Review of Chapter 1. by Sune Lægaard

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Here is the review of Chapter 1. “The Moral Significance of the Refugee Regime” by Sune Lægaard.

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“Chapter 1: The Moral Significance of the Refugee Regime

In this chapter of Refugees and the Ethics of Forced Displacement, Serena Parekh sketches the existing refugee regime, the role of encampment within this regime and the received moral justifications for this way of handling refugees.

The refugee regime

The core elements of the existing refugee regime is the UN Convention and Protocol Relating to the Status of Refugees and the United Nations High Commissioner for Refugees (UNHCR) (p. 20). The refugee regime in practice operates with three “solutions” to refugee situations. One is repatriation, i.e. that refugees are able to return to their country of origin and resume a life there. Another is integration in the country they have fled to, which is usually a neighboring country. A third is resettlement in a third country, usually in Western Europe or North America.

The strongest norms of the refugee regime is the norm of non-refoulement enshrined in the Refugee Convention (p. 21). This requires states not to return refugees if this places them in danger. In practice this means that states have a derivate adjudicative duty to assess whether people arriving on their territory and claiming asylum are in fact refugees, i.e. whether they live up to the conditions for refugeehood such as being outside the borders of their state due to fear of persecution. This norm is so strong that most states try to conform to it. This means that other possible duties, i.e. a state’s duties to refugees outside its own territory, are much weaker and much more unclear – to the extent that some even deny the existence of such duties. The refugee regime accordingly has no fixed rules for duties to refugees on other states’ territories, e.g. for the provision of funding, which is accordingly often viewed as a purely humanitarian and supererogatory act.

This asymmetry of duties in the existing refugee regime leads to some perverse effects, which Parekh noted in several places (e.g. pp. 21, 23, 26 and 37). While states acknowledge a duty to accept and resettle genuine refugees, the asymmetry means that they at the same time can adopt what Matthew Gibney called “non-arrival measures”, such as visa requirements and carrier sanctions, which effectively prevent refugees from arriving on their territory and thereby triggering the duty of non-refoulement. Therefore, Western States can – within the norms governing the existing refugee regime – effectively prevent refugees from reaching their own territories and thereby avoid contracting the strong duties to accept and resettle them. The outcome of this situation is that almost all displaced persons and refugees in the world (which amount to almost one percent of the world’s population, cf. p. 17), are concentrated in the Global South (p. 22).

The moral justification for repatriation

Even though the regime operates with three solutions to refugee situations, Parekh explains how repatriation is considered the most preferable one. There are obvious reasons why states would prefer refugees to return to their country of origin (p. 25). The very number of refugees can be costly to handle, refugees are often culturally different from the population of receiving countries in ways that might be problematic, and the very phenomenon of refugees challenges the assumed sovereignty of states to decide themselves about entry to their territory. Parekh rather stresses a moral justification for preferring repatriation. This justification is based on assumptions about moral responsibility and the morally relevant interests of refugees and runs more or less like this:

  1. States ought to be held morally responsible for fulfilling their duties to secure the human rights of their own members
  2. Refugees have a right to live in their own national and political communities
  3. Repatriation of refugees is the only way to secure
  4. a) that states are held morally responsible for fulfilling their duties to secure the human rights of their own members, and
  5. b) that refugees can live in their own national and political communities
  6. Therefore repatriation is the morally preferable solution to refugee situations

Given that this is a widespread understanding within the existing refugee regime, it becomes easier to understand two things. One is the noted policy of western states to adopt non-arrival measures. This now seems to have a moral basis in that the ultimate aim should be to return refugees to their country of origin rather than to resettle them. Non-arrival measures can therefore be presented as, in some sense, in the interest of refugees.

Encampment

The other feature of the existing refugee regime illuminated by this moral justification is the phenomenon of encampment, which is the central issue of Parekh’s book. The fact that 40% of the people under UNHCR responsibility live in camps (p. 17) can be made sense of in light of this moral justification. Parekh draws attention to how the three official “solutions” of repatriation, integration and resettlement are in fact not the only ones; in practice, and because repatriation is the preferred solution, a fourth option, namely containment in camps, has become the de facto long-term solution for many refugees (p. 18). In extension of the moral justification sketched above, Parekh’s exposition of the rationale for this state of affairs can be reconstructed like this:

  1. Repatriation is more likely if refugees are not integrated or resettled, but are rather kept in camps
  2. Therefore it is morally preferable to keep refugees in camps rather than to integrate or resettle them

From this perspective, which Parekh argues is the official perspective of the existing refugee regime, encampment is a good thing, since it is a necessary precondition for the ultimate goal of repatriation. Refugee camps are assumed to be a good thing – and at the same time to be the most efficient way of distributing aid to refugees.

