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What Duties does the Global Political Community have towards Refugees? An

Analysis of the Relationship between State Sovereignty and Refugeehood.

Department of Politics

BA Politics with International Relations

Supervisor: Katy Wells

May 2016

Word Count: 9,999

Final Mark: 75

Exam Candidate Number: Y1469170

Abstract

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Inherent to the current international political system is the concept of state

sovereignty. The power sovereignty grants enables the state to fulfil

responsibility to look after the basic needs of its citizens, while no such

responsibility exists towards those outside the state’s jurisdiction. However in a

growingly globalised world, the creation of international political institutions

and the formulation of international law, the sovereignty of the state appears to

be becoming a redundant model. I will argue that state sovereignty and the

current international order that upholds the concept, is a detrimental harm to

the lives of refugees. The power it entitles independent states, allows states to

abandon their duties to refugees, manipulating international law for their

personal gain. I shall then illustrate that states and the international political

community do in fact have duties towards refugees, duties rooted in the

universal moral laws and human rights that are entrenched in international law.

These duties are violated by the current state system, a system that directly

enables the deprivation and harms faced by refugees. Only once we structurally

reform the international system on cosmopolitan moral norms will we be able to

fully fulfil the duties the global community have towards refugees.

Acknowledgments

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Firstly to my supervisor, Katy Wells: thank you for the guidance and feedback

you gave me, and especially your patience and assistance in helping me clarify

my own thoughts in regards to what direction I wanted to take this paper. It was

greatly appreciated.

I wish also to thank my mother and father for their continued support over the

past three years. The encouragement they gave me, as well as the interest they

showed in my written work and degree, without a doubt helped carry me

through till the end. I owe them so much. Thank you.

Table of Contents

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1. Introduction 5

2. Current State of Affairs 7

3. Who is a Refugee? 12

3.1. Issues with a Narrow definition 13

3.2. An Alternative Concept of Refugeehood 17

4. Refugees and State Duty 21

4.1. State Obligations to Refugees 21

4.2. Positive Duties 25

4.3. Negative Duties 29

5. A Cosmopolitan Global Order 34

6. Conclusion 40

7. Bibliography 42

1. Introduction

In 1938, representatives from 23 western states gathered in Evian,

southern France, to discuss whether to admit a constantly growing number of

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Jewish refugees, fleeing persecution faced in Nazi Germany. The result of this

nine-day conference was the majority of states, including both Britain and the

United States, decision to do nothing while condemning the actions of the Nazi

party (The Evian Conference, n.d.). While some states attempted to take in those

with political connections, financial recourses and leading intellectuals, many

were turned away, forcing them to return to Europe where they eventually

perished in the Holocaust (Carens, 2013: 192). On Monday 25 th of April 2016, the

British House of Commons voted against a cross-party amendment to the

immigration bill that would have resulted in the United Kingdom accepting 3,000

child refugees, echoing the 1938 decision (Mason, 2016). While I concede that

the two examples I have drawn on here cannot be directly compared, as one

cannot foresee the consequences of this recent amendment defeat, history does

give us a constant reminder as to what the consequences of these state decisions

can be. The government’s decision to exclude these children received

widespread criticism with many claiming it to be immoral and unjust, however it

was a decision they were legally entitled to make, a decision rooted in principles

of state sovereignty.

The concept of state sovereign gives all states within the international

community the legal right to autonomy over foreign policy decisions, the current

refugee crisis that is developing in Europe, as well as other parts of the world,

has led to the reemergence of a key ethical question. What duties do states, and

the international political community of states, have towards refugees? The

debate surrounding this question echoes that of the 1938 debate in Evian, which

concluded that no such duty existed over the sovereign state. Political philosophy

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surrounding the concept of sovereignty as the basis of international relations,

has tended to model itself on a similar political reality, exploring the relationship

between citizens and their state, yet rarely disputing the boundaries of state

power or the authority of state law in regards to non-citizens (Dummett,

2001:22). However with a global displacement count exceeding 50 million, the

world is witnessing a quantum leap in forced displacement, ethical questions

have began to be asked in regard to whether a universal moral duty to assist

transcends the authority of state sovereignty (Sherwood, 2014).

Thus the essential aim of this paper is to determine whether states, and the

global community of states, do in fact have a moral obligation to alien refugees,

and what these obligations consist of. I seek to challenge the power attributed to

state sovereignty within the global community, the power of which facilitates

their avoidance of legal, political and moral duties to the world’s refugee

population. I do so on the basis that the current structural make up of the

international political sphere and the emphasis that is placed upon state

sovereignty, a concept that is becoming redundant with the continued

globalisation of world politics and human affairs, not only can be considered a

constraint on state duties, but also constitutes as a direct infringement on the

positive and negative rights of all refugees. While political membership remains

inherently contained within the conceptual and territorial boundaries of the

sovereign states, refugees will remain outside the realms of humanity,

unprotected and ontologically destitute.

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State sovereignty and the system that maintains its relevance appears to be in

direct conflict with the universal rights and cosmopolitan norms that can be

found in the constitutions of liberal states and international political bodies

created to defend those rights. A study of this tension that is inherent within the

normative discussion surrounding refugees, illustrates the need for the

reformulations of the global political society away from a sovereign theory of

international relations in favour of one truly founded in and protective of

universal moral norms. Firstly, however, I shall explore the current international

system and illustrate that currently sovereign states prioritise “national foreign

policy concerns rather than humanitarian terms” when responding the refugee

crisis (Kushner & Knox, 1999: 11).

