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Reparative Justice and the Prioritisation of Refugees

Part of the International Political Theory book series (IPoT)

Abstract

This chapter examines how the use of asylum as a form of reparation by states might affect the operation of their asylum systems on the domestic level. First, Souter asks whether an application of reparative justice in this context could warrant unfairly preferential treatment to some refugees over others within their states of asylum, and identifies means through which states could mitigate or avoid this risk of unfairness. Second, the chapter questions how states could justifiably prioritise reparative and humanitarian asylum claimants in cases of genuinely limited state capacity, and argues that the priority to be given to either reparative obligations or humanitarian duties is sensitive to refugees’ differing levels of need, which can at times justify departures from reparative justice in this context.

Keywords

  • Asylum
  • Reparation
  • Refugees
  • Responsibility
  • Prioritisation
  • Humanitarianism

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Notes

  1. 1.

    It is certainly the case that reparative asylum differs markedly from humanitarian asylum as it is standardly understood, for reparative asylum is a matter of justice while, as I examined in Chapter 2, the dominant humanitarian approach views asylum as a discretionary act of charity. In this section, however, I focus on the relationship between reparative asylum and the revised conception of humanitarian asylum that I outlined at the end of that chapter.

  2. 2.

    It might be objected that the contrast between humanitarian and reparative asylum claimants in this section is overly stylised, and ignores the fact that it may be difficult to tell which category any given asylum seeker falls within in practice. However, there is one clear way in which the two categories are overlapping, for all reparative claimants also have a humanitarian claim for asylum, given their need for protection of their basic rights. By ‘humanitarian claimant’, then, I am referring to refugees who only have a humanitarian claim against the state in which they are seeking asylum.

  3. 3.

    This is particularly so if one holds strongly forward-looking principles of distributive justice, which deny much significance to past injustice (see Butt, 2009: ch. 2). For an argument concerning the treatment of refugees within their states of asylum that draws on considerations of ‘social equality’, see Ferracioli (2020: 202–205).

  4. 4.

    That said, there may be some differences in the treatment of reparative and humanitarian asylum claimants that do not raise concerns of unfairness and are ethically unproblematic. For instance, whereas purely humanitarian claimants are not owed an apology for their displacement by their state of asylum, reparative claimants are. This would be the case even if, as I suggested in Chapter 5, they had been displaced in a tragically justified manner.

  5. 5.

    For a more general argument concerning the relationship between rectificatory and distributive justice, see Butt (2009: ch. 2). For discussion of this relationship in the aftermath of war, see Fabre (2016: 156–157; 163).

  6. 6.

    There is also one way in which considerations of distributive justice should affect how the requirements of restitutive justice are interpreted in this context. Whereas requiring that refugees’ previous standard of living be restored in their state of asylum would lead to very unfair inequalities in treatment (as the greater the wealth of the refugee before their flight, the greater their entitlement to resources would be), asylum can offer some limited degree of restitution to refugees fairly if the good to be restored is taken to be basic state protection of the sort that all are entitled to, offered in line with the general living standards within the state of asylum.

  7. 7.

    The legitimacy of this kind of decision would be greatly enhanced if it were taken by a deliberative body made up of both refugees and citizens of the sort envisaged more generally by Amighetti and Nuti (2015) and discussed in Chapter 4. Moreover, even if reparative asylum were not offered on a permanent basis, it would clearly need to last for as long as the refugees in question remained at risk on return to their states of origin in order to respect the principle of non-refoulement.

  8. 8.

    The principle of non-refoulement, regarded as the cornerstone of international refugee law, states that ‘no State shall return a refugee to a territory in which he or she is at risk of persecution or other “relevant harm”’ (Goodwin-Gill & McAdam, 2007: v).

  9. 9.

    Moreover, Lippert-Rasmussen and Vitikainen (2020: 3) have pointed to a parallel risk that, by refraining from addressing questions concerning refugee prioritisation, ‘countries could unreflectively act even more wrongfully in relation to refugee admission process [sic] than they would otherwise’.

  10. 10.

    Relatedly, E. Tendayi Achiume (2019: 1531–1532) critiques what she calls ‘political stranger exceptionalism’, which holds that ‘sovereign states have a right to exclude, but…certain political strangers warrant discretionary admission and inclusion because some terrible event creates exceptional circumstances’.

  11. 11.

    Within this context, broader issues of prioritisation concerning refugees abound, and may involve deep conflicts of value (see e.g. Blake, 2020; Bradley, 2019; Weiner, 1998). For instance, whether rightly or wrongly, the 1951 Convention gives precedence to those at risk of persecution; the principle of non-refoulement prioritises those who can reach a territory under their own steam over internally displaced persons and those without the ability to flee; and cosmopolitan and communitarian moral theories differ over whether states are justified in prioritising the interests of compatriots over those of refugees (see Boswell, 2005; Gibney, 2004: chs. 1–2).

