The different treatment of Ukrainian refugees in Europe, in comparison with other groups of refugees, has been the object of much debate recently: Is the higher willingness to welcome refugees from Ukraine in comparison to those from African or Middle Eastern states due to the geographic proximity? Does it relate to the circumstances of the war that affects Europe more immediately than other military conflicts?

There are legal factors to the different treatment, especially the fact that Ukrainian citizens already enjoyed visa-free travel in the Schengen states for up to ninety days, which meant that crossing the border and entering the European Union was possible for all those in possession of a passport. Yet beyond the legal situation, the political reaction clearly differed. European Union member states quickly decided to activate, for the first time ever, the Temporary Protection Directive.Footnote ¹ And the public support for refugee reception, at least in the first months, was exceptionally high, with widespread civil society initiatives.

Witnessing the reception of Ukrainian refugees, some commentators have stressed the positive example that should inform refugee protection more broadly, while others have expressed criticism about the inequality of treatment. What is clear is that instances of discrimination (Akinwotu & Strzyżyńska, Reference Akinwotu and Strzyżyńska2022) at the borders are inacceptable. More intricate is the question if the different treatment of refugee groups is justified. Some have argued that it reflects the role of racism in the perception of the war and in the attitude toward refugees (Połońska-Kimunguyi, Reference Połońska-Kimunguyi2022; Ramasubramanyam, Reference Ramasubramanyam2022). Others have called the reference to Ukraine being in the direct neighborhood of the European Union a “fallacy of geographic proximity” (Lacy & van Houtum, Reference Lacy and van Houtum2022).

This is but one recent example of discussions about the legitimate response of states to different groups of forced migrants and, more generally, about conditions for a legitimate regime of international protection. A core aspect of these debates is the role of geographic proximity. Is the proximity of refugees’ places of origin a legitimate criterion for different access to, and levels of, protection? The role of geographic proximity is a familiar object of debate in refugee law also from another angle: The basic rule of nonrefoulement is interpreted by several states to only apply if the refugee arrives directly from the state they flee from. Together with visa policies and carrier sanctions, this has limited protection obligations largely to neighboring states of refugees’ places of origin. This restrictive interpretation of nonrefoulement through the safe third country principle is criticized as harming the overall function of the international protection regime.Footnote ² It leads to problems of responsibility-sharing among states and contributes to increasingly hostile conditions for those seeking protection.

Here, too, the legitimate role of proximity is at stake: Is proximity a workable criterion for distributing responsibility among states? Can such restrictive interpretation of nonrefoulement be reconciled with the overall goal of an effective protection system? Whereas the debate about Ukrainian versus other refugees concerns the legitimacy of more favorable treatment, the debate around the scope of nonrefoulement concerns the legitimacy of states seeking to limit their obligations.

Against the background of these debates, the present contribution seeks to systematically explore the role of proximity and arguments about its legitimacy. The first part analyses how physical proximity of a state of origin and of a person’s location matter in international refugee law and in human rights law regarding refugees. It observes how states have increasingly narrowed down obligations in interpreting refugee law, and how de facto the ability to “come into proximity” of a host state is often decisive for persons’ access to protection. In a second part, the chapter then asks about the conditions for claiming and enforcing rights. Rights guarantees are object of constant processes of interpretation, especially so rights at the border. The scope of state obligations toward forced migrants is continuously contested, and even where rights are recognized, it is difficult to hold states accountable for violations. The physical location of claimants affects those conditions of making rights effective.

Overall, the first two parts show that proximity is significant for migrants’ rights to international protection and underline how this role of proximity bears problematic effects on the system. A third part turns to considerations about the legitimacy of the proximity criterion. Proximity can be, at its basis, a reflection of the concrete link that assigns universalist obligations to particular states. This requirement of a concrete link will be hard to forego in a world structured by territorial political communities and limited freedom of movement. Yet proximity is by far not the only possible way of establishing a concrete connection. For a viable system of protection, states must base their responsibility on these different forms of concrete links. The role of proximity does not have to be negated entirely, as long as it is coupled with effective access to territory and protection, and complemented with other bases for state obligations, taking into account links of causation and refugees’ explicit choices.

1 How Proximity Impacts Protection: International Refugee Law and Human Rights Law

International refugee law and human rights law operate as exceptional constraints to states’ otherwise discretionary rules on admitting noncitizens. We can call these rules the law of international protection, which includes foremost the 1951 Geneva Refugee Convention with the 1967 Protocol, and human rights guarantees that are applicable in the context of forced migration. The law of international protection is concerned with rights of persons vis-à-vis states they are not a member of. In that sense, it structurally raises questions about how universalist rights can be translated to obligations of particular states. How to assign or distribute the responsibility for protection is an issue not explicitly regulated: Refugee law and human rights law contain rules about the rights of persons and state obligations toward them, but not about the relationship between states in securing those rights. This distribution of responsibility results indirectly through the application and interpretation of the laws of international protection.

