Beyond Persecution: A Moral Defence of Expanding Refugee Status
Christopher D Boom
PhD in Philosophy, Tulane University; JD and LLM (with Distinction) in Transnational Law, Temple University; BA in Philosophy, Loyola University New Orleans. The author is an attorney and a visiting scholar in the Tulane University Department of Philosophy. The author would like to thank Andrew I Cohen, Daniel Tigard, Mikhail Valdman, the editors and the anonymous referees for this journal, and participants at the 2016 London School of Economics Graduate Conference in Political Theory.
© Oxford University Press 2018
Abstract: It is an open secret that many people commonly referred to as ‘refugees’ in popular discourse are not ‘refugees’ within the meaning of the 1951 Convention and 1967 Protocol relating to the Status of Refugees. For a person is only a ‘refugee’ as that term is defined in the Convention and Protocol if, inter alia, he or she flees persecution. In turn, those not fleeing persecution lack a comparably entrenched right under international law not to be forcibly returned to the threats they fled. Given the pressing humanitarian considerations and political tensions created by this aspect of international law, we should question anew whether it is just. The most influential criticism of it has been presented by Andrew Shacknove, who argued that justice demands instead that refugee status be afforded to the broader class of people fleeing serious threats subject to human control. Yet Shacknove’s critics typically argue that his proposal should be resisted because: (1) unlike the persecuted, those facing threats other than persecution can generally be assisted in their own countries; and (2) expanding refugee status would place undue burdens on States, the persecuted, or both. However, this article will demonstrate that neither of these objections justifies refusing to extend refugee status. That is, they do not justify the refusal to extend a comparably entrenched status under international law as is enjoyed by Convention refugees to people fleeing threats other than persecution. Nevertheless, the article further argues that Shacknove’s proposal is itself too limited. Rather than depending on whether the threat one flees is subject to human control, refugee status should depend instead on the severity of the threat one flees and the likelihood that it will materialize if one returns.
- Introduction
When is a person who has fled his or her State in order to avoid some threat in it a ‘refugee’?
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According to the 1951 Convention relating to the Status of Refugees (Refugee Convention),1 as amended by the 1967 Protocol relating to the Status of Refugees,2 a person is a ‘refugee’ only if, among other things, he or she is outside his or her country of origin and has a well-founded fear of being persecuted for an enumerated reason.3 Conversely, if he or she has fled a threat not constituting persecution – for instance, a natural hazard – he or she will not by virtue of this reason qualify as a refugee for the purposes of the Convention.
As such, many people commonly referred to as ‘refugees’ in public discourse do not fall within the Convention definition of a ‘refugee’ and, in turn, are not afforded its protections. Saliently, this includes many of the people involved in the recent ‘refugee crisis’ involving Syria and other countries in the Middle East and North Africa.4 For although many of these people are fleeing persecution (because, for instance, they are part of political dissident movements or are members of oppressed religious minorities), many others are fleeing the indiscriminate threats of armed conflict.5
Meanwhile, a growing number of authors have objected that the Refugee Convention’s definition is too narrow.6 Justice, they have argued, demands that international law recognize a wider class of people as refugees. In his 1985 article, Andrew Shacknove offered what has become the most discussed criticism of the Refugee Convention on this score.7 Rather than being limited to the persecuted, Shacknove argued, justice requires that the status enjoyed by Convention refugees under international law be afforded more broadly to any person fleeing a serious threat subject to human control.
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In the three decades that have passed since Shacknove’s article was published, his proposal has continued to garner many critics.8 They have taken issue with each of his main claims, and have advanced a variety of objections to them.9 Two objections, in particular, are common to virtually all Shacknove’s critics. First, they provide a moral defence of limiting the status enjoyed by Convention refugees under international law to the persecuted on the basis that people fleeing threats other than persecution, but not those fleeing persecution, can generally be effectively protected in their own countries.10 (Call this the ‘In Place’ objection.) Secondly, they provide a moral defence of limiting refugee status to the persecuted on the basis that extending refugee status to the non-persecuted would impose a significant undue burden on States, Convention refugees, or both.11 (Call this the ‘Overwhelmed’ objection.)
This article, while not attempting to defend all Shacknove’s claims, will defend his core claim that justice requires that the status enjoyed by Convention refugees under international law be expanded beyond the persecuted. More precisely, it will be argued that the ‘In Place’ and ‘Overwhelmed’ objections do not morally justify the differing levels of protection afforded by international law to Convention refugees versus people confronting non-persecutory threats with regard to the central incident of refugee status: the right of non-refoulement, or the right not to be expelled or returned.12 Whereas people who fall within the Convention definition of a ‘refugee’ have the right of non-refoulement enshrined expressly in the text of a treaty widely adopted by States, those who flee threats that could not be construed as persecution under any plausible
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definition do not.13 If one flees one’s country out of fear that one will be killed inadvertently by stray gunfire from warring armies, or by a tsunami, or by some other threat that is either not the intentional product of human activities or not the product of human activities at all, one would not enjoy the same degree of protection from removal as a person who falls under the scope of the Refugee Convention.
Even if one is not protected by the Refugee Convention, one might nevertheless fall within the scope of one or more ‘complementary’ (in the European Union, ‘subsidiary’) or related forms of protection which extend a right of non-refoulement to people not protected by the Convention.14 Yet, although these are undoubtedly important and provide protection in critical instances in which the Refugee Convention does not, it is also clear that they do not provide an equivalent level of protection to that afforded by the Convention. For either they do not confer a right of non-refoulement,15 are national or regional schemes rather than ones which are fully international in scope,16 or the
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treaties which underlie them do not confer a right of non-refoulement with a similar degree of clarity as the text of the Convention does,17 or some combination thereof.