Parekh challenges this by laying out the problems attendant on the phenomenon of encampment. Refugee camps are first of all a very special space distinct from ordinary political community (p. 29). Life in camps is precarious, since it is intended to be temporary and exceptional rather than permanent; it is characterized by an absence of a meaningful present, since everything is about the past loss of the home and the desired future return; and it is invisible in the sense that camps are often located at a remove from the rest of society. Even though camps are located within the territory of a state, they are often exceptional legal spaces where refugees lack the legal standing of other members of society and where no authority enforces law or protects rights. Because the point of camps is to contain refugees in a way making repatriation possible, camps limit the rights of refugees, who have restricted freedom of movement, no right to seek employment and are outside the rule of law (p. 32). In addition to these constitutive features of encampment, but as a not surprising effect of them, life in camps is characterized by widespread rights violations, especially sexual violations of women. Parekh convincingly presents the extent of sexual violations and how these must be considered more or less inherent features of encampment, precisely due to the constitutive features of life in camps (pp. 33-36).

Rejecting the moral justification for encampment

Parekh’s main aim is to draw attention to the fact that encampment has become the de facto long-term solution of refugee situations and to argue that encampment is inherently unjust because of the rights violations attendant on life in camps. In extension of the noted moral justification for repatriation and encampment noted above, Parekh’s main targets can be summed up as these two claims:

  1. Encampment is temporary and exceptional, so the moral preferability of eventual repatriation and the necessity of encampment as a means to this end trumps concerns for refugees’ human rights during encampment
  2. Encampment is furthermore the most economically efficient way of delivering aid to refugees

These two claims are implicitly or explicitly grounds for the acceptance of the present state of affairs in the sense that they are necessary assumptions if the present regime is to be morally acceptable.

Against this defense of the status quo, Parekh’s main criticism of encampment proceeds by rejecting 7. She does this on the grounds that

  • encampment is in fact often not temporary, but last an average of 17 years
  • encampment leads to systematic violation of refugees’ human rights that cannot be justified with reference to the necessity of encampment as a means for eventual repatriation, because
  1. encampment is in fact not necessary as such a means, and
  2. the violations are in any case so gross that the goal of repatriation cannot trump them.

This means that she indirectly questions both the moral and the empirical elements of the underlying moral justification for encampment (i.e. 1-6 above). She furthermore relies an Alexander Betts’s arguments to question the supportive argument 8 about economic efficiency and to draw attention to feasible alternatives to encampment (pp. 42-43).

The moral upshot

On the level of moral justifications, the rejection of the noted moral justification for encampment means that we need to address encampment anew, especially the constitutive features and the attendant negative effects, because the rejected justification no longer provides an excuse for ignoring these injustices. This means that we have to consider what moral duties states might have regarding refugees who are not yet repatriated, integrated or resettled, and who are consequently between states. At this stage, Parekh merely notes that this is a live issue – which duties states might have regarding these refugees is the subject of the rest of the book.

One question to consider is how such a discussion should proceed. Parekh has convincingly presented how the actually existing refugee regime leads to an acceptance of encampment. However, this might be considered a flaw of implementation rather than a flaw in the values supposed to underlie the refugee regime. Even though the institutionalization of these values has turned out to have perverse effects, one might still think that the values themselves, e.g. as expressed in the Refugee Convention and similar human rights documents, are along the right lines. Such an argument would of course need to proceed from an interpretation of what the values underlying the refugee regime are and them come up with a proposal for a better way of implementing them.”

2 responses to “Review of Chapter 1. by Sune Lægaard”

  1. Serena Parekh says:

    Thanks very much to Sune for the excellent summary. The question raised at the end of it is an important one: are the values of the refugee regime worth endorsing, even though their implementation has led to negative consequences? Yes and no. There are certainly many values inherent in the system that are worth endorsing such as non-refoulement and the hospitality many countries have shown in resettling refugees. However, it is undoubtedly also a system that was set up to protect states from refugees, and so whenever there is a conflict, state sovereignty prevails over the rights of refugees. I’m not sure this is a value that is always worth endorsing. I agree that we would need to really think through what the values are that underlie the refugee regime before we can decide if we need a better method of implementation or a new set of values.

    Concerning the point Kasper made:
    I ultimately end up saying that camps must be improved if we are going to continue to use them as the de facto solution to refugees. They would need to be improved in ways that are not just materially better, but allow refugees the kind of political agency and economic integration that is so important. The question of security is an interesting one: some scholars think that camps by their nature encourage violence against women and there is no reform that could be done to adequately protect women. If this is true, it would seem that in some cases, security would require some other form of ‘temporary’ protection outside of camps.

  2. lippert says:

    Thanks Sune for an excellent precis and thanks Serena for a excellent book on a very important topic! One question that struck me is this: presumably, refugee camps could be improved. Hence, at least at this stage it is not clear whether states have a duty to do so or whether states have a duty to replace camps with other measures, e.g., resettlement. Perhaps the argument is going to be that (realistically speaking) camps can only be marginally improved — offhand, however, at least some of the problems mentioned, e.g. sexual violence, seem problems that could be addressed fairly easily — or (realistically speaking) that the costs involved in improving them relative to the benefits for refugees is lower than alternatives or some third line of argument, which I am excited to see what might be.

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