2. Current State of Affairs

Modern democratic states uphold two fundamental ideas, firstly that of

self-governance and secondly that of the territorially circumscribed nation-state

(Benhabib, 2005: 673), concepts both of which lead to a number of problems in

the discussion of a global response to any refugee crisis. To start with, self-

governance presupposes a rule of law that exists between and within

communities of equal citizens, and that the emphasis on a territorially confined

nation-state limits the rights and entitlements granted under said rule of law to

the citizens of that polis alone. Therefore, within a given territory and

community, a state’s power is both final and absolute. As a result some deem that

states are morally justified in privileging the interests of their citizens above all

others. Matthew Gibney coins this view “partialism”, a view characteristic of both

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conservative and constitutionalist realist readings of the global make-up (Gibney,

2004: 23). Thus we discover a second tension within the refugee debate: that

between the importance of the political concept of citizenship and the ethical

dilemmas that arise when refugees are separated from the state in which they

are deemed citizens.

Hannah Arendt, writing in 1951 about the emergence of European refugees since

the turn of the century, argued that the use of national identity to determine

citizenship deprived many refugees of any reasonable possibility of attaining a

new homeland. A lack of citizenship in a world divided amongst sovereign

nation-states has severe consequences, as these people are fundamentally

without any rights: because they no longer belong to any recognised community,

they are left without the protection of a state or “a community willing and able to

guarantee any rights whatsoever” (Arendt, 1973: 279). In an international

system where sovereign states are able to determine and formulate their own

policies in regards to citizenship and who can enter that state, refugees are left as

nothing more than outcasts. For Arendt, discussing Jewish refugees during

World War II, it was clear that “in a world where responsibilities and duties were

determined by citizenship, no state accepted responsibility for the refugee”

(Gibney, 2004: 2-3). Under a system that prioritises the political concept of state

sovereignty, the state’s obligation and duties lies solely towards the rights of its

own citizens. As soon as someone removes themself from this political sphere

(either through choice, or forced displacement), on has no citizen rights and,

more importantly, states have no obligations to help them. Human rights are

therefore impossible to enforce when outside the political community of

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atomistic sovereign states. Thus for Arendt “the loss of citizenship rights…

contrary to all human rights declarations, was politically tantamount to the loss

of human rights all together” (Benhabib, 2004: 50).

In what some may consider a violation of state sovereignty, the emergence of

international human rights law in the latter half of the 20 th century set about

eliminating the tension between political concepts such as state sovereignty and

citizenship, and ethically important concepts such as human rights. The 1951

Geneva Refugee Convention (GRC), for example, looked to legally define the term

refugee, their rights and the legal obligations of states with respects to these

people. The existence of a legal class of refugees in international human rights

law in turn necessitates the responsibility to exercise protection on behalf of

refugees. The Office of The United Nations High Commissioner for Refugees

(UNHCR), established in 1961, acts as the representative of the international

community, tasked with the function of organising and providing protection,

however states, too, have a duty of protection, despite what material or political

interests they have to do otherwise (Goodwin-Gill & McAdam. 2007: 1). This duty

is evident in the legal obligation of states to respect the principle of non-

refoulement, which broadly asserts that no refugee should be returned to any

country where he or she is likely to face persecution or danger to life or freedom.

(Goodwin-Gill, 1983: 70). Refugee law therefore can be considered a palliative

branch of human rights law, attempting to ensure those whose basic rights are

no longer protected in their own country (due to the specific reasons stipulated

in the GRC) are entitled to evoke rights of substitute protection from other states

(Hathaway, 2005: 5).

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Nevertheless international refugee law is an incomplete and unsatisfactory legal

regime of protection and relies heavily on “an internal concept of political

obligation and morality” (Chalk, 1998: 157). Under article 14 of the Universal

Declaration of Human Rights "everyone has the right to seek and to enjoy in

other countries asylum from persecution" (The United Nations, 1948: art.14).

However when referring to the GRC to determine a state’s duty in relation to this

human right, although the right for refugees to seek asylum in any state is

definitively recognised, no provision is explicitly made that obliges countries

actually grant it (Chalk, 1998: 158). The only stipulation is that a state cannot

return them to their country of origin if their liberty or well-being will be at risk.

“In the realm of asylum, states thus remain the final arbiters of the fate of

refugees in that they retain the discretionary power to both grant and deny

asylum” (Loescher, 1993: 39-40). Legally speaking however the “UNHCR has no

power to force states to provide asylum-seekers with even minimal

humanitarian treatment – its ‘coercive’ ability essentially consisting only of

diplomatic pressure and moral persuasion” (ibid). Therefore while international

law may seem to safeguard refugees from the prioritisation of state sovereignty

by nation-states, its ineffectiveness allows for national governments to interpret

the obligations, technically “imposed” on them, in different ways.

Accordingly, in response to legal constraints such as the principle of non-

refoulement, many states attempt to limit the number of asylum-seekers that

reach their borders and thus limit the number of refugees they are responsible

for. States employ “a number of technically permissible measures, including

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placing refugees in harsh, austere camps”, or using legal measures such as visa

restrictions to prevent displaced persons entering their territory (Loescher,

1993: 139). While state sovereignty, and the absolute control over entry policies,

is technically voluntarily violated through the existence of the GRC, the lack of

power of international bodies to enforce these documents consequently marks

all potential limitations to state power and decision making in relation to

refugees void of any real meaning. Consequently, it is clear that “there is now a

troubling disjuncture between law as declared and law recognised as a

meaningful constraint on the exercise of state authority”(Hathaway, 2005: 6).

The current global system in place to respond to the growing refugee crisis

leaves considerable scope for sovereign governments to perceive their

obligations in ways that suit their policy goals, rather than fulfilling the

humanitarian and moral duties they have to human beings in need (ibid: 139).