2 Claiming and Enforcing Rights: The Quandary of Distant Claimants

Proximity plays a role not only at the foundation of what is considered a right to protection but also in the conditions for claiming rights. This is true, first, on the level of claiming rights through legal procedures. Access to procedures is not formally dependent on the location of claimants; in practice, however, it often is. Persons whose rights were potentially violated will have difficulties to challenge acts in court if by the very same acts they were physically expelled or returned to another place (Spijkerboer, Reference Spijkerboer2018: 464). It is telling that nearly all significant cases before the ECtHR regarding migrants’ rights in recent years resulted from strategic litigation.Footnote ¹⁹ In other words, it was not migrants themselves who decided to litigate against state agents who had rejected them at the border without procedure, or expelled them from the territory without identification.

Apart from factors such as lacking resources to approach lawyers and to find one’s way through national and international court procedures, there are more specific aspects that complicate the access to court procedures for migrants at distance: A system that requires individual, clearly identifiable claimants to assess the legality of state acts also means a dependence on documentation. In many instances, while the state acts are of continuous and documented nature, it is a major challenge to prove that a specific person was subjected to that treatment at a specific occasion. In the procedure before the ECtHR, this requirement forms part of the condition of victim status. Proving their presence at a specific time and incident is often difficult for those who by the acts in question were removed to another place.

Notably, distance also affects the processes of claiming rights politically.Footnote ²⁰ In scholarship on the foundation of rights, often centered around the Arendtian notion of the “right to have rights,” this role of proximity has remained largely unaddressed. In recent years, there have been important contributions underlining the role of political struggles for human rights, especially in the context of migration. These contributions sought to explain how universal rights remained precarious despite the existence of international human rights treaties. They shifted the focus from a discussion on the foundations of human rights to the practices of political founding (Butler & Spivak, Reference Butler and Spivak2007: 44; Gündoğdu, Reference Gündoğdu2015: 171). Historically, it took political movements and experiences of prior rights violations for the adoption of rights treaties, and for persons gaining recognition as rights holders. Also once achieved, rights require political support to remain effective.

In the context of migration, this focus on “politics on the streets” is particularly relevant given the structural lack of citizenship and therefore a lack of access to institutionalized forms of participation (Johnson, Reference Johnson2014; McNevin, Reference McNevin2011; Ahlhaus, Chapter 15). The political claiming of rights is in that sense linked with questions of visibility and collective action rather than formal vote. However, those political struggles depend, in general, on presence. The idea that rights are founded and claimed through political action tends to rely on a picture of persons already being copresent.

Jacques Rancière has offered an influential conception of the process of becoming a political subject and a subject with rights. According to Rancière, the possibility of politics is grounded in the capacity of speech and appearance. While the persons excluded from political action may first not be recognized as “capable of speech” (Rancière, Reference Rancière1999: 22), through the acts of “claiming rights they have and do not have” (Rancière, Reference Rancière2004: 305), persons constitute themselves as political subjects. His conception relies on a picture of politics as “climbing the scene” (Rancière, Reference Rancière1999: 25). While being of explanatory value, this also raises the question how or whether such processes of gaining rights can take place in constellations of absence and distance.

Migrants claiming rights from afar lack physical presence and to some extent also visibility. Those kept at distance through acts the legality and legitimacy of which stand in question, can rarely address the responsible state organs, and the responsible publics, directly. There are mediated forms visibility, through public media or decentralized ways of communication, that can mitigate the effects of distance. Yet the absence of personal encounter impacts the possibility to claim rights. Martina Tazzioli (Reference Tazzioli2015) has criticized the focus on appearance in public as a “citizen-model of politics.” The model illustrates that copresence, or proximity, is often at the basis of politics (cf. Waldron, Reference Waldron2011). Is the “presence-model of politics” just one that begins from the concrete interpersonal encounter rather than a given definition of what counts as political questions? It is hard to deny, however, that border regulations are genuinely political questions: They determine the delimitation of, and access to, the political community; they concern those included and those excluded. As such, the quandary of rights of those still distant, or removed to distance, remains.

