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Reparative Justice and International Refugee Responsibility-Sharing

Part of the International Political Theory book series (IPoT)

Abstract

This chapter explores how the introduction of reparative considerations within international refugee responsibility-sharing schemes might affect both their operation and the prospects for international cooperation on refugee protection overall. The chapter begins by envisaging how the pursuit of reparative justice within these schemes might affect the international distribution of refugees, assuming the full compliance of states. The second main part of the chapter drops this assumption and asks what the effects of a reparative approach might be on the international politics of refugee protection in the much more likely scenario of partial compliance. Souter envisages several potentially perverse incentives this approach may create in this context, before briefly identifying potential ways in which reparative justice for refugees could be pursued without creating these incentives.

Keywords

  • Refugee protection
  • Reparation
  • Responsibility-sharing
  • Burden-sharing
  • State compliance
  • Incentives

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Notes

  1. 1.

    I have chosen in this chapter to follow Tally Kritzman-Amir (2009: 359) in referring to international ‘responsibility sharing’ rather than the standard phrase of ‘burden-sharing’ in order to avoid the latter’s ‘potentially prejudicial connotation’ (Thielemann, 2003a: 225), and to reflect the fact that, in the longer term, ‘burdens may mutate into resources’, given the contributions that refugees often bring to their host states (Noll, 2003: 237). Although, as Matthew Gibney (2007: 74) has noted, it is possible to distinguish between refugees as themselves being burdens, and refugees as imposing objective costs on states, in practice it is easy to slide from the latter to former as shorthand.

  2. 2.

    Although responsibility-sharing can also be a domestic issue within states of asylum, given the existence of policies which disperse asylum seekers to different areas of such states (see Boswell, 2003), I restrict my focus here to the international plane.

  3. 3.

    The principle of humanitarianism may not only be a guiding consideration for the design of a responsibility-sharing scheme, but it may also motivate the design of one in the first place for, as Gibney (2004: 246) has commented, ‘a state committed to humanitarianism should encourage international cooperation when this will boost the availability of protection for refugees’.

  4. 4.

    Some have discussed potential exemptions from refugee responsibility-sharing schemes for states which systematically violate human rights (Schuck, 1997: 281) or those which would face a serious racist backlash that would endanger the refugees they hosted (Holtug, 2016: 286).

  5. 5.

    For the view that legitimate refugee responsibility-sharing involves two stages—with a duty to offer a ‘place of first refuge’ followed by a broader duty to offer asylum—see Owen (2018: 33, emphasis in original). The inclusion of refugees within their states of origin (i.e. those currently classified in international parlance as ‘internally displaced persons’) within the purview of international refugee responsibility-sharing would be a radical departure from existing practice, and is highly unlikely to be adopted by states.

  6. 6.

    Gibney (2015) has suggested that there can be a strong tension between the requirements of distributive justice among states and refugees’ choice, as what would be a fair distribution of refugees among states may well not be in line with their wishes. Nevertheless, this tension can be reduced by supplementing physical burden-sharing with financial compensation for states which host a disproportionate number of refugees (Bauböck, 2018: 147; Gibney, 2015: 461).

  7. 7.

    Here I leave aside potentially difficult practical issues concerning how such a scheme would respond to the continued spontaneous arrival of refugees to particular states, and also regarding what should be done if the number of refugees in need of protection exceeded the number of places available.

  8. 8.

    For the argument that states of origin owe states of asylum compensation for forcing their citizens to flee, see, for instance, Goodwin-Gill and Sazak (2015).

  9. 9.

    As Bukovansky et al. (2012: 215) have noted, ‘[i]f we restrict taking responsibility only to those who are directly causally responsible and/or culpable, then some harms suffered by innocent victims may never be addressed at all’ (see also Parekh, 2017: 104).

  10. 10.

    For a discussion of potential benefits of culpability as a criterion in international refugee responsibility-sharing, see Coen (2017).

  11. 11.

    For a proposal for a ‘refugee match’ system, in which states would indicate their preferences for certain refugees, while refugees would state their preferences for protection within certain states before being matched to each other, see Jones and Teytelboym (2017).

  12. 12.

    In this way, a system of refugee responsibility-sharing that incorporated the principle of reparation would need to draw a distinction between the ‘place of protection’ and the ‘costs of protection’ (see Owen, 2020: 92, emphasis in original). For the related argument that a just responsibility-sharing scheme should include ‘an option for states to choose between relocation of refugees to their territory and financial support for refugee integration in other states’, see Bauböck (2018: 141–142).

  13. 13.

    In addition to the question of whether external states may bear outcome responsibility for forced migration, David Owen (2020: 90) also sees states’ ‘relative contribution to and relative benefit from the conditions of background injustice that make the generation of refugees a prevalent feature of our global political life’ as directly bearing on the share of the general responsibility for refugee protection that they should assume.

  14. 14.

    This appears to be an inevitable consequence of accepting special responsibilities such as reparative obligations. As Robert E. Goodin (1985: 13) has put it more generally, such an acceptance ‘necessarily entails some watering down of our general moral responsibilities: our limited stock of time, attention, and resources must now be divided among some extra claimants; and honouring our special obligations therefore means defaulting to some greater or lesser extent on our other more general ones’.

