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Unresolved and Unresolvable? Tensions in the Refugee Regime

  • Megan Bradley

Worldwide, growing numbers of refugees are pushed from their homes. At the same time, fewer and fewer are able to access so-called “durable solutions” to their displacement. This has prompted a flurry of efforts to repair the foundering refugee regime. Many such efforts attempt, implicitly or explicitly, to resolve tensions between legal principles, moral duties, and national interests surrounding refugees. As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay questions the drive toward oversimplification that has characterized these debates, recognizing that some such tensions are “baked into” the problem of refugeehood. While debates have typically focused on the obligation to admit refugees, and on “responsibility sharing,” I advance the conversation by exploring how law, morality, and national interests are entangled in efforts to support durable solutions for refugees, focusing on voluntary repatriation. What does recognition of the intrinsic and in some senses irreconcilable tensions in the refugee regime mean for efforts to support solutions? I argue that advancing durable solutions, however imperfect, for refugees does not mean definitively overcoming these tensions, but rather navigating them to identify context-specific opportunities to reposition refugees as full and equal citizens as a critical step toward reducing their precarity.

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This research was supported by the Social Sciences and Humanities Research Council of Canada.

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1 UNHCR, “Global Trends 2017” (Geneva: UNHCR, 2018), p. 2.

2 UNHCR, “Contribution to the Fifteenth Coordination Meeting on International Migration,” February 10, 2017, UN/POP/MIG-15CM/2017/14.

3 See, for example, the World Refugee Council supported by the government of Canada (; Betts, Alexander and Collier, Paul, Refuge: Rethinking Refugee Policy in a Changing World (New York: Oxford University Press, 2017); Cohen, Robin and Van Hear, Nicholas, “Visions of Refugia: Territorial and Transnational Solutions to Mass Displacement,” Planning Theory and Practice 18, no. 3 (2017), pp. 494504; and initiatives promoted by leading experts such as James Hathaway and Alexander Aleinikoff.

4 On this dynamic see, for example, Arendt, Hannah, The Origins of Totalitarianism (New York: Harcourt, 2001); Haddad, Emma, The Refugee in International Society: Between Sovereigns (Cambridge: Cambridge University Press, 2008); and Bradley, Megan, “Rethinking Refugeehood: Statelessness, Repatriation, and Refugee Agency,” Review of International Studies 40, no. 1 (2014), pp. 101–23.

5 See, for instance, Gibney, Matthew, The Ethics and Politics of Asylum (Cambridge: Cambridge University Press, 2004); Orchard, Phil, A Right to Flee (Cambridge: Cambridge University Press, 2014); and Betts, Alexander, Protection by Persuasion (Ithaca: Cornell University Press, 2009).

6 Article 1(A)(2). Geographic and temporal limitations on the refugee definition in the convention are lifted in the protocol.

7 Regional standards such as the 1969 Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa offer broader legal definitions, but these agreements are limited in scope. I use the term “refugee” broadly here, including all those who have been forced from their homes.

8 Hyndman, Jennifer and Mountz, Alison, “Another Brick in the Wall? Neo-Refoulement and the Externalization of Asylum by Australia and Europe,” Government and Opposition 43, no. 2 (2008), p. 250.

9 See, for instance, Carens, Joseph, The Ethics of Immigration (New York: Oxford University Press, 2013); and Benhabib, Seyla, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004).

10 For example, see King, Natasha, No Borders: The Politics of Immigration Control and Resistance (London: Zed Books, 2016).

11 Miller, David, Strangers in Our Midst: The Political Philosophy of Immigration (Cambridge, Mass.: Harvard University Press, 2016); and Walzer, Michael, Spheres of Justice (New York: Basic Books, 1983). To clarify, I do not personally concur with these theorists’ perspectives.

12 Biggar, Nigel, “A Christian View of Humanitarian Intervention,” Ethics & International Affairs 33, no. 1 (2019), pp. 1928.

13 Owing to space considerations, in this discussion I do not address in detail the question of refugees’ states of origin. On this issue, see, for example, Bradley, Megan, Refugee Repatriation: Justice, Responsibility and Redress (New York: Cambridge University Press, 2013).

14 Evans, Gareth, “Introduction,” Ethics & International Affairs 33, no. 1 (2019), p. 15.

15 Cohen and Van Hear, “Visions of Refugia.”

16 Many of the backers of the myriad reform programs floated in recent years are well aware of the depth and complexity of the refugee predicament and the impossibility of definitively resolving tensions between laws, values, and interests surrounding forced migration, to say nothing of tensions and outright conflicts between the diverse moral claims advanced by refugees, states, and different citizenries. Yet such complexities are rarely acknowledged by experts as they strive to make pithy, policy-relevant recommendations.

17 Turton, David, “Forced Migration and the Nation State,” in Robinson, Jenny, ed., Development and Displacement (New York: Oxford University Press, 2002), pp. 1976.

18 Arendt, Origins, p. 267.

19 See, for instance, Bradley, “Rethinking Refugeehood”; and Bradley, Megan, Milner, James, and Peruniak, Blair, eds., Refugees’ Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries (Washington, D.C.: Georgetown University Press, 2019).

20 Haddad, Between Sovereigns.

21 This section draws on Megan Bradley, “Resolving Refugee Situations: Seeking Solutions Worthy of the Name,” World Refugee Council Research Paper (Waterloo: CIGI, 2018).

22 UNHCR Statute, ch. 1, para. 1.

23 UNHCR, “Global Trends 2016” (Geneva: UNHCR, 2017), pp. 3, 24.

24 See, for example, Shacknove, Andrew, “Who Is a Refugee?Ethics 95, no. 2 (1985); Bradley, Refugee Repatriation; and Hovil, Lucy, “Local Integration,” in Fiddian-Qasmiyeh, Elena et al. , eds., The Oxford Handbook of Refugee and Forced Migration Studies (New York: Oxford University Press, 2014).

25 Return may be legally required after the formal revocation of refugee status, following provisions in the 1951 Convention. These provisions are, in practice, rarely applied.

26 Bosniak, Linda, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006), p. 1. From some moral perspectives, enabling refugees to exercise their right of return is all the more important in cases such as the ethnic cleansing of the Rohingya from Myanmar, as this checks the state's power to unilaterally expunge an unwanted group. In such cases, paradoxically, repatriation may be the most preferable option on some moral grounds, precisely when it is riskiest for individual refugees who will unquestionably face hostility upon their return—raising a host of other moral concerns.

27 On the desire of Palestinian refugees to return, and their diverse and complex interpretations of what “return” means, see Allan, Diana, Refugees of the Revolution: Experiences of Palestinian Exile (Stanford: Stanford University Press, 2014), pp. 191212.

* This research was supported by the Social Sciences and Humanities Research Council of Canada.

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
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