The refugee therefore, regardless of international refugee law, still occupies a

legal space that sits uncomfortably between the political principle of state

sovereignty and the competing moral and humanitarian principles entrenched

yet not enforced by international treaty. However, before we can fully challenge

the current systems failing surrounding refugeehood, one must have a clear

understanding of whom we consider to be a refugee.

3. Who is a Refugee?

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Although the GRC attempted to legally define the term back in 1951, the

word refugee remains a fluid concept with dozens of different definitions

proposed by different actors and political bodies. The term, when used in its

broadest sense, often generates the image of someone in flight from their

country of origin in order to escape some form of deprivation of liberty. Implicit

in this broad concept is the idea that a refugee is someone who is worthy of

being, and therefore ought to be, assisted (Goodwin-Gill & McAdam, 2007: 15).

Andrew Shacknove summarises the importance of and issues surrounding the

definition of a refugee when he states “a proper conception of refugeehood is an

important matter, for conceptual confusion – about meaning of refugeehood, its

causes, and its management – also contributes to the misery of both refugee and

host and to the inflammation of international tension” (Shacknove, 1985: 276).

Too narrow a concept of refugeehood will deny international protection to

countless numbers of people who are in dire circumstances while an overly

inclusive concept could be morally suspect, exhausting the systems created to

assist their needs (ibid). For the purposes of international law, states have

looked to limit the concept of the refugee, in doing so limiting those for whom

they have political and moral responsibility. The UNHCR conception, based on

the definition formulated by the GRC, declares a refugee to be one who:

"Owing to a well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political opinion, is

outside the country of his nationality" (UNHCR, 2011: 10).

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It is necessary to clarify, that, under such a conception of the refugee, those

fleeing their homes due to economic reasons, natural disasters, global warming,

or even those persecuted for reasons other than race, religion, nationality,

membership of a particular social group or political opinion, do not meet the

special criteria, and thus are excluded from the political and legal obligations

states have to assist them under international law. Therefore this definition has

been considered by many to be too narrow.

3.1 Issues With A Narrow Definition

Due to the narrow scope of the UNHCR definition, other political bodies

have formulated other or additional conceptions. For example the Organisation

of African Unity (OAU) conception builds on that of the UN, arguing that “the

term refugee shall also apply to every person who, owing to external aggression,

occupation, foreign domination or events seriously disturbing public order in

either part or the whole of his country of origin or nationality, is compelled to

leave his place of habitual residence in order to seek refuge in another place

outside his country of nationality (OAU, 1969, art 1). This broader definition

incorporates those affected by the actions of predatory or aggressive states,

whether directly persecuted or not. This conceptual difference between the two

definitions is a clear illustration of the fact that the normal political and moral

bond between the state and citizen can be severed in numerous diverse ways,

persecution being but one example (Shacknove, 1985: 276). This illuminates a

fundamental weakness of the Convention conception of refugeehood adopted by

the majority of international bodies responsible for the welfare of refugees. The

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definition covers only those who have a well-founded fear of persecution, and

consequently anyone in desperate or even life-threatening conditions, but not

considered the victim of persecution are not owed asylum or any other form of

assistance.

The principle of alienage, inherent in both the GRC and OAU definitions, also

raises a number of issues for the conception of refugeehood. It is easy to envisage

a group of people facing persecution and have been driven from their homes,

however due to their circumstances, are unable to flee across an international

boarder, so-called “Internally Displaced Persons” (IDPs) (Lister, 2013: 6). As of

the end of 2014, 38 million people were reported to be displaced within their

own country because of violence, however while many are also the victims of

human rights violations, they are not deemed entitled to the same rights as

refugees under international law (Internally Displace People Figure, n.d). It is

evident, therefore, that in the case of IDPs “an overly narrow conception of

refugee [contributes] to the denial of international protection to countless people

in dire circumstances whose claim to assistance is impeccable” (Shacknove,

1985: 276).

While bodies such as the UNHCR attempt to oversee the assistance for these

vulnerable people, IDPs legally remain under the protection of their own

government – even though that government might be the cause of their

displacement – and therefore they rely on the help of aid and charity for what

little protection it gives. The act of excluding these people from a legal

conception of refugeehood and therefore to deny them the legal right to aid

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seems puzzling when their need for humanitarian assistance seems as great as

those that do fit within the Convention definition. A similar criticism is posed by

Thomas Pogge, who challenged the idea that those who fall under the traditional

UNHCR definition are significantly worse of than other displaced peoples, and

therefore do not warrant greater moral importance when it comes to a states

duty to protect (Pogge, 1997: 15).

For example, “protecting someone from being killed by an attacker is not, in

general, [deemed] morally more important than protecting another from

drowning”, therefore someone who is being directly persecuted by a certain

actor surely should not hold precedence over someone who is indirectly being

persecuted, say an economic migrant who’s state has excluded him from

economic opportunities (Pogge, 1997: 15). The issue here is that types of

deprivation that any migrants face are relative, and therefore it cannot be said

with absolute certainty that direct persecution necessitates moral precedence

when it comes to assistance. To produce a definition of refugeehood that focuses

on such a narrow sphere of human oppression thus indirectly brands many other

forms of human deprivation as morally inferior. This can be considered nothing

more than an act of moral discrimination by states and international bodies.