3 Proximity, Affinity, Vulnerability: Grounding Specific Protection Obligations

It has been shown in Sections 1 and 2 that proximity constitutes a central criterion for assigning protection obligations to states, and that this focus on proximity creates problems of distribution and of effective access to protection. In this section, I argue that, nonetheless, proximity should not be condemned as an entirely illegitimate criterion but rather be complemented with other bases for protection obligations. In developing this argument, I look at different approaches from legal and political theory that discuss the basis of protection obligations. Two qualifications are due: First, it is my premise that states regulate immigration and territorial access. There are notable approaches which dispute that states are free to limit territorial access (e.g., Cassee, Reference Cassee2016), but I will not discuss those and start from the situation of controlled international borders and limited mobility rights. Secondly, my interest is not justifications of protection rights as such, but more specifically the discussion about toward whom a state has obligations. In a world of limited mobility, criteria are necessary to link refugees’ rights to protection with obligations of specific states, and my focus is on what those criteria should be.

At the outset, proximity reflects a basic link between persons, and between a person and a state. In that sense, Jeremy Waldron suggests that proximity is the basis on which people form political communities (Waldron, Reference Waldron2011: 2). His account is based on a reading of Kant, holding that human relations, and consequently law and politics, emerge from people sharing a space. To think of rights and politics as based on physical proximity contrasts with accounts of communities based on shared religion or history. Waldron in that sense juxtaposes his conception with a conception of community based on affinity. In practice, most states will have elements of a shared history that connects people, but also major elements of a community based on living together. The vast majority of states allow noncitizen residents to become naturalized after a certain number of years.

This says nothing so far about protection obligations. In Waldron’s understanding, it does not follow from the principle of proximity that states could not control entry: Even for a community built on proximity, self-determination is relevant, and with that, rules on membership and entry (Waldron, Reference Waldron2011: 18). What can be drawn from the understanding of political community as based on proximity is the idea that proximity is an enabler of political relationships.

Looking at an understanding of community that puts more emphasis on affinity, we can turn to the writings of Michael Walzer. His understanding of political communities being based on shared histories and culture also informs his proposition regarding criteria for protection obligations. Walzer stresses that states have obligations toward refugees, detailing some cases of when such obligations arise. At the center of his account stands the notion of “affinity.” First, affinity results – and the most far-reaching duties – from having caused what turned persons into refugees (Walzer, Reference Walzer1983: 49). In addition to this “affinity by causation,” Walzer sees special duties based on ideological as well as ethnic affinity toward persons in need of protection. Beyond those relationships of affinity, he recognizes a right to protection, but argues that such right cannot be enforced against particular states (Walzer, Reference Walzer1983: 50). Walzer acknowledges the prohibition to return people once they have found safety.

In Walzer’s account, geographic proximity does not explicitly matter for special obligations to offer protection. While he includes the principle of nonrefoulement, he does not primarily envisage a system where refugees seek protection by arriving at the border. Instead, he stresses elements of causation, and of ethnic, religious, or ideological affinity.

David Miller offers an alternative conception which puts the choices of refugees and the notion of vulnerability at the center. Miller starts from a collective responsibility that states have toward refugees, a responsibility which is then assigned to particular states. This happens, he suggests, through the acts of refugees themselves, “making a visa application at a distance, […] turning up at the border, or […] entering illegally and then asking for asylum” (Miller, Reference Miller2016: 83). While this may seem arbitrary since it does not distribute responsibility equally among states, Miller argues, it is not unusual that responsibilities arise in a somewhat arbitrary manner. What establishes in his view the specificity of the claim of refugees (unlike other people whose human rights are at risk), and at the same time the claim against a particular state is their act of “making themselves vulnerable” to that state (Miller, Reference Miller2016: 84).

The concept of vulnerability has an established place in the context of refugee protection, for instance regarding prioritized resettlement or relocation, and with view to positive human rights obligations (for a general account Besson, Reference Besson and Burgorgue-Larsen2014: 75). Specific in David Miller’s conception, however, is that it is not the vulnerability as such but the combination with an act of those seeking protection. Refugees have a claim against the state they have approached “by virtue, first, of having established a physical connection to that state and, second, of having become vulnerable to the decision” that the state will take in response (Miller, Reference Miller2016: 85). In that sense, Miller’s approach differs from one that would view vulnerability as the better alternative over the place of arrival for prioritizing refugee claims (e.g., Welfens & Bekyol, Reference Welfens and Bekyol2021). Miller’s conception relies not on a given proximity but on a created connection, which can be based on arrival at the border as well as on an application over distance.