In defending the claim that justice calls for the expansion of the status enjoyed by Convention refugees under international law beyond the persecuted, this article thus defends the claim that people fleeing non-persecutory threats should enjoy a fully equal – that is, a comparably entrenched – right to non-refoulement as Convention refugees.18 In particular, it will argue that the ‘In Place’ and ‘Overwhelmed’ objections cannot supply an adequate ethical justification for the fact that at present there is no equivalently explicit and accepted right to non-refoulement under international law for people fleeing non-persecutory threats. Because this understanding of the claim that the scope of the Refugee Convention should be expanded departs from the way some of Shacknove’s critics understand that claim, part 2 of the article begins by clarifying the rationale for understanding it in this way. Parts 3 and 4 then defend the expansion of refugee status so understood against the ‘In Place’ and ‘Overwhelmed’ objections, respectively. Nevertheless, part 5 argues that Shacknove’s proposal itself does not go far enough. Rather than restricting refugee status to those fleeing threats subject to human control, whether or not one should possess the status enjoyed by Convention refugees under international law depends on the severity of the threat one might suffer upon removal by the receiving State and the likelihood that one will suffer it if one is removed. It is argued that this is because the right to non-refoulement is more suitably conceived of as a
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negative right of non-interference than a positive right of assistance.19 Part 6 concludes by showing how conceiving the right to non-refoulement as a negative right provides a deeper ethical case for expanding refugee status. Don't use plagiarised sources.Get your custom essay just from $11/page
Before proceeding, however, it is important to emphasize that, because this article aims to defend a moral claim rather than a new interpretation of the Refugee Convention or a re-conceptualization of the notion of a refugee under customary international law, the term ‘refugee’ is used throughout the article as a matter of convenience. That term is apt in this context because: (a) it is familiarly used in ordinary public discourse indiscriminately to refer both to the persecuted as well as to people fleeing armed conflict, natural hazards, and other non-persecutory threats; and (b) the particular form of protection with which this article is concerned is the kind centrally afforded by international refugee law. As such, nothing of consequence turns on the use of the term here. What is crucial is that the protection at issue – that is, a formally recognized international legal duty of non-refoulement owed between States – should be equally applied to people fleeing similarly severe and likely harms as to those fleeing persecution, regardless of whether this right is understood to be part of international refugee law, international human rights law, or some other category of international law. Should the reader object to this use of the term ‘refugee’ in referring to this broader class of people, he or she is invited to substitute the label of his or her choosing (for example, ‘forced migrants’) in evaluating this article’s argument.20
- Persecution, non-refoulement, and refugee status
Despite the fact that only the persecuted are recognized as refugees within the meaning of the Refugee Convention, the Convention does not itself define the term ‘persecution’. Nor is there any common definition of that term among States.21 In fact, there is not always a common definition of it within States either. For instance, in the United States (US), neither the statute that implements the Refugee Convention (that is, the Immigration and Nationality Act),22 the federal immigration regulations, nor the agency responsible for adjudicating appeals of removal determinations (that is, the Board of Immigration Appeals) has settled on a single definition of the term.23
For present purposes, however, the precise details of any particular definition of ‘persecution’ are unimportant. For unless the term is stretched so far beyond its meaning
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in ordinary language as to be unrecognizable, any plausible definition of it must hold that an instance of persecution is: (1) caused by human beings, and (2) caused to some extent deliberately. Neither natural or impersonal social processes nor non-human animals can engage in persecution, and it would distort the ordinary understanding of the term to think that one could be persecuted wholly by accident.24 Instead, only humans can persecute, and persecution only occurs through purposeful behaviour. Assuming that any plausible definition of persecution will incorporate these requirements, we can ask: is it just that international law affords the status currently enjoyed by Convention refugees only to people fleeing persecution?
As noted earlier, Shacknove presented the most influential negative answer to this question. Justice, he claimed, requires that international law recognize as refugees the broader class of individuals who flee threats subject to human control. Part 5 of this article will further clarify Shacknove’s proposal and its rationale. For now, however, the important thing to notice is that Shacknove’s critics advance two very different sorts of replies in defence of the Convention definition. Specifically, following Matthew Lister,25 such responses can be categorized as being either ‘deep’ or ‘shallow’ defences of the Convention definition. On the one hand, deep defences are those which assert some ‘special connection’ between persecution and refugee status. For instance, Lister cites Matthew Price as offering such a deep defence, as Price conceives of the act of granting asylum as expressing condemnation of persecution, and Price argues that an expression of condemnation is a uniquely fitting response to persecution.26 A more recent deep defence is provided by Max Cherem, who claims that a special concern for persecution is supported by the fact that persecution amounts to an effective repudiation by the State of the persecuted person’s membership in it.27
Although this article will touch on the plausibility of deep defences of the Convention definition – indeed, it will be argued that the persuasiveness of the ‘In Place’ and ‘Overwhelmed’ objections ultimately requires one – it will not say anything directly in response to these or other particular versions of such a defence.28 One reason for this is because they, unlike the ‘In Place’ and ‘Overwhelmed’ objections, are not advanced by most of Shacknove’s critics. A more important reason is because they typically either presuppose a different understanding of what follows from one’s possession of refugee status than what international law is generally understood to recognize, or are expressly not intended to track that understanding.29 In particular, authors who advance deep defences of the Convention definition are often concerned with the
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question of who ought to have a right to so-called ‘durable solutions’: for instance, a right to remain in a new State permanently and, eventually, a right to political membership. Yet, such rights are generally not thought to flow directly from one’s possession of refugee status.30 Instead, the majority view is that international law only affords to the refugee a right, and imposes on States the correlative duty, of non-refoulement.31 In other words, international law only provides refugees with the right not to be expelled or returned to threatening circumstances.
By contrast, the ‘In Place’ and ‘Overwhelmed’ objections offer shallow defences of the Convention definition. Rather than asserting that there is some special connection between persecution and the possession of refugee status, they assert that there are strong practical reasons for international law to only afford that status to the persecuted. Those who advance the ‘In Place’ objection typically hold that both the persecuted and the non-persecuted are equally deserving of having the threats which cause them to flee addressed by the international community.32 They nevertheless insist that because the threats faced by the non-persecuted can generally be addressed in their own countries, whereas the threats faced by the persecuted cannot, refugee status should be limited to the persecuted. Meanwhile, those who advance the ‘Overwhelmed’ objection appeal to the obvious fact that broadening the definition of refugee status would increase the number of individuals who are entitled to protection as refugees, and argue that this would lead to unfair consequences for States, Convention refugees, or both.
As with deep defences of the Convention definition, the ‘In Place’ and ‘Overwhelmed’ objections are sometimes advanced in conjunction with the idea that the possession of refugee status implies a right that one be afforded ‘durable solutions’, such as permanent residence and political membership in a new State.33 With regard to those authors who presuppose this understanding of what is at stake in evaluating whether refugee status should exclusively be linked to persecution, it is readily conceded that we are attempting to answer different questions.34 Yet it is important to notice that not all the authors who press the ‘In Place’ and ‘Overwhelmed’ objections are concerned to justify limiting the extension of a right to permanent residence or political membership to the persecuted. Some explicitly aim instead to also specify the conditions under which individuals ought to have a right under international law to non-refoulement.35 The arguments below thus directly respond at least to this latter group of authors. Moreover, even those who
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conceive of refugee status as incorporating a right to a durable solution do not always limit their appeals to the special considerations involved in granting permanent residency and political membership when they advance the ‘In Place’ and ‘Overwhelmed’ objections.36 The arguments here are thus also relevant to identifying the limits of their reasoning. At any rate, it suffices to support the central thesis of this article to establish that the ‘In Place’ and ‘Overwhelmed’ objections do not justify refusing to extend a comparably protected international legal right to non-refoulement to all people fleeing threats which are similarly severe and likely to materialize as to those fleeing persecution.