It is evidently clear that having such a narrow definition of refugee comes at a

heavy price. The current system of refugee protection works through the

exclusion of, to name a few, those fleeing war zones, famine, and natural

disasters. The ethical undertaking of helping those displaced peoples who are

worse off is too relative and erratic, and thus our current political concepts fail in

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this task. And while the narrower the definition of a refugee the easier it is to

protect them, this is simply due to the fact that there are fewer of them in total

that can require the resources and assistance provided by nation-states.

The obligation states face to grant refugees asylum, or at least not to return them

to their country of origin, can lead many sovereign powers to adopt narrower

definitions due to the fear that they will have to shoulder the task of assisting

refugees unilaterally (Shacknove, 2985: 77). Therefore when considering a

broader definition than that coined by the GRC I shall approach it in isolation

from the specific duties one may consequently have towards refugees since the

“concept of refugeehood is prior to a theory and policy of entitlements” (ibid). As

Peter Chalk rightly points out: “ If international refugee law was truly based

solely on a moral and ethical concern for general welfare of people by virtue of

their common humanity, it would be more difficult for governments to deny

humanitarian treatment to a person, or group of people, just because they were

unable to meet the qualifications set down by the 1951/1967 persecution

standard” (Chalk, 1998: 158).

3.2 An Alternative Conception of Refugeehood

Attempts to extend and broaden the conception of refugeehood have

often been based on the ground that persecution cannot be distinguished from

other harms many people face and therefore should not be prioritised. A just

world, therefore, requires “all conditions that deny someone the ability to live

where he is in minimal conditions for a decent human life ought to be grounds

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for claiming” refugee status (Dummet, 2001: 37). A conception so defined would

clearly extend refugeehood to include those who have been displaced by other

deprivations such as famine, as well as many of those fleeing the abject poverty

that afflicts much of the third world (ibid: 25). This clearly is a radical difference

from the Convention definition currently adopted, and would heavily increase

the number of people states are deemed partly responsible for. I have already

demonstrated that to deny those facing other personal harms is a form of moral

discrimination, and therefore a just world requires a broader and alternative

conception. To broaden those entitled to refugee status, we must first establish

criteria that are common among all those displaced from their homes and can be

used as the basis of the conception of the refugee. I begin by referring back to the

definition as set out by the GRC.

The theoretical basis for the Convention definition of refugeehood is grounded

on the implicit notion that a) there exists a bond of trust and protection between

states and citizens, b) in the case of refugees this bond is severed, c) this severed

bond manifests itself in the form of alienage and persecution which are both the

necessary and the sufficient conditions for determining refugeehood (Shacknove,

1985: 275). This asserts an important claim, affirming that a “minimal relation of

rights and duties [exist] between the citizen and the state, the negation of which

engenders refugees” (ibid). Here, in separation from the specific maltreatments

refugees have faced, we are left with an important aspect of civil society, the

relationship between the state and its citizens and the protection citizens receive

within that relationship. The failure to protect the citizen’s basic needs

constitutes the ending of that civic relationship, and the necessity of the citizen to

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seek assistance elsewhere. The citizen thus enters refugeehood. Therefore at the

heart of refugeehood is the lack of state protection, the lack of which deprives

individuals of their basic needs (ibid: 277).

Theories of state formation commonly hold that states are formed when a group

of individuals seek to protect themselves from the insecurities of life, whether it

is protection from each other, or from resource scarcity and other complications

that can have a negative impact on their vital subsistence. In this positive

relationship between the state and its citizens, the sovereign is thus required to

provide an environment free from the extremities of anarchic life, which is rife

with threats to personal well being. While specific forms of deprivation such as

persecution certainly can be considered a consequence of or catalyst for the

severed bond between the citizen and the state, it is not a necessary condition.

Persecution is but the manifestation of a broader phenomenon: “the absence of

state protection which constitutes the full and complete negation of society”

(Shacknove, 1985: 277). It is therefore this absence of protection that is the true

basis of refugeehood, not the specific harm they face.

Alienage can also be considered a subset of a larger concern: the ability of the

international community to gain access to displaced peoples and therefore their

ability to assist them (ibid: 283). IDPs, who are unable to cross an international

border, have been displaced from their homes for a number of different reasons,

just as those who have escaped the constituency of their state of origin. They too

are victims of state failure to protect their vital needs. This leads Shacknove to

observe, “conceptually… refugeehood is unrelated to migration. It is exclusively a

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political relation between the citizen and the state, not a territorial relation

between a countryman and his homeland” (ibid). Yet those who have been

deprived of a basic need by the lack of state protection must still be able to

access the international political community whether this is done by crossing an

international frontier or by the process of which international bodies are given

access to state in which people are displaced and cannot be protected by the

current sovereign state. In 1972 the Sudanese government made a formal

request for international assistance in regards to the growing population of IDPs,

which resulted in the UNHCR sending relief in the form of essential supplies and

other important measures (Macalister-Smith, 1985: 44). If the international

community has access to persons of which the state has failed to protect, I see no

reason as to why they should not therefore be considered within the conception

of refugeehood, and therefore agree with Shacknove who defined the refuge as:

“persons whose basic needs are unprotected by their country of origin, who have

no remaining recourse other than to seek international restitution of their needs,

and who are so situated that international assistance is possible” (Shacknove,

1885: 277).

The negation of one’s relationship with one’s state therefore has troubling

implications. I refer back to the dangers of being stateless and displaced as posed

by Arendt, they too were robbed of their membership to the global political

community and thus stripped of the human rights membership entitled them.

