Explaining Strategic Repression,” American Political Science Review 110, no. 1 (February 2016), pp. 85–99.

48 Ibid.; and Tanneberg, Dag, The Politics of Repression under Authoritarian Rule: How Steadfast Is the Iron Throne? (Cham, Switzerland: Springer, 2020), p. 21CrossRefGoogle Scholar.

49 Escribà-Folch, Abel, “Repression, Political Threats, and Survival under Autocracy,” International Political Science Review 34, no. 5 (November 2013), pp. 543–60CrossRefGoogle Scholar, at p. 546; and Mesquita et al., The Logic of Political Survival, p. 349.

50 Davenport, “State Repression and the Tyrannical Peace,” p. 487; Christian Davenport, State Repression and the Domestic Democratic Peace (Cambridge, U.K.: Cambridge University Press, 2007), pp. 47, 49; and Tanneberg, The Politics of Repression under Authoritarian Rule, pp. 3–4, 19–28; Others differentiate between high- and low-intensity repression. See Lucan A. Way and Steven Levitsky, “The Dynamics of Autocratic Coercion after the Cold War,” in “Democratic Revolutions in Post-Communist States,” special issue, Communist and Post-Communist Studies 39, no. 3 (September 2006), pp. 387–410.

51 Davenport, State Repression and the Domestic Democratic Peace, p. 77.

52 Ritter and Conrad, “Preventing and Responding to Dissent,” pp. 87–88.

53 Escribà-Folch, “Repression, Political Threats, and Survival under Autocracy”; and Davenport, State Repression and the Domestic Democratic Peace, p. 47.

54 Davenport, State Repression and the Domestic Democratic Peace, p. 81.

55 Ibid., p. 49.

56 Hathaway and Foster, The Law of Refugee Status, ch. 2.

57 Note that this problem does not occur in all instances regarding persecution based on political grounds. After all, the present definition includes persecution originating from nonstate actors and cases in which grounds (such as political opinion) are imputed by the persecutor, rather than actually held by the persecuted.

58 The terms “innate and immutable characteristics” were defined in the seminal case In Re Acosta, tried in the United States, and have informed the dominant view of the international community in interpreting the text of the Geneva Convention Relating to the Status of Refugees. The approach is applied in major common law countries such as the United States, the U.K., Australia, and New Zealand. See Talia Shiff, “Revisiting Immutability: Competing Frameworks for Adjudicating Asylum Claims Based on Membership in a Particular Social Group,” University of Michigan Journal of Law Reform 53, no. 3 (May 2020), at p. 570, repository.law.umich.edu/mjlr/vol53/iss3/3/.

59 Hathaway and Foster, The Law of Refugee Status, pp. 407–9.

60 Smith, Peter J., “Suffering in Silence: Asylum Law and the Concealment of Political Opinion as a Form of Persecution,” Connecticut Law Review 44, no. 3 (February 2012), pp. 1021–55Google Scholar.

61 Smith, Isaac T. R., “Searching for Consistency in Asylum's Protected Grounds,” Iowa Law Review 100 (2015), pp. 18911915, at p. 1899Google Scholar.

62 This is, of course, something that such a view intends to avoid. See Hathaway and Foster, The Law of Refugee Status, p. 117.

63 Note, again, that not all theories included in the ostensibly political account argue for this. It is, however, an important argument brought forward in the attempt to defend the political picture of asylum and hence deserves discussion as part of it.

64 Owen, What Do We Owe to Refugees?, p. 64; Owen, “Differentiating Refugees”; Price, “Politics or Humanitarianism?”; Price, “Persecution Complex”; and Durieux, “Three Asylum Paradigms.”

65 Price, “Politics or Humanitarianism?”; and Price, “Persecution Complex.”

66 Price, “Persecution Complex,” p. 443.

67 Price, “Politics or Humanitarianism?,” pp. 294–95.

68 Price, “Persecution Complex,” p. 444.

69 Price, “Politics or Humanitarianism?,” p. 310.

70 Lister, “Who Are Refugees?,” see esp. p. 655. See also Cherem, “Refugee Rights” for a similar argument.

71 Lister, “Who Are Refugees?,” pp. 660–61.

72 Cherem, “Refugee Rights,” pp. 193–95.

73 Mathias Czaika and Constantin Reinprecht, “Drivers of Migration: A Synthesis of Knowledge” (Working Paper No. 163, International Migration Institute, April 2020); and Schewel, Kerilyn, “Understanding Immobility: Moving beyond the Mobility Bias in Migration Studies,” International Migration Review 54, no. 2 (June 2020), pp. 328–55CrossRefGoogle Scholar.

74 Cherem, “Refugee Rights,” pp. 192–95; and Lister, “Who Are Refugees?”

75 A number of different policies matter in determining the eventual “costs” of hosting refugees. These range from settlement policies, which significantly determine the economic performance of refugees for decades to come (and thus also the costs), all the way to policies regulating labor market access (including the recognition of diplomas and other training). See Fasani, Francesco, Frattini, Tommaso, and Minale, Luigi, “(The Struggle for) Refugee Integration into the Labour Market: Evidence from Europe,” Journal of Economic Geography 22, no. 2 (March 2022), pp. 351–93CrossRefGoogle Scholar; and Roger Zetter and Héloïse Ruaudel, Refugees’ Right to Work and Access to Labor Markets—An Assessment, Part I: Synthesis (Washington, D.C.: KNOMAD, September 2016).

76 We might consider here the apparent ability of states to accommodate millions of people on the move in some cases, while they cite resource scarcity (be it as a matter of political will or economic costs) as a reason for rejecting others. It becomes more and more apparent that the limits that states proclaim are matters of discretion. States in the Global North can accommodate many more refugees than they currently do. Referring to self-set limits for protecting refugees shows us relatively little about the capacities that states actually possess.

77 Most refugees are, in fact, hosted by comparatively poor countries. Currently, Turkey alone hosts more refugees than all EU member states combined. For recent figures, see “Trends at a Glance,” Global Trends: Forced Displacement in 2018, UNHCR, www.unhcr.org/globaltrends2018/. Additionally, the financial costs of hosting refugees may be far less than commonly assumed. Joakim Ruist (“The Fiscal Aspect of the Refugee Crisis,” International Tax and Public Finance 27, no. 22 [December 2019], pp. 478–92) shows that if the EU were to receive all refugees currently residing in Africa and Asia, the average annual fiscal cost over the lifetime of these refugees would be, at most, 0.6 percent of the EU's GDP.

78 Lister, “Who Are Refugees?,” p. 660.