  15. 15.

    I write ‘to the limit of its humanitarian duties’ in light of my point in Chapter 7 that states bearing only humanitarian duties to refugees may reach the limit of these duties before they find themselves at the limit of their absorptive capacities.

  16. 16.

    This weakness stands in stark contrast to the strength of the legally binding principle of non-refoulement (Betts, 2009b: 3). As a result, refugee protection has been characterised more by responsibility-shifting than responsibility-sharing, with states often willing to free-ride on the contributions of other states (Suhrke, 1998: 400), and erecting non-arrival measures that effectively force refugees to seek asylum elsewhere and contain them within the global ‘South’. For analysis of refugee burden-sharing in response to the recent European ‘migration crisis’, see Thielemann (2018).

  17. 17.

    This is entertained in passing by theorists such as Carens (2003: 100), Hathaway and Neve (1997: 195), and Miller (2007: 227). For critique of the more general view that redress for historic injustice could justly be decided unilaterally by either the wrongdoer or the wronged, see Amighetti and Nuti (2015: 388–389).

  18. 18.

    The United Nations General Assembly may be a more appropriate body for this politically contentious task than the United Nations High Commissioner for Refugees (UNHCR), given the latter’s ostensibly neutral and apolitical mandate and activities (see Lee, 1986: 567).

  19. 19.

    The reluctance of states to support institutions that may hold them accountable can be seen in the case of the International Criminal Court, which has been opposed by some major powers and African states. For analysis of the United States’ opposition to the Court, see Ralph (2007).

  20. 20.

    This pessimism is shared by theorists such as Joseph Carens (2013: 15), who considers that ‘there is such a big gap between the ideal refugee regime…and what democratic states are actually willing to do, that there is no realistic chance of the ideal refugee regime being implemented’.

  21. 21.

    One example of this in the context of global refugee protection is that the norm of non-refoulement, which distributes responsibilities to protect refugees on the basis of which state they enter to claim protection, incentivises measures to prevent refugees’ entry to a state’s territory.

  22. 22.

    I am grateful to Alexander Betts for first suggesting this possibility to me.

  23. 23.

    Hathaway and Neve (1997: 189) discuss what they call the potential ‘variants of affiliation’ to a ‘burden-sharing’ scheme, which depend on the strength of states’ interest in joining it, distinguishing between an ‘inner core’ of participating states that are most likely to border refugee-producing states and an ‘outer core’ of states less affected or concerned by refugee movements and which may be motivated to make fiscal contributions rather than large commitments to physical burden-sharing.

  24. 24.

    For discussion of the moral basis of this duty of non-refoulement, see Miller (2016: 84).

  25. 25.

    Relatedly, see de Shalit (2011: 325) for the view that ‘governments have a duty to prevent displacement…due to global warming, and not to assume that they can let global warming happen and then rectify the disadvantage caused or compensate for it’ (emphasis in original).

  26. 26.

    The danger of a ‘blame game’ may create a moral tension between effectiveness and justice, for while sidelining reparative justice in this context might facilitate agreement among states, it also leads to less equitable distributions of responsibility. As Robyn Eckersley (2016: 346) has argued in the context of climate justice, while the setting aside of historical responsibilities makes consensus more likely, it also ‘accelerates the skewed distribution of climate vulnerability toward the least privileged’.

  27. 27.

    This may be an example of the strategy for denying responsibility dubbed by Young (2011: 158) as ‘denial of connection’, which assumes that ‘the scope of a person’s responsibility includes all and only those persons and potential harms with whom an agent has a direct relationship’.

  28. 28.

    This might act as a reflection on the international level of the individual tendency, as Goodin (1985: 2) has observed, for our special obligations to ‘blind us to our larger social responsibilities’.

  29. 29.

    I owe this point to Megan Bradley.

  30. 30.

    As David Miller (2016: 173) has commented, there is a danger of what he calls a ‘moral double bind, under which the states involved are blamed for the effects of interventions that go wrong…and at the same time blamed for failing to intervene when intervention seems to be required’.

  31. 31.

    Such vigilance may be of particular value when states and their leaders undertake actions, such as military intervention, which are highly liable to dirty their hands in the sense discussed in Chapter 5. As Bernard Williams has put it, ‘only those who are reluctant or disinclined to do the morally disagreeable when it is really necessary have much chance of not doing it when it is not necessary’ and ‘a habit of reluctance is an essential obstacle against the happy acceptance of the intolerable’ (Williams, 1978: 64).

  32. 32.

    Whereas I discussed the ‘dynamic duties’ (see Sandelind, 2021: 125) of states to change their circumstances in order to fulfil their reparative obligations to refugees more fully in Chapter 7, it may be that citizens and civil society groups can also bear parallel duties to compensate for the reparative failings of their state by seeking to change its motivations and dispositions.

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Souter, J. (2022). Reparative Justice and International Refugee Responsibility-Sharing. In: Asylum as Reparation . International Political Theory. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-62448-4_9

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