Furthermore, there are strong reasons for addressing the issue of which persons justly ought to be recognized as possessing a right to non-refoulement under international law before taking on the related questions of who ought to be recognized as possessing a right under international law to permanent residence or political membership. These latter two questions are very important, but if we are to ask whether the Convention’s conception of refugee status suffices, it is crucial to first narrow our concern to what directly follows from the fact that one holds that status. Indeed, we only reach the issues of when a person fleeing a serious threat has a right to remain in another State permanently or be granted political membership after we have determined that he or she has a right to be in another State in the first place. Moreover, this latter question is a far more pressing one from the perspective of justice, given that the potential moral costs of a wrong answer to it are far more profound.
By contrast, the correlative right and duty of non-refoulement requires that one be allowed to stay in the territory of a foreign State only if and only so long as one cannot be removed to a place of safety.37 Nevertheless, it is important not to overlook the importance of this implication of refugee status. For one’s recognition as a Convention refugee thus does not only confer on a person the privilege of entering and remaining within the territory of another State in fleeing persecution, but the right to do so.38
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Unless certain express exclusions apply,39 if a person is a Convention refugee, a State he or she enters to escape persecution has a duty not to remove the refugee to his or her home country or any other country in which he or she would face a real risk of being persecuted.40 In other words, by virtue of the fact that a refugee has the right not to be returned to persecution, the State thereby lacks the discretion to determine whether or not to remove him or her to persecution. Moreover, by virtue of being a duty enshrined in a treaty, the receiving State is legally bound to other States to exercise non-refoulement, providing it with an independent basis for not removing him or her in addition to any bases provided by its own laws.41 And just as importantly, the Refugee Convention provides this right explicitly, in plain language, leaving no room for reasonable disagreement over the general proposition that States must not remove a Convention refugee to a place where he or she will face a sufficiently high chance of being persecuted. To deny this would require denying the very meaning of the words the Convention uses.
- The ‘ in place’ objection
As clarified in the previous part, the question of whether it is just to limit the status enjoyed by Convention refugees only to the persecuted is to be understood here as identical to the question of whether it is just that people fleeing non-persecutory threats that are similarly serious or likely to materialize as persecution do not currently enjoy a comparably entrenched right to non-refoulement as Convention refugees. Let us turn now to consider whether the ‘In Place’ objection gives us reason to think an affirmative answer to this question is warranted. The ‘In Place’ objection appeals to a general asymmetry in the international community’s ability to effectively help the non-persecuted versus the persecuted in their own countries. Specifically, the core idea underlying this objection is that, whereas the threats confronted by the non-persecuted can typically be addressed while they remain in their countries, eliminating the threat of persecution is far more difficult.42 Moreover, even if and when it is strictly speaking possible to do so, due to considerations of proportionality the international community will often better satisfy the demands of justice by not directly intervening. Lister puts this point nicely:
Direct intervention into the offending State to prevent persecution will very often fail a test of proportionality, in that it would either require those seeking to prevent the harm to put themselves unduly at risk, or else would threaten to cause even more harm to the residents of the offending State than would be prevented. Given this, the only morally acceptable way to discharge our duties in the case of those who fear persecution is to allow them refuge in a safe country.43
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As such, the ‘In Place’ objection purports to show that it is just to reserve refugee status for the persecuted.
Although any general rule will inevitably fail to properly dispose of many cases,44 the asymmetry in the international community’s relative prospects for helping the persecuted versus the non-persecuted in place seems to be a particularly weak basis for determining when a person should possess the right to non-refoulement. Most saliently, it seems likely that the international community will face equal – if not, in some cases, worse – prospects for successfully intervening to stop armed conflict and widespread private violence as it does for persecution, as well as often face the same sorts of proportionality concerns raised by Lister’s remarks quoted in the preceding paragraph. And although it is probably true that armed intervention will usually fail the test of proportionality in eliminating persecution, it is far less clear that boycotts and other non-violent methods of intervening will as well.45
However, for the sake of argument, let us assume that this asymmetry is in fact a reliable one: whereas the non-persecuted can generally be effectively assisted within their own countries, the persecuted cannot. If countries have the duty of (or at least, ought to be) attempting to improve the prospects of people in other States, this has important normative implications. As a matter of sound foreign policy, it would seem that States should aim to help the non-persecuted in their own countries, while reserving nonrefoulement for helping the persecuted.
Still, even if the international community could effectively help the non-persecuted in their own countries, this by no means ensures that it will. Thus, we must consider the question of whether the right and correlative duty of non-refoulement should attach only to persecution in the context of the non-ideal world we actually live in, in which the international community regularly falls far short of reducing non-persecutory threats below a tolerable threshold. Regardless of whether the asymmetry to which the ‘In Place’ objection appeals is reliable, it cannot serve as the basis for restricting refugee status to the persecuted given this important background assumption. Indeed, if people could expect the international community to effectively assist the non-persecuted, it would be odd that so many people have taken issue with the Convention definition to begin with.
Yet perhaps the ‘In Place’ objection might be interpreted differently for present purposes. One might think that, in the long run, the international community would have a better chance of fully satisfying its obligations if people were to shift their time and energy from attempting to expand refugee status towards advocating for the creation of a legal regime which aims to eliminate non-persecutory threats throughout the international community.46 Assuming the asymmetry that the ‘In Place’ objection relies on is sufficiently generalizable, this seems to pose a much more compelling challenge to expanding refugee status. However, this reading of the objection falls prey to the same basic concern as the first, albeit in an admittedly weaker form. For, given the current state of development of international law, it is extremely hard to imagine that the emergence of such a regime is at all likely in the foreseeable future. Although there
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are obviously tremendous political and practical obstacles to realizing a legal regime which could secure safe haven for people fleeing threats other than persecution to the same degree as those fleeing persecution, a far greater amount of coordination, financial resources, and political will would be necessary to create a legal regime that could generally guarantee people around the world protection from war, natural hazards, and other like threats.
Meanwhile, absent a world still more different from the one we live in, even if such a regime were in place, we could not plausibly expect that all non-persecutory threats would in fact be eliminated. Even under ideal foreseeable circumstances, there would inevitably be some cases in which non-persecutory threats would prompt people to flee their States. As such, we must come back again to the question of what ought to be done where international assistance has failed to eliminate some threat to a person.
