Can States have “Special” Duties to Refugees?
I have recently been working on the question of who, out of the vast number of people in the world who cannot meet their basic needs on their own or with the help of their own countries, should be considered “refugees”, and what this status should entitle them to. I think that’s an important question that hasn’t been adequately answered. Here I want to talk about, and gather opinions on, a related but different question. I am here interested in the question of when states have special duties or obligations to particular sets of refugees. (For the sake of the discussion I want to assume that the people in need are legitimately refugees, on whatever standard we want to apply.)
It is helpful to think of our duties to refugees as having two aspects- to provide a safe place of first asylum and non-refoulement or not to return a refugee to a place where he or she faces persecution, and secondly, to provide a “durable solution”, that is, a place where long-term resettlement and access to membership in a society may take place. The two aspects need not be met in the same country, and sometimes should not be, for a variety of reasons. First asylum is often sought in a near-by country, though that is not always the case. My view is that, in general, both of these duties are general in nature- they do or should apply to all states equally, though of course burdens should be shared fairly, according to the abilities of various states. One way to understand this is to think that, in general, refugees are everyone’s problem, and that all states have a duty to do their part.
However, a somewhat different view has long had its proponents, too. On this view, states may, for different reasons, have special duties to particular groups of refugees, and especially strong reasons for taking them in. Michael Walzer presented a view like this in his book Spheres of Justice, for example, where he argued that the U.S. had particularly strong moral reasons to take in Vietnamese “boat people”, as, he held, the U.S. was responsible for these people being refugees in the first place. Walzer also argued that Germany had a special duty to take in ethnic Germans driven out of Eastern and Central Europe after the end of WWII, and that Greece and Turkey had duties to take in Greeks and Turks that each had expelled from their territories. This stands in strong contrast to Walzer’s general view that states should have very strong discretion in setting their own immigration policies. (Walzer seems to give less weight to what I call the general duties to refugees above, though his view isn’t very clear.) On this account, the “special” obligations a state has to some particular group of refugees might over-ride the more general obligations, so that the state has a duty to take on more of a burden than it might otherwise. And, perhaps more controversially, some states might refuse to take on a burden they might have taken on, on the grounds that the state with the “special” relationship- causal, ethnic, or ideological- should bear it.
I find myself conflicted by these arguments, and would be interested to hear what others think. The “causal” argument seems the strongest to me- that if a state is, in the appropriate way, causally responsible for a group of people being made into refugees, the “causing” state has a special duty to grant asylum. The “ethnic” and “ideological” arguments seem much less compelling; at least if they are not covert “causal” claims. This doesn’t mean that states should not see ethnic connection as an extra ground for wanting to help another group, but only that it does not seem to me to be an independent moral ground, or one that grounds an obligation. Furthermore, I am much less convinced that the “special duties” one state might have to refugees can lessen the general duties held by other states, at least in the instance of providing first asylum and respecting non-refoulement, and I worry that emphasizing the “special” duties states may have in certain cases will mostly result in states without a “special” duty shirking their general duties.
Not everyone accepts these “special duties” claims, in even the weaker form I suggest there. Recently at the Volokh Conspiracy blog, for example, Stewart Baker argued that the program put in place to admit refugees from Iraq was “misconceived” and that “we are taking too great a risk in bringing large numbers of Iraqi refugees to the United States whom we cannot vet properly.” (This claim results from 2 out of approximately 50,000 Iraqi refugees having been charged with terrorism related activities.) It seems to me that the US’s causal responsibility for Iraqi refugees is as strong as or stronger than for Vietnamese refugees after the fall of South Vietnam. As anyone who has worked with refugees knows, if the rate of bad actions that exist among Iraqi refugees noted by Baker is enough to make a program a mistake, then nearly every resettlement program will be a mistake. If the causal connection based duty cannot warrant taking on this amount of risk, it is a very weak duty indeed. I can only understand Baker to be arguing that providing protection to Iraqi refugees is supererogatory rather than an obligation, and that “special” duties therefore do not exist.
This is an area where I do not feel like I have a completely firm grasp on the right answer. To some degree this is because “causal responsibility” is a surprisingly difficult notion here, and we quickly end up dealing with subtle matters of casuistry, an area where it is easy to go astray, especially without a large degree of practical experience. I would be very interested to hear from others their intuitions as to when, if at all, states have special duties to particular groups of refugees.