Itamar Mann’s concept of the encounter goes in a similar direction. Mann’s approach is reconstructive; he does not describe an ideal regime but identifies threads of meaning from historical developments and legal cases. His focus is not on legislative bodies or courts in creating law, but on situations of border controls and enforcement, in which human rights are negotiated. In those moments of encounter, especially at sea, Mann (Reference Mann2016: 48) argues, migrants invoke their humanity, together with an act of putting themselves in the hands of those who can save their lives (Mann, Reference Mann2016: 47). Those situations of encounter move the acts from the level of state responsibility to the interhuman level. Mann’s approach binds back the role of physical proximity to the foundational moment of human encounter. Rather than an abstract criterion why a state should have an obligation toward a particular person, proximity is the reason why a person feels a concrete obligation. In that sense, it shows how proximity is decisive – not original proximity of the state of origin but the physical proximity in a moment of encounter. Unlike in Miller’s conception, the act of making oneself vulnerable here does not focus on vulnerability arising from dependence on state decisions but more physically on the dependence on an immediate act. In that sense, the physical proximity plays a role. While many types of encounters can take place without physical proximity – mediated by videos, calls, writing – the resulting link of dependence differs. In that sense, Mann’s reconstruction underlines the role physical encounter can have in making rights and obligations real and robust.

Mann’s account is closer to the existing legal regime, focusing on rights at the border. Yet it shows the link to the political dimension of claims to protection. While these can be legally assessed, they are also politically negotiated, by bringing refugees’ motives and actions into the focus. With this link to the political, the approach relates to Waldron’s principle of proximity. None of the mentioned approaches argues that the proximity of a person’s state of origin should be the main criterion for offering protection. However, Waldron’s general account of proximity as a mode of founding a political community and Mann’s concept of the encounter show how far proximity and contact can be relevant criteria.

The approaches of Walzer and Miller offer cues for which additional criteria could be viable in grounding protection obligations. Neither vulnerability nor affinity seems to be a workable criterion alone, and the authors do not suggest this. In Miller’s account, a person seeking protection choses the contact with a particular state, and this can happen at the border as well as from afar in an embassy. While courts have rejected the derivation of such a system from existing human rights obligations,Footnote ²¹ state legislators would be free to establish procedures to apply for humanitarian visa at embassies. Certainly, the reception of refugees from distance, whether through special visas or through resettlement, is an important addition in an international protection system that strives for better responsibility-sharing between states (Doyle, Reference Doyle2018a; Schmalz, Reference Schmalz2019). Such a system cannot rely solely on financial contributions of states but must create avenues for refugee reception in other than the neighboring states (Aleinikoff & Owen, Reference Aleinikoff and Martin2022: 464).

Finally, Walzer’s notion of “affinity by causation” can be read as a radical idea for advancing reception obligations that account for historical injustices, be they colonial histories, military operations, or involvement in the destruction of the environment. Tendayi Achiume has coined in that connection the idea of “migration as decolonization,” which includes economic migrants (Achiume, Reference Achiume2019). There are increasing efforts to find legal answers to the growing phenomenon of displacement in the context of climate change (McAdam, Reference McAdam, Costello, Foster and McAdam2021). While it is difficult to single out states in that regard, as at least industrialized states share the responsibility for climate change, the focus on causation can nonetheless inform the debate. In that sense, protection obligations based on affinity should be seen as an important addition, which opens up new forms of mobility and responsibility.

Conclusion

International protection is largely guided by a “rule of proximity”: States seek to limit secondary migration and to keep refugees in the countries bordering their country of origin. Human rights obligations toward migrants are limited to those who make it “into proximity” too. The interpretation of jurisdiction has followed an idea of states’ responsibility to begin with physical, rather than administrative or other indirect, control over persons. Distance affects not only the legal rights to protection, but also the capacity to protest against rights violations: Those who were illegally pushed back or denied access often lack the avenues for claiming their rights. Overall, the current restrictions of protection obligations are deeply problematic. Limiting nonrefoulement to states of refugees’ first arrival might be in line with the wording of the 1951 Refugee Convention but it is not in line with the underlying idea of effective protection and a system built on cooperation between states.Footnote ²² Narrow interpretations of human rights standards, some states’ open disregard for international legal rules, and the limited scope of control have given room to frequent violence and impunity at borders.

The picture of the current regime with the rule of proximity at its core is somber. Yet what are alternative criteria for structuring protection obligations in the current world of limited mobility? The chapter has argued in Section 3 that we should not abolish proximity as a criterion for protection altogether. At the outset, the current system is dysfunctional not because it allows persons to claim asylum when reaching the territory, but because it allows states so generously to hinder persons to reach the territory (Benhabib Reference Benhabib2020; Shachar Reference Shachar2020b). In that sense, the concept of seeking protection at the border should be complemented by additional forms of grounding protection obligations. This could happen along an interpretation of jurisdiction that includes forms of indirect control and thereby extends the human rights obligations of states toward migrants. It could happen through legislative acts that introduce access to humanitarian visa at embassies. And it could add causation as a criterion for protection obligations, viewing forced migration as embedded in a global context, in which states have contributed to reasons for flight.