Two replies seem to be available here to the opponent of extending refugee status to those fleeing non-persecutory threats. The first would be to admit that a right to non-refoulement should apply in such cases, but to insist that no better rule can be formulated which can both adequately address this issue and the asymmetry that under-writes the ‘In Place’ objection. Part 6 of this article will suggest a basis for thinking this line of response is misguided. But for now, notice that the advocate for the Refugee Convention definition could instead take a hard line here and insist that such people are not entitled to an international legal right of non-refoulement, or at least one which is not comparably entrenched. And there may very well be grounds for thinking that, from the standpoint of strict justice, some of these cases do not pose a problem. Take, for example, a case in which international aid would have sufficiently eliminated a threat against a person if he or she had taken advantage of it, but he or she decided not to, and as a result is forced to flee to another State. It is at least not obviously incorrect to think that such a person has no right to stay in that State to avoid the threat he or she flees.47 However, other cases are more difficult. What if an individual did not act irresponsibly in making use of foreign aid, but his or her State did? Or that, due to nobody’s fault, for whatever reason the aid available could not have eliminated the threat from which the individual seeks to flee (suppose, for instance, that threat is an outbreak of some new disease)?
On one interpretation of the nature of the correlative right and duty of non-refoulement, these cases might not pose any major concern. Specifically, if non-refoulement is understood to be an aspect of a positive right and duty, then there does not seem to be any major obstacle to thinking that the international community has no duty to provide such people with safe haven. On this view, a concern for non-refoulement derives from the international community’s duty to assist people in avoiding threats, and the correlative right on the part of such people to be assisted. That is, the duty of non-refoulement is conceived to be a duty to affirmatively help people avoid threats, with the corresponding right being a right to receive such help. And, in light of the ‘ought-implies-can’ principle, one might then think that if all States qua members of the international community have done all they could reasonably be expected to do in satisfying their duty of assistance, no State has any duty to permit such people’s entry. In part 5, however, I will
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propose a different understanding of the nature of the right and duty of non-refoulement according to which it is far less clear that this line of argument should be accepted. On this alternative view, the right and duty are negative ones which do not fundamentally prescribe assistance, but rather non-interference. In other words, they do not necessarily involve any duty of the State to affirmatively help a person avoid a threat (or a right on that person’s part to receive such help), but rather obligate the State not to prevent or impede him or her from escaping a threat, and to afford that person a corresponding right not to be so prevented or impeded. The conclusion will return to this issue briefly, suggesting that thinking about refugee status in this way is not obviously compatible with the idea that a State can refuse refugees due to prior, current, or future acts of assistance. But first, the article will address the second primary objection to calls for expanding refugee status: namely that such an expansion would result in undue negative consequences for States, Convention refugees, or both.
- The ‘overwhelmed’ objection
For present purposes, the ‘Overwhelmed’ objection can be understood in two distinct ways.48 The first understanding appeals to a concern about what would happen to States if refugee status were expanded, and the second appeals to a concern about what would happen to Convention refugees if it were expanded. These objections rely, in turn, on two different predictions of what expanding refugee status would entail. On the one hand, the concern about States rests on the notion that expanding refugee status would impose undue costs on States.49 On the other hand, the concern about Convention refugees rests on the notion that an attempt to expand refugee status would lead to a popular backlash against the Refugee Convention, thereby making States less willing to admit even existing Convention refugees.50 Because we cannot assess the fairness of the consequences to Convention refugees of expanding refugee status until we determine the extent to which their claims might be on a par with those fleeing non-persecutory threats, let us confine our attention to the worry about States now, and return to the worry about Convention refugees in the conclusion to this article.
As with the ‘In Place’ objection, let us assume that the version of the ‘Overwhelmed’ objection concerned with States is in fact well founded, and that an expanded conception of refugee status would have the effect of subjecting some States to unacceptable burdens. Even if this prediction is sound, however, the fundamental flaw with this line of reasoning is that it misstates the nature of the central problem confronted by the international community in determining whether or not refugee status should be expanded. For that problem is not what ought to be done to prevent a future situation in which States might incur unacceptable burdens, but rather what ought to be done about an existing situation in which some States are already incurring unacceptable burdens, while others are not. For despite the fact that the Refugee Convention itself
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limits refugee status to the persecuted, it is nevertheless the case that certain regional treaties already conceptualize refugee status more broadly.51 As such, the most pressing issue facing the international community is how to achieve a fair distribution of existing costs and risks.
As we saw with the ‘In Place’ objection, opponents of expanding refugee status might very well take a hard-line position here. It is open to them to argue that if some States wish to provide protection to those fleeing non-persecutory threats they may, but as a matter of justice they do so entirely at their own expense and have no valid claim on other States to bear additional burdens because they insist on engaging in supererogatory conduct. Instead, where such States deem the burdens too large for them to handle, one might insist that those States are free to exclude additional non-Convention refugees and perhaps to remove those they have already admitted.
Here, too, we will be in a better position to consider the merits of this hard-line position after taking a deeper look at whether those fleeing threats other than persecution are morally on a par with those fleeing persecution. However, it is worth noting that if the opponent of expanding refugee status does not take this position, then we are confronted with the issue of determining how best to respond to the existing costs and risks of refugee admissions without thinking it is a legitimate expectation that States either restrict refugee flows or bear the burdens of them. More precisely, we must consider the issue of how to ensure a fair distribution of these costs and risks among the international community. The natural way of ensuring this would seem to be to have either a treaty delimiting the scope of States’ respective obligations to admit people fleeing non-persecutory threats or, better still, an institution empowered by international law to authoritatively determine the scope of those obligations.52 But it is a logical implication of the existence of such a treaty or institution that it recognize that States do indeed owe each other an obligation to admit people fleeing non-persecutory threats in the first place. The lack of such a treaty or institution with regard even to Convention refugees suggests that this would be a hard goal to achieve, if it could in fact be achieved in the foreseeable future.53 However, at the very least, it seems uncontroversial to expect that any attempt to impose burden-sharing mechanisms would be more likely to be perceived as legitimate – and to that extent more likely to succeed – where it takes place in the context of an international community that recognizes that States have an obligation not to remove people to non-persecutory dangers versus one that does not recognize that obligation.
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- Non-refoulement as non- interference
Having addressed the primary objections to Shacknove’s argument which concern us here, let us now consider whether Shacknove’s own alternative conception of refugee status suffices from the standpoint of justice. According to his proposal, a person should be granted refugee status if – but only if – he or she flees a threat that is subject to human control. There are two important things to notice about this proposal. The first is that it would obviously extend refugee status beyond just the persecuted. In particular, not only those who flee threats deliberately caused by other human beings would be recognized as Convention refugees, but also those who flee threats which are negligently or recklessly caused by other human beings, or even threats that could have been appreciably mitigated by other human beings.54 The second thing to notice, however, is that by its terms, Shacknove’s proposal would not extend refugee status to those fleeing threats not subject to human control. That is, if the threat one flees is not a threat which human action could have appreciably mitigated, one is not a refugee on Shacknove’s proposal.