When trying to formulate a coherent and fulfilling conception of refugeehood, the

type of “suffering, of which there has always been too much on earth, is not the

issue, nor is the number of victims. Human nature as such is at stake” (Arendt,

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1973: 458-9). To limit refugeehood to those who have been persecuted and have

fled across international borders is therefore to deny the millions of others,

whose citizenship and the relationship that entail with their state has failed, of

their fundamental human rights. Moreover if one adopts the normatively

plausible conception of a refugee as someone who requires the substitute

protection of a new state because their fundamental human rights cannot or will

not be protected by their state of origin, one cannot limit states obligation of

assistance to only those who fit within the criteria set out by the GRC and the

current international system. Now that a clear definition as to who should be

considered a refugee has been determined, this paper will approach the central

discussion as to whether states do in fact have duties to these individuals.

4. Refugees and State Duty

As previously stated, the conception of refugeehood, as one who is

deprived of their basic needs due to the failure of state protection, is

independent of any procedural and institutional issues of what is owed to these

refugees and what ought to be done (Lister, 2013: 13). However those concerned

with what duties are owed to refugees will surely be frightened by the prospect

of a conception of refugeehood entwined with the basic needs of individuals. Half

the world would become bona fide refugees overnight, having untold

consequences on an already overburdened international system seeking to

respond to the refugee crisis (Shacknove, 1985: 291). Determining exactly what

duties the international community have towards refugees therefore becomes

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increasingly important now that we have a clear concept of whom these duties

are owed too.

First I shall briefly examine the roots of these duties and respond to those who

would argue that such duties do not exist.

4.1 State Obligations to Refugees

In light of a conception of refugeehood that could include so many different

people, facing many different harms, some have claimed that despite good

grounds for these people to be aided, it does not ultimately impose such a duty

on other states. This debate is rooted in discussion surrounding “Cultural

Relativism” and “Moral Universalism” (Caney, 2005: 26), a discussion that I shall

not attempt to cover fully in this paper but concisely illustrate that the existence

of moral universal principles demands a universal duty to assist.

I draw on O’Neill’s definition of moral universalism as that which has two key

claims inherent to it. Firstly, in regards to the “form” of ethical principles, moral

universalism simply asserts that the same values apply all persons; there is no

discrepancy in the values persons within a group are entitled to claim. Secondly,

when discussing the “scope” of such principles or the group in which these

principles apply, moral universalists extend membership to all (O’Neill, 1996:

11). Important to this discussion is the fact that such values are deemed to exist

in international law, evident within the entrenched concepts of human rights.

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The existence of the Universal Declaration of Human Rights (UDHR) raises a

significant feature of universalism, demonstrating that such concepts of

universal ethical principles are not only deemed to apply to all, but that they are

also to be observed by all different cultures and nationalities within the global

community. While international law would suggest some form of overlapping

consensus between states, I do not consider this a necessary part of

universalism, only that all states must comply with them under international law.

As Charles Beitz rightly points out, “to say that human rights are universal is not

to claim that they are necessarily either accepted by or acceptable to everyone,

given their other political and ethical beliefs. Human rights are supposed to be

universal in the sense that they apply to or may be claimed by everyone” (Beitz,

2001: 274).

Such a conception of global moral universalism is rejected by Michael Walzer

who, while still universalistic in nature, applies universal principles to the nation

state. Specifically Walzer argues that nation states have the “universal” right to

be, firstly, self-governing and, secondly, to have the ability to affirm and abide by

their own values. This Walzer refers to as “reiterative universalism” (as cited in

Caney, 2005: 30). Such a claim would of course eradicate any duty the state is

deemed to have in regards to refugees, on the basis that its sovereignty grants it

absolute power over whatever values it chooses to uphold. I reject Walzers

reading of universalism, as a transcultural perspective such as this not only

rejects the concept of state duty to these vulnerable people, but could also

expose refugees to repulsive customs or acts. Under such a conception of

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universal state sovereignty, it is easy to envisage how acts of slavery and other

moral wrongs could be condoned by some cultures (ibid: 32).

While others accept that moral universal rights and ethical principles do exist,

some maintain that this alone is not enough to enforce a duty of protection on

states. That is, while refugees may have an ethical and moral claim to be assisted,

this does not immediately constitute a moral obligation by the state. Those who

endorse such an opinion often root their views in a concentric-circle conception

of morality (Shue, 1980: 134). This term refers to the idea that one’s moral

responsibility is greatest to those who are closest to us, and therefore

responsibility and obligations, first and foremost, exist only between compatriots

(ibid). When applying this notion to the political realm of the state, one is greeted

by a trustee theory of state government that claims: “the proper role of every

national government is primarily or exclusively to represent and advance the

interests of its own nation” (ibid: 139). I shall simply respond by stating that the

idea that shared nationality constitutes some overriding moral bond between

citizens holds no weight. A number of transnational rival loyalties and

“subnational communities” exist in which it could be argued people have greater

moral bonds (ibid: 137) – religion for example – while the so-called moral bond

between citizens and compatriots can also be seen to be challenged by the

multitude of different cultures, political views and principle that can exist within

a state. As yet there is no evidence of what is distinctive between the relationship

of compatriots that makes them morally significant, or at least more so, than

other transnational relationships.

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Above I have responded to two key challenges to the idea that states have duty to

refugees. Following a conception of moral universalism that illustrates universal

human rights exist between all peoples, neither state sovereignty nor nationality

can diminish the moral weight these rights hold internationally. Therefore state

duty toward refugees is rooted in “the recognition of the universal status of

personhood of each and every human being independently of their national

citizenship” (Benhabib, 2004: 68). As universal human rights transcend

nationality, the idea that the state only has duty to those within its borders holds

no weight. Duty to uphold the universal moral values, such as the human rights

entrenched in the UDHR, therefore is a universal duty. While moral universalism

may illustrate the obligations of states to assist refugees, it does not set out any

criteria for the kind of assistance they are obliged to give. I shall now attempt to

tackle this issue, however before continuing with my line of argument it is

necessary for me to distinguish between the two conceptions of duties I shall

discuss.