  12. 12.

    Although the terms ‘duty’ and ‘obligation’ are often used interchangeably, here I follow Scheffler (2001: 49) in using the term ‘obligation’ to refer ‘more narrowly….to moral requirements deriving from promises or agreements, or from other voluntary acts’, including those which result in harm to others. I have, therefore, referred throughout this work to humanitarian duties and reparative obligations, respectively, and use the broader term responsibility to encompass both.

  13. 13.

    Relatedly, Samuel C. Wheeler (1997: 317) has argued that ‘[w]hat reparations consist of, from an impartial, universalist standpoint, is unjustified discrimination. Among those equally needy or deserving, some with a special distinction which they have done nothing to deserve are awarded benefits’.

  14. 14.

    For an application of Nagel’s distinction to the ethics of asylum, see Gibney (2004: 77–82).

  15. 15.

    Pogge (2002: 292) adds that ‘it is widely acknowledged that a positive duty can still win out when much more is at stake…: one may usually break a promise, violate a just property regime, or injure an innocent when doing so is necessary to save a human life, for example’.

  16. 16.

    Some theoretical work has recognised the normal priority given to reparative justice in common moral thought, with Mark Gibney (1986: xiii) viewing his Basic Rights Principle as ‘weaker’ than a reparative Harm Principle. However, the implications of this in such cases has been left underexplored.

  17. 17.

    Some may baulk at this talk of ‘needy’ refugees, considering it to imply a somewhat demeaning conception of refugees as passive victims. Nevertheless, the fact that refugees are in need in itself says nothing about the agency they possess: one can have unmet needs, yet exercise one’s agency in seeking to meet them oneself; a point to which self-settled refugees the world over attest.

  18. 18.

    The severity of the conflict between humanitarian duties and reparative obligations in this context would also depend in part on how refugees were defined by the state of asylum. The maintenance of the current legal definition would limit the numbers eligible for asylum to those at risk of persecution, and would therefore render these problems of prioritisation less grave than if an expansive definition were adopted.

  19. 19.

    There are other possible scenarios involving reparative asylum claimants that could also raise issues of prioritisation. I set aside the possibility that a state might consider a group of refugees whose flight it has brought about for asylum as reparation but, finding that the numbers exceed its legitimate limit, prioritise the neediest within that group. I also do not engage with the question of how states should balance their responsibilities towards refugees for whose flight they are outcome responsible with their obligations to assist refugees remaining in their regions of origins for whom they bear no such responsibility, or how such states should prioritise refugees vis-à-vis the non-displaced, such as the extremely poor who remain in their places of origin.

  20. 20.

    I have resorted to a stylised thought experiment here because there is no real-life situation of which I am aware where a state’s obligations to refugees  has been so finely balanced, Again, the likelihood of a Western state ever genuinely finding itself in such a scenario seems extremely slim. For a more tersely expressed thought experiment on refugee prioritisation that leads to a similar conclusion to this one, see Holtug (2016: 286). For a thought experiment on the priority of reparative and distributive obligations more generally, see Fabre (2016: 156).

  21. 21.

    Similarly, Miller (2015: 403) has argued that, because those whom he describes as ‘particularity claimants’ have stronger claims against specific states on account of some connection they have to  those states than other refugees, ‘those who fall into the intersection of the two categories…should have lexical priority’ for admission.

  22. 22.

    For a further thought experiment, which concludes that a humanitarian asylum claimant in more urgent need may be deprioritised in relation to a ‘particularity claimant’ if the former can be offered asylum elsewhere, see Miller (2015: 403–404). However, this differs from the hypothetical scenario under discussion here, given that I have taken the availability of protection elsewhere as directly bearing on refugees’ level of need. It also differs because, while the receiving state in Miller’s example is the United Kingdom, I make no suggestion that actual Western states realistically might genuinely find themselves in this kind of scenario.

  23. 23.

    There could, however, even be more extreme cases in which the rejection of that refugee would lead the receiving state to violate the principle of non-refoulement, as the refugee in question would be returned to grave threats to their life and liberty. In this kind of scenario, it may well be that the state in question would dirty its hands in the sense examined in Chapter 5: by rejecting one refugee to protect a more necessitous refugee in acutely constrained circumstances, it would tragically be ‘doing wrong to do right’ (De Wijze, 2007). In such a case, the state of asylum would not only owe asylum as reparation to that refugee as soon as its capacity allowed, but it would also owe her reparation for the justified wrong of refusing her.

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Souter, J. (2022). Reparative Justice and the Prioritisation of Refugees. In: Asylum as Reparation . International Political Theory. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-62448-4_8

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