Shacknove’s argument for his proposal appeals to a Hobbesian account of State legitimacy on which the State exists in order ‘to reduce each person’s vulnerability to every other’.55 Where a State falls intolerably short of reducing one of its member’s vulnerability to others, he argues, that member has a right to protection by the international community. Meanwhile, Shacknove argues, a State not only falls intolerably short of reducing its members’ vulnerability to each other where it fails to protect its members from persecution, but also more generally where it fails to protect its members’ basic needs from vulnerability to others’ acts, or even their omissions. Now, as Shacknove argues, even in the case of natural threats like hurricanes or droughts, people will frequently have a right to protection by the international community given that the effects of natural threats are often subject to enhancement or mitigation by human action. Still, it follows from Shacknove’s account that where a person faces a threat to his or her basic needs which has not been enhanced by human action, nor could have been mitigated by it, he or she is not entitled to the international community’s protection. This is, Shacknove argues, because ‘it would be incongruently illogical to expect social institutions to contend with sources of vulnerability beyond human control’.56
Whether or not his account of political legitimacy is sound, I believe Shacknove errs in treating the issue of whether a person possesses refugee status as one which essentially depends on the nature of the bond between the fleeing person and his or her State at all. Instead, whether a person is justly recognized under international law as a refugee or not should be thought to depend only on the severity of the threat he or she flees and the likelihood that the threat will materialize if he or she returns.57 And although the
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bond between the refugee and his or her State is of course relevant here – for example, all things being equal, one is more likely to suffer a harm if one’s State refuses to protect one from it or the State itself is its source – whether a person possesses refugee status on this analysis does not ultimately depend on any shortcoming in one’s relationship with one’s State. One could qualify as a refugee on it even if one’s State did everything in its power to protect one from harm, yet failed to do so through no fault of its own.
A fully satisfying defence of this proposal would require a deeper inquiry into normative ethics than is possible in this article. Instead, it is defended here on the basis that: (1) an independently attractive general principle supports it, and (2) there are no apparent countervailing considerations which would override applying that principle in this context.
It is a common feature of property law regimes across different States and traditions (for example, in both common law and civil law systems) that a real property owner’s right to exclude others from his or her property is generally limited by a ‘right of necessity’ on the part of others to enter that property where doing so is necessary in order for them to avoid sufficiently severe and probable threats (for example, where they flee likely death or significant bodily harm).58 As such, even though real property owners generally have the privilege of excluding a person from their property, legal systems nonetheless often impose a duty on them not to exclude someone from their property where some serious threat is likely to befall that person if he or she does not enter it. Consider here also the aspect of the ‘right of innocent passage’ recognized in the law of the sea, which affords a vessel the right to enter into the coastal waters of any State where it is in distress or in order to escape a force majeure.59 Like the right of necessity, this aspect of the right of innocent passage represents an important constraint on the State’s general privilege of excluding a foreign vessel from its coastal waters: under such circumstances, the State must let it enter.
Int J Refugee Law (2018) 30 (3): 512 at 528
Both these doctrines can be readily understood as particular applications of a more general principle of justice: every person P has the right to enter a location L if P‘s entering L is necessary for avoiding some sufficiently likely and severe threat T.60 Meanwhile, P‘s right to enter L to avoid T implies a correlative duty on the part of all others not to exclude P from L to avoid T. In turn, anyone’s right to exclude others from L does not include the privilege of excluding P from entering L to avoid T.
That people would have a moral right, and States a correlative moral duty, of non–refoulement also flows readily from this moral principle. Given that every person has the right to enter a location if entering it is necessary for him or her to avoid some sufficiently likely and severe threat, it would seem that every person similarly has the right to enter another country if entering that country is necessary for avoiding some sufficiently likely and severe threat.61 Meanwhile, a person’s right to enter another country to avoid a sufficiently likely and severe threat implies a correlative (moral) duty on the part of all others not to exclude him or her from entering another country to avoid that threat. And because anyone’s right to exclude others from entering another country does not include the privilege of excluding a person from entering another country to avoid a sufficiently likely and severe threat, a State’s right to exclude a person from entering its territory does not include the privilege of excluding someone from entering it to avoid that threat.
I suspect that the reason people who accept the moral force of the legal right and duty of non-refoulement implicitly do so is because they accept it as an application of this moral principle. That is, careful reflection on the ethical foundations of that right and duty would reveal that it is ultimately respect for this moral principle – rather than, for instance, a concern for the bond between the State and its members – which justifies their support for the right and duty of non-refoulement within international law.62 However, it is neither necessary nor sufficient for defending my proposal that this
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speculation about the philosophical foundations of international refugee law is correct. Instead, that proposal is defensible due to: (1) the independent plausibility of the general principle, and (2) the lack of any reason cited by Shacknove or otherwise apparent as to why that general principle should not apply to constrain the State’s privilege of excluding non-citizens from its territory.
As to the independent plausibility of the general principle, again, a fully satisfying defence would necessitate a deeper inquiry than can be offered here. Nevertheless, even the most strident advocates of rights over land typically accept that there are some threats which will be sufficiently severe and likely as to impose a duty on the right-holder not to exercise them with regard to a given individual.63 And so long as one does not accept an even stronger view of such rights, one has a reason to endorse this principle.
Assuming one does endorse this principle, the question then becomes: is there any compelling reason to think it should not be determinative of the respective moral positions of a person fleeing a threat and the State he or she enters in fleeing it? If one accepts the moral force of the aspect of the right of innocent passage discussed above, it is hard to see what compelling reason there could be, as the only obvious distinction between the two situations from the perspective of ethics is that the right of innocent passage applies to those who face a threat at sea rather than on land. Even if one were to reject that aspect of the right of innocent passage and only accept the moral force of the right of necessity, one must nevertheless account for why the State should be thought excepted from a moral principle which applies to all its members. There may very well be a sound reason for thinking this, but no such reason is presented by Shacknove or is otherwise readily apparent. And if there is no such reason, it would seem that a person need not flee a threat subject to human control in order to be entitled to non-refoulement.