To draw on Hugh Breakey: “positive duties oblige duty-bearers to actively

perform actions or pursue goals. Such duties differ from negative duties, which

prohibit actions (‘thou shalt not ...’)” (Breakey, 2015: 1198). One can understand

a positive duty therefore as the duty to actively assist refugees in their

achievement of corresponding positive human rights, such as rights to have one’s

basic needs fulfilled. Negative duties rather prohibit a state, or any person or

institution, undesirably interfering with the lives of refugees, as to do so would

be to infringe on their human right not to be interfered with or harmed by others

(Patten, 2005: 20). These two forms of duty, complicatedly, may be seen

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inherently linked with each other, as protecting negative rights may at times

require performing positive duties (Shue, 1996, pp. 37–40). However I shall

approach the two forms of duty in separation from each other.

4.2 Positive Duties

Walzer argues that refugees have suffered a political loss, the loss of their

political membership and political belonging, a loss that can only be rectified

through admitting them into our country – to admit refugees into out country

was thus our moral obligation to refugees (Parekh, 2013: 3). Walzers theory of

state moral obligation therefore raises the question of whether the state has

positive duties a state to assist the betterment of refugees, a duty designed to

positively allow refugees to overcome the impediments they face as a result of

their predicament, a duty that will allow refugees to pursue their goals and

interests. If we are too support the claim that the state does in fact have positive

duties to refugees, such as that of admittance into its territory, we must turn our

attention to the harms suffered by refugees as a result of refugeehood, harms

that infringe on their positive rights.

Once a state fails to protect the basic needs of its citizens, the political bond and

contract on which that citizenship is built is broken. Whether the individual is

displaced internally, externally, or unable to flee, I argue that once a state fails its

duty of protection, the political bond is broken and the individual is thus left

stateless. The harm associated with being a refugee, and belonging to “no

recognizable international community”, is that they are fundamentally rightless

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in a global order where states are the lead protectors of rights (Arendt, 2003:

150). However in order to ascertain how refugees’ positive liberty is being

infringed I shall refer to the ontological harms Arendt claims also develop once

one loses the protection of the state and falls into refugeehood. These ontological

deprivations can be divided into three distinct dimensions: firstly the loss of

identity; then the exclusion from humanity; and, finally, the loss of ones ability to

be recognized as meaningful (Parekh, 2013: 7). For Arendt the journey into

rightlessness and statelessness deprived people “of all clearly established, official

recognised identity” (Arendt, 1978: 287). The loss of a personal and political

identity that normal citizens maintain, is to be considered an individual void of “a

profession, without a citizenship, without an opinion, without a deed by which to

identify and specify himself” (ibid: 302) and therefore to be seen as nothing but a

human being in the barest sense.

The consequences of being deprived of one’s identity is to lose any autonomy in

directing one’s own life. Rather than having a unique identity or the identity

given to them as a political subject, they are dehumanised and turned into

nothing more than “bodies to be cared for” (Parekh, 2013: 8). This is evident if

we look at the system of international aid, a system of charity rather than duty

that only gives refugees some form of subsistence, while maintaining their

rightlessness and identity-deprived state of being. Social and political non-

existence is a necessary condition for the beneficiaries of this aid (ibid), a

condition that infringes on the individuals positive right to be autonomous.

However all refugees incorporated within the broader conception can be

considered abandoned by the international community. Those who face

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economic deprivation as a result of their state’s failure to provide adequate

opportunity, find themselves “economically outside the common world” unable

to participate in the global or local economy and abandoned (ibid: 9). Those

fleeing war, natural disasters, or even climate change have lost their political and

social communities, and have therefore lost the public sphere in which their lives

were once given meaning. They are left abandoned, removed from the “affairs

which go on among those who inhabit the man-made world together”

participation in which is necessary for any individual to affect the world in a

meaningful way (Arendt, 1998: 52).

It is evident therefore that to be forced into refugeehood is more than a political

harm, it is harm to a person’s very ‘being’. Abandoned by the global community,

refugees loose their unique identity and the ability to act meaningfully in life. “To

be without a meaningful public persona and public stage on which to appear,

stateless people [refugees] are judged not judged…according to who they are –

but according to how they are seen by others – according to what they are”

(Parekh, 2013: 12). Therefore to be a refugee is to lose all liberty over who one is

and who one wants to be in life, it is the total deprivation of the positive right “of

the individual to be his own master” (Berlin, 1969: 131). As we have already

granted the idea that state do have a duty to refugees on the basis of their

universal human rights, the deprivation of their humanity would seem worthy

reasoning to deem that this duty should be positive in nature, a duty to assist

refugees to overcome the ontological harms inherent in statelessness.

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While to grant refugees asylum would be a progressive step in protecting the

positive liberty of stateless and unprotected individuals a number of issues

remain. “A realistic concern is the sheer size of the potential demand” (Carens,

1987: 260). I have already revealed the necessity of expanding the definition of

the refugee. While I defend the right of every refugee to be granted asylum, it is a

credible concern that states would not be able to cope with the increased

demand. The current global order still holds, in my view erroneously, state

sovereignty an absolute necessity, and, as Megan Bradley reaffirms: “in the

absence of solutions that transcend the sovereign power of the state to include

and exclude, voluntary repatriation… and resettlement cannot eliminate the risks

of rightlessness” and other harms refugees face (Bradley, 2014: 107).