- Conclusion
Assuming the arguments in the previous part are sound, Shacknove’s conception of refugee status is itself too limited. Justice demands that whether international law recognizes a right of a person to non-refoulement depends not on whether the threat he or she flees is subject to human control, but instead on the severity of that threat and the likelihood that it will materialize if he or she returns. Thus, even where the threat a person flees is entirely outside human control – even if it is not at all caused
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or remediable by human action – he or she should nevertheless have a comparably entrenched right to non-refoulement under international law. Most saliently, unlike Shacknove’s proposal, my proposal would extend that right to people fleeing catastrophic natural hazards, outbreaks of fatal diseases, or any other threat which meets some threshold of severity. To be sure, Shacknove is right to insist that it will often be the case that the consequences of even natural hazards will be subject to human control in non-trivial ways. But insofar as we can readily imagine realistic circumstances where this will not be true – consider, as just one example, a scenario in which a major hurricane or tsunami directly hits (or will directly hit) the entirety of a small island nation – the differences between Shacknove’s proposal and mine are not purely a theoretical matter.
Moreover, it is now possible to address some aspects of the ‘In Place’ and ‘Overwhelmed’ objections that were left open earlier. First and foremost, we have reason to be sceptical of the hard-line defence of the ‘Overwhelmed’ objection suggested above which insists that, because States do not have a duty to admit people fleeing non-persecutory threats, no State has a valid claim that others implement burden-sharing mechanisms for affording them refuge. For, as we saw in part 5, there are intuitively compelling grounds to think that States do have such a duty.
Secondly, we can also reject the response to the ‘In Place’ objection which would insist that the Convention definition ought to be preserved because there is no available rule which can both adequately address the asymmetry in the international community’s ability to assist the persecuted versus the non-persecuted in their own countries while also ensuring that those who confront serious threats notwithstanding international assistance will be afforded the right to non-refoulement. For, on the one hand, my proposal can readily accommodate this asymmetry (insofar as it goes) by taking into account the prospects for effective foreign assistance of people fleeing non-persecutory threats in determining the likelihood that the threats they flee will materialize if they are returned. Meanwhile, because it is sensitive to the actual probability that a threat will materialize, my proposal can also readily accommodate circumstances in which foreign assistance will in fact be ineffective at doing so.
In addition, we can now respond to the version of the ‘Overwhelmed’ objection which appeals to the concern that an expansion of the Convention definition will lead to a popular backlash against the international refugee protection system overall, thus resulting in unjust negative consequences to Convention refugees. Undoubtedly, the refugee protection system is far too weak as it is, so this is a concern to which advocates of expanding refugee status should be particularly sensitive, especially if that goal is understood narrowly as insisting that States amend the Refugee Convention in the near future. But how far does this really take us? After all, as several authors have pointed out, it is an implication of the Convention definition that those fleeing even the most severe non-persecutory threats (for example, those which threaten a person’s very survival) will not be extended a right to non-refoulement, while those fleeing far less severe persecutory threats will.64 Insofar as the choice confronted by advocates of expanding refugee status is one of weakening protection for the latter in order to strengthen protection
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for the former, it is at least arguable that this would be an acceptable trade-off. But much more importantly, advocacy for expanding refugee status need not – indeed, should not – be narrowly understood as the more-or-less immediate call for renegotiating the Refugee Convention.65 Indeed, there is no reason why the advocate of expanding refugee status must insist on its renegotiation at all. Rather, what is crucial is that those fleeing severe and likely non-persecutory threats should enjoy a comparably entrenched right to non-refoulement under international law as the right to non-refoulement enjoyed by Convention refugees. This might take the form of strengthening and widening the scope of existing complementary protection schemes. Or it might take the form of a new treaty which aims, not to replace the Refugee Convention, but rather to supplement it. Other possibilities no doubt exist as well. In any case, advocacy for expanding refugee status is compatible with the idea that that expansion should occur through an incremental process, taking into account considerations of political feasibility along the way.66
Finally – and most tentatively – conceiving of the right to non-refoulement as akin to the right of necessity in property law and the aspect of the right of innocent passage in the law of the sea discussed above suggests a reason to be sceptical of the notion that a State might be exempt from its correlative duty through the provision of foreign aid.67 For, again, on this interpretation the right of non-refoulement is not a positive duty to assistance at all, but instead a negative duty of non-interference. That is, it is not a duty that one take affirmative measures to protect others from harm, but rather that one does not oneself harm others. At a bare minimum, it is far from obvious that a history of assistance at all excuses one from a duty of non-interference. For even if I have rescued you from certain death countless times, it seems at least intuitively implausible to think that I could thereby be justified later in holding the door closed when you attempt to exit a burning building or pushing you back into the water when you try to escape from drowning. And if so, then the same line of reasoning would also seem to apply to the relationship between States and those fleeing non-persecutory threats, because in forcing a person to return to a threat he or she has fled, the State does not merely fail to help him or her avoid harm, it itself becomes a cause of harm.
1 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.
2 Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Refugee Protocol).
3 See Refugee Convention, art 1; Refugee Protocol, art 1. More precisely, such persecution must also be due to at least one of the five grounds enumerated by Refugee Convention, art 1. However, since this article argues against the necessity of persecution generally, these further restrictions are set aside here.
4 For a brief overview, see Susan Martin, ‘Global Refugee Crisis’ (2016) 17 Georgetown Journal of International Affairs 5.
5 See United Nations High Commissioner for Refugees (UNHCR), ‘Guidelines on International Protection No 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the Regional Refugee Definitions’, UN doc HCR/GIP/16/12 (2 December 2016).
6 See eg Andrew Shacknove, ‘Who Is a Refugee?’ (1985) 95 Ethics 274; Chandran Kukathas, ‘The Case for Open Immigration’ in Andrew I Cohen and Christopher Wellman (eds), Contemporary Debates in Applied Ethics (Wiley-Blackwell 2005); Joseph Carens, The Ethics of Immigration (Oxford University Press 2013) 199–203; Matthew Gibney, ‘Refugees and Justice between States’ (2015) 14 European Journal of Political Theory 448.
7 See Shacknove (n 6).
8 See eg James C Hathaway, ‘Is Refugee Status Really Elitist? An Answer to the Ethical Challenge’ in Jean Carlier and Dirk Vanheule (eds), Europe and Refugees: A Challenge? (Kluwer Law International 1997); Kristen Walker, ‘Defending the 1951 Convention Definition of a Refugee’ (2003) 17 Georgetown Immigration Law Journal 583; Matthew Price, ‘Persecution Complex: Justifying Asylum Law’s Preference for Persecuted People’ (2006) 47 Harvard International Law Journal 413; Matthew Lister, ‘Who Are Refugees?’ (2013) 32 Law and Philosophy 645; Max Cherem, ‘Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere’ (2016) 24 Journal of Political Philosophy 183.
9 Shacknove’s most controversial claim, by far, is that international law should extend refugee status to people who remain within the borders of their home countries. This article makes no attempt to defend this claim here (indeed, this way of thinking about refugee status conflicts with my later proposal that the central incident of that status is a negative, rather than a positive, right).
10 See eg Walker (n 8) 599–600; Price (n 8) 429–31; Lister (n 8) 663–64.
11 See eg Walker (n 8) 586, 596–97; Price (n 8) 451, 463–65; Lister (n 8) 655.
12 See Refugee Convention, art 33(1). In referring to a ‘right’ of non-refoulement under the Refugee Convention, all that is signified is that a State is required not to remove a Convention refugee to a place where he or she has a well-founded fear of being persecuted, in that it is not within a State’s discretion to decide whether or not to do so. In this limited sense, the Convention refugee enjoys a right – as opposed to a mere privilege– not to be so removed. See Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710. It should be noted also that there are other conceptions of a right on which it would be inaccurate to say the Convention affords refugees a right to non-refoulement. (The characterization of the principle of non-refoulement in terms of an individual right will be discussed at the end of part 2 below.)
13 To clarify, it is not suggested that people fleeing non-persecutory threats lack a right to non–refoulement under international law, although my argument is compatible with this possibility. My view is that there is a right to non-refoulement under international law for people fleeing at least some non-persecutory threats, but this assertion cannot be adequately defended here. The critical claim for present purposes is that, if such a right exists, it is not (but should be) comparably entrenched in international law as the right of non-refoulement provided by the Refugee Convention. Additionally, it is not suggested that the Refugee Convention exhausts the limits of the principle of non-refoulement. Most saliently, a similarly explicit and recognized duty of non-refoulement is imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (Convention against Torture) art 3. The Convention against Torture is one form of complementary protection referenced in the following paragraph. However, it is set aside here because torture falls within the extremely expansive definition of persecution to be sketched in the next part, which stipulates that its essential features are that it involves harms caused by human beings and that the causation of such harm is to some degree deliberate. Of concern in this article are threats which are either not deliberately caused or are indeed caused solely by natural phenomena.
14 For helpful overviews of this topic, see Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press 2007) and Climate Change, Forced Migration, and International Law (Oxford University Press 2012) ch 3.
15 An example here is ‘Temporary Protected Status’ in the United States (US), which precludes removal of people to circumstances of armed conflict or natural disasters, but only following a discretionary designation by the US government. See McAdam (2007) (n 14) 74 n 123.
16 In addition to Temporary Protected Status in the US, for a scheme specific to the Member States of the European Union, see Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12; see also Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L377/20.
17 The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) comes closest to offering comparable protection to the Refugee Convention, in that it confers rights and its scope is undoubtedly fully international. See ICCPR, arts 6–7. Moreover, it has been recognized as entailing a duty of non–refoulement. See McAdam (2012) (n 14) 56, citing, inter alia, Human Rights Committee, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) para 12. However, although the ICCPR quite plausibly entails (indeed, let us stipulate, does actually entail) a duty of non-refoulement for States not to remove people fleeing threats which are similarly serious to persecution, it is far from clear that it enshrines that duty to an equivalent degree as the Convention for several reasons. For instance, whereas the plain language of the Refugee Convention requires non-refoulement, the fact that a duty of non-refoulement must be inferred from the text of the ICCPR permits a greater degree of reasonable disagreement (or opportunities for faulty readings) regarding its existence and scope. And other possibilities for reasonable disagreement are implicated by the ICCPR’s prohibition just of ‘arbitrary’ deprivations of life, whereas the Refugee Convention provides only for certain enumerated exclusions from its provisions. Compare the ICCPR, art 6 with the Refugee Convention, arts 1D–1F. Moreover, that prohibition’s applicability is even less clear to risks which, although severe, do not threaten life itself. Nevertheless, this topic deserves further exploration.
18 Although my remarks here and elsewhere may give the impression that I am asserting that the right to non-refoulement is the only incident of refugee status, this is not my position. There may be other aspects of refugee status in addition to the right to non-refoulement. What is crucial for my aims in this article is that refugee status necessarily entails a right to non-refoulement, but not a right to ‘durable solutions’. (See part 2 below.)
19 See Jean-François Durieux, ‘The Vanishing Refugee: How EU Asylum Law Blurs the Specificity of Refugee Protection’ in Hélène Lambert, Jane McAdam, and Maryellen Fullerton (eds), The Global Reach of European Refugee Law (Cambridge University Press 2013).
20 That is, to evaluate it as an attempt to demonstrate that a comparably entrenched international legal duty to non-refoulement owed between States should be extended beyond those fleeing persecution to other forced migrants (or whatever the reader’s preferred label may be).
21 See Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, para 2 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011) 352–53.
22 Immigration and Nationality Act of 1952, Pub L No 82–414, 66 Stat 163, as amended by Refugee Act of 1980, Pub L No 96–212, 94 Stat 102.
23 See Scott Rempell, ‘Defining Persecution’ (2013) Utah Law Review 283, 283–84.
24 Consider here the etymology of the word ‘persecution’ as deriving from the Latin word for ‘to pursue’ and ‘to follow’. See Jaakko Kuosmanen, ‘What’s So Special about Persecution?’ (2014) 17 Ethical Theory and Moral Practice 129, 130.
25 Lister (n 8) 630 n 14.
26 Price (n 8).
27 Cherem (n 8).
28 Notice, however, that this critique of Shacknove’s arguments in defence of his conception of refugee status below also applies to Cherem’s point about the connection between persecution and the repudiation of political membership. See Cherem (n 8).
29 See ibid and Price (n 8), respectively.
30 See eg Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007) 489 (‘neither general international law nor treaty obliges any State to a durable solution’); see also T Alexander Aleinikoff and Stephen Poellot, ‘The Responsibility to Solve: The International Community and Protracted Refugee Situations’ (2014) 54 Virginia Journal of International Law 194, 205 (‘a “hard” right to membership, assertable today, cannot be found in any legal instrument nor is it widely respected by state practice’).
31 See Refugee Convention, art 33.
32 See eg Walker (n 8) 599; Lister (n 8) 659.
33 See eg Lister (n 8); Cherem (n 8).
34 This concession is not meant to endorse the position that a right to durable solutions is justifiably confined to people fleeing persecution, however. For a compelling critique, see Carens (n 6) 199–206.
35 See eg Hathaway (n 8) 81; Walker (n 8) 583.
36 For instance, Lister (n 8) 659 expressly frames his advancement of the ‘In Place’ objection against Shacknove as intended to show that Shacknove’s proposal is unable to account for the fact that refugees are entitled to non-refoulement. Meanwhile, Walker (n 8) 599 argues that the persecuted have special reasons to be eligible for citizenship in pressing the ‘In Place’ objection, despite conceiving of the possession of refugee status as simply implying a right to non-refoulement.