Furthermore, in the absence of such solutions it is unlikely that states will accept

their positive duties towards refugees, as while the liberal state system is rooted

in the fundamental idea of universal moral equality, they too seek to protect the

power of the state to govern as it sees fit. We are therefore still faced with “an

irresolvable contradiction between liberal theory’s apparent universalism and its

concealed particularism” (Cole, 2000: 2).

I shall now demonstrate while we do indeed have negative duties towards

refugees, an idea more readily accepted by the majority, such a duty requires far

more from the global community than a simple obligation not to return asylum

seekers to the source of their impairment.

4.3 Negative Duties

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In order to illustrate that the global community of states also have negative

duties to refugees I shall draw on the work of Thomas Pogge, who argued that in

regards to the global poor, “today’s massive and severe poverty manifests a

violation by the affluent of their negative duties” (Pogge, 2005: 93). While

Pogge’s only intended his argument to extend to the duty of the affluent towards

those who suffer from poverty, I shall expand on his claims in order to illustrate

that the current global order consequently leads to the violation of a state’s

negative duty not to harm refugees.

Pogge’s critique of the current global system stemmed from the concept that “we

– the more advantaged citizens of the affluent countries – are actively

responsible for the most of the life-threatening poverty in the world” (ibid: 92).

Therefore when discussing the duties one has to the poor “we must stop thinking

about world poverty in terms of helping the poor” (Pogge, 2002: 20), but rather

draw our attention to the ways in which the powerful and rich impose an

international order upon the poor, an order that denies them the very means to

subsistence and therefore their livelihood (Patten, 2005: 20). Drawing on the

Lockean conception of a state of nature, Pogge argues that the radical inequality

is inherently linked with the fact that those who hold power gain a number of

advantages in the “use of a single resource base”, a resource base that the worse-

off or the weak are excluded from without compensation (Pogge, 2002: 202).

This exclusion of the poor and weak manifests in harming those individuals who

are unable to receive their proportional share of the world’s resources, forcing

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them below the Lockean state of nature baseline he established necessary within

a just international order. Pogge points towards World Trade Organisation

(WTO) negotiations in which affluent countries “insisted on continued and

asymmetrical protections of their markets through tariffs, quotas…greatly

impairing the export opportunities of even the very poorest countries” (Pogge,

2005: 105). Therefore world poverty illustrates not just the injustice of state

failure to fulfil their positive duties in aiding the poor, but the injustice that

“consists in the imposition of a skewed global order that aggravates international

inequalities” (Pogge, 2001a: 16). Here we see the institutional a system manifest

itself in a violation of our negative duties.

Secondly affluent states themselves “collaborate in imposing [these] unjust

institutions upon” the poor, using the system to their advantage and therefore

directly harming the poor themselves (Pogge, 2005: 99). The same, I hold, can be

said to the international system and its relationship with refugees. The expanded

definition of refugees already incorporates those whose states have been unable

to protect their basic economic needs. It does not take much imagination to

extend Pogge’s claim that the international state system is partly to blame, and

that the individuals negative right not to be harmed is being violated by the

states that uphold and maintain the system. If we consider refugees who are

fleeing war-torn areas of the world such as current mass migration from Syria, it

soon becomes apparent the influence foreign states have on the predicament

these people find themselves in. Involvement by powerful states such as Russia

and the USA in supporting different actors within the conflict can be seen as a

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direct influence on the instability the region currently faces and a violation of the

negative duty not to harm.

Pogge also sought to show that the number of corrupt, authoritarian, and

harmful leaders many states have, the result of which is a multitude of

unprotected individuals whose basic needs are not being met (refugees), is

strongly influenced by “whether the global order recognises such leaders…as

entitled to sell us their country’s resources, to borrow in its name, and to use the

proceeds to by the means of international repression” (ibid: 103). Therefore it is

plain that the actions of powerful and wealthy states, by working with such

leaders, can be directly associated with the deprivation many refugees face. Thus

the negative rights of refugees can be considered directly violated by the actions

of states that often claim to uphold universal basic human rights. So it is essential

that states understand their moral obligation to uphold their negative duty to not

harm refugees through their actions. As Hugh Breakey states; “anybody who

accepts any sorts of rights at all, I think, will accept this familiar rights-based

duty: ‘Each and every person has a legal duty owed to every other person not to

physically assault that person’” (Breakey, 2015: 1200).

However I shall now consider how the make-up of the international global order

itself also contributes to the failure of negative duties. If we look at the make up

of the international order of independent states, it is clear that “any group

controlling a preponderance of the means of coercion within a country is

internationally recognised as the legitimate government of this country’s

territory and people – regardless of how they came to power, how they rule or

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whether the population supports it” (Pogge, 2001b: 334). The very fact that so

many corrupt states and states that fail to protect the basic needs of their

citizens, abandoning them to refugeehood, receive international recognition only

further adds to the harms inflicted on the helpless refugee. State sovereignty

therefore bestows power even on states who fail in their obligation to protect

their citizens, giving them power to freely dispose of the country’s natural

resources as they see it, free from any true restraints from the international

community (ibid). This is an abrogation of negative duties by both international

states and the rogue state. Yet it is a violation with its roots in the conception of

state sovereignty that underpins the global order.