37 Of course, a State must first recognize a person as a refugee before he or she may be granted the right to be admitted (as a matter of law) to its territory. However, because my concern here is with the normative question of what criteria entitle a person to non-refoulement rather than factual questions regarding the determination of whether a person meets these criteria, this issue is put to the side in what follows.
38 Although it departs from recognized international law in taking the central incident of refugee status to be the right to a durable solution rather than just the right not to be returned to persecution, see Cherem (n 8) for a useful discussion of why the Convention refugee is meaningfully characterized as a bearer of rights, rather than as merely a subject of humanitarian concern. For other examples of the Convention being characterized as conferring a right of non-refoulement, see eg Walker (n 8) 585 n 11; Aleinikoff and Poellot (n 30) 202–03; James C Hathaway, The Rights of Refugees under International Law (Cambridge University Press 2005) 278–302. As noted earlier, all that is intended in referring to a ‘right’ to non-refoulement under the Convention here is to signify that States lack the discretion to remove Convention refugees to persecution, and in this sense Convention refugees possess more than a mere privilege against such removal. See n 13 above.
39 See Refugee Convention, arts 1D–1F.
40 See ibid art 33.
41 It is not claimed here that the Refugee Convention imposes duties on States that are owed to refugees themselves, nor that a State’s or regional body’s laws can excuse it from duties imposed by the Convention. Rather, this is meant only to highlight what the Refugee Convention accomplishes that the laws of a State or regional body alone cannot.
42 See eg Walker (n 8) 599–600.
43 Lister (n 8) 663.
44 See HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 128–29.
45 One possible example is the divestment campaigns targeting South African apartheid.
46 This seems to be one plausible reading of Lister (n 8) 659–61.
47 This does not itself imply that the State should not permit his or her entry, just that he or she has no right that the State permit it.
48 For a clear and concise statement of both versions of this objection, see Lister (n 8) 655; see also Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge University Press 2004) 84.
49 See eg Walker (n 8) 596–97.
50 See eg ibid 586; Gibney (n 48) 212–22.
51 See Goodwin-Gill and McAdam (n 30) 37–50, referring to the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 14691 and the Cartagena Declaration on Refugees (adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held in Cartagena, Colombia, 19–22 November 1984).
52 This could take the form of new treaties or institutions, or existing ones (eg human rights instruments or bodies).
53 The article briefly returns to issues of strategy in the conclusion.
54 See Shacknove (n 6) 277–81.
55 ibid 278.
56 ibid.
57 My proposal thus parallels Carens’ (n 6) 200–02, with the central difference being that Carens, like Lister and Cherem, presupposes that possession of refugee status implies a right to a durable solution, not merely a right to non-refoulement. Compare Carens (n 6) 199–206 with Lister (n 8) and Cherem (n 8).
58 See James Gordley and Arthur Taylor von Mehren, An Introduction to the Comparative Study of Private Law: Readings, Cases, Materials (Cambridge University Press 2009) 213–33; see also James Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford University Press 2006) 130–39.
59 Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397, arts 17–18. In referring to the right of a vessel to enter coastal waters under conditions of distress or force majeure as an ‘aspect of ‘ the right of innocent passage, the latter right includes, but is not identical to, the former. Further, because my reason for invoking this aspect of the right of innocent passage is only to show that international law is plausibly thought to already reflect the moral principle mentioned in the following paragraph, nothing of significance hinges on whether one reads the Convention on the Law of the Sea as explicitly affording the right that concerns us here, or as merely impliedly recognizing a right found in customary international law. So long as one agrees that this right exists under the law of the sea – and thus international law – as well as morally endorses its inclusion in international law, to consistently reject affording an analogous right to people to enter another State’s territory to avoid non-persecutory threats one must either refute the claim that it is an application of the principle below or show that there is a morally significant difference involved in enshrining the two rights under international law.
60 This does not suggest that this right is itself absolute. The right of necessity under real property law is constrained by a ‘right of self-defence’ on the part of the property owner to refuse entry if doing so is necessary for the property owner to avoid a sufficiently severe and likely threat. See Gordley and von Mehren (n 58) 213–33. An analogous exception to the right and duty of non–refoulement is provided by the Refugee Convention, art 33(2). The non-absolute character of the right and duty of non-refoulement is ignored here for ease of exposition, but these remarks should be read with this caveat in mind.
61 In ordinary circumstances, there will be more than one State a person will be physically able to enter to avoid the threat he or she flees. Such circumstances implicate the burden-sharing considerations discussed in part 4 of this article, and raise difficult questions regarding whether and when a receiving State may permissibly remove a person to a safe, yet non-consenting, other State. However, such issues do not undermine the applicability of the principle proposed in the text to the migration context; they simply point towards its limitations. For, if a State cannot prevent a person from being within its territory without subjecting him or her to a morally intolerable risk, it will nevertheless run afoul of the principle if it removes him or her.
62 On the similarity between the right to non-refoulement and the right of necessity, compare Hugo Grotius, The Rights of War and Peace, Book II (first published 1625, Liberty Fund 2005) 446–47 with 433–35. On the similarity to the aspect of the right of innocent passage in the law of the sea discussed here, compare Emer De Vattel, The Law of Nations (first published 1758, Liberty Fund 2008) 309 with 322–23. In any case, my suggestion here is not a claim about the content of the (legal) right and duty of non-refoulement enshrined in the Refugee Convention, nor about the intentions of the people who drafted or ratified the Convention, but rather about why the right and duty of non-refoulement imposed by the Convention should enjoy the level of moral support throughout the international community that it does. On Ronald Dworkin’s terminology, the moral principle sketched earlier justifies (regardless of whether it sufficiently fits) the Convention’s legal right and duty of non-refoulement. See Ronald Dworkin, Law’s Empire (Harvard University Press 1986) ch 2.
63 See eg Robert Nozick, Anarchy, State and Utopia (Basic Books 1974) 180 (arguing that ‘an owner’s property right in the only island in an area does not allow him to order a castaway from a shipwreck off his island as a trespasser’).
64 See eg Carens (n 6) 200–01) and Gibney (n 6) 453.
65 For an example of advocacy of expanding refugee status being characterized in this way, see Walker (n 8) 608–10.
66 For one proposal of how this might proceed, see Luara Ferracioli, ‘The Appeal and Danger of a New Refugee Convention’ (2014) 40 Social Theory and Practice 123.
67 As before, cases where an individual is personally responsible for the failure of international aid to eliminate a threat to him or her are left aside.