Negative duties are also violated by a global order that maintains and imposes an

atomistic system of international governance, where citizenship is inherently

linked to national identity, and one’s entitlement to have rights so inherently

linked to citizenship. Drawing on the Rawlsian thought experiment of the “Veil of

ignorance” Seyla Benhabib asserts; “citizenship status and privileges which are

simply based upon territorially defined birthright are no less arbitrary than one’s

skin color and other genetic endowments” (Benhabib, 2004: 95). A system that

upholds the arbitrary link between one’s citizenship and their human rights

cannot be considered just, and furthermore, can be considered to violate the

refugee’s right not to be harmed as, as I have previously demonstrated, states are

under no legal obligation to fulfill the positive duties moral universalism

necessitates. “We are upholding a shared institutional order that is unjust by

foreseeably and avoidably producing inequality”, and inflicting harm on those

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deemed stateless and rightless, a violation of the negative rights of refugees

(Pogge, 2005: 101).

Accordingly if one is to envisage a system where both the positive and negative

duties states have towards refugee are to be upheld, we are left with the need for

global structural and institutional reform. The UDHR formulated by the current

flawed international system would appear to support such an idea, claiming

“everyone is entitled to a social and international order in which the rights and

freedoms set forth in this declaration are fully realised” (United Nations, 1948:

art 28).

The more prominent claim made in this chapter has been that rather than simply

the neglect of negative duties it is the global system and actions of states that is

the cause of the harms directly inflicted on refugees. Therefore to fulfil our

negative duty it is evident that the current structure of the international political

order must be reformulated. Hence I shall finish by offering a cosmopolitan

conception of global society that can be compared with the present order and the

harms it causes, in order to formulate an alternative system of international

relations.

5. A Cosmopolitan Global Order

According to Held, Cosmopolitanism seeks to establish the ethical, legal

and cultural basis for the political order (Held, 2007:10). Held proposes eight

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fundamental principles that can be universally shared as a means of protecting

the equal moral significance of all peoples. These principles also constitute a

critique of the sovereign rights of communities currently upheld by the

international global order. These therefore paramount principles consist of: 1)

equal worth and dignity; 2) active agency; 3) personal responsibility and

accountability; 4) consent; 5) collective decision-making about public matters

through voting procedures; 6) inclusiveness and subsidiarity; 7) avoidance of

serious harm; and lastly 8) sustainability (ibid: 12). I shall now unpack a number

of these principles, in order to determine what consequences they would have if

applied to the current international system. The first principle once again refers

to the notion that the individual, and not the state, is the ultimate unit of moral

consideration. As found within the doctrine of moral universalism, all humans

can be considered to belong to one moral realm, in which all have equal moral

value. Held refers to this as “egalitarian individualism” (ibid). While not denying

the importance of different cultural communities, it limits their moral validity

and therefore imposes that such communities treat all human beings with equal

respect, recognizing their “dignity of reason and moral choice” (ibid). This is not

conducive to the concept of state sovereignty in which a state attempts to

preserve its citizen’s status quo by limiting their duty to individuals outside its

domain.

The second principle builds on the notion of egalitarian individualism and refers

to human agency as active. For Held the supreme capacity of the individual was

to act and shape the human community, the capacity to self-reason, to be

reflective and not accept a world that has been shaped by the choices of others,

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but “act otherwise”(ibid). Although this is similar to the issues of refugeehood

raised by Arendt, and that the humans need to be active within the political

community, something that is prevented by the loss of citizenship and political

membership. Held’s conception of agency makes an important addition, the

notion that an individual’s autonomy necessitates an active role in and ability to

change a system created by others. A structure that denies asylum seekers and

refugees any rights to change the system in either country of origin or their

adopted state contradicts this concept.

The ontological harm caused by refugeehood therefore is aggravated further by

the notion that, as they have no voice, they are unable to change a system in

which they had no part in making. The ability to be included within the discourse

surrounding the decision-making processes that affect you therefore can be

considered a fundamental and universal right of the individual. This is advocated

by Benhabib, who sees cosmopolitanism as “a normative philosophy for carrying

the universalistic norms of discourse ethics beyond the confines of the state”

(Benhabib, 2006: 18). Discourse theory starts from a universal moral standpoint

that the individual is morally entitled to be part of any conversation that may

affect their livelihood in any way. As a result one is obligated to justify their

actions, or the actions they plan to make, to those who it could conceivably

impact (ibid). One, therefore, is obligated to justify the current state of affairs to

refugees. Refugees, stateless and without political membership, are robbed of

their very autonomy, unable to engage with or alter the system responsible.

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Thus it is clear the current conception of membership, a conception rooted in

state sovereignty and morally arbitrary factors such as the territorial location of

one’s birth, has no justification in a moral world of international relations, the

mass movement of people and technological advances that allow for supra-

national relationships. Cosmopolitanism looks to transcend these archaic forms

of membership in favour for one that can be justified to all those who it

conceivable affects, unlike the current “unacceptable structures of difference

which reflects conditions that prevent…the pursuit of [our] vital needs” (ibid:

13). I consider this to be a damning critique of the state system, one that

illustrates its unjust nature.

Held’s framework of a cosmopolitan order therefore establishes a baseline

against which we can compare and critique the current state system. The current

reliance on a now largely irrelevant conception of state power results in a failure

to respond to the moral obligations generated by refugeehood and moral

universalism. I instead propose an alternative international structural make up

that succeeds in incorporating both the moral and political cosmopolitan

principles I have discussed above. That of the world state.

Such a conception of the global order was put forward by Anarchis Cloots who,

drawing inspiration from the 1789 Declaration of the Rights of Man, argued that

the liberal social contract tradition compelled one to secure a cosmopolitan

world-state (Kleingeld, 2006: 560). Cloots subscribes to a number of the

different values found within the declaration, most prominently the ideas that all

men are free and equal, the preservation of human rights is the central objective

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of political association, and, in order to preserve members’ rights, a political

association retains the authority to coerce. This authority is in place for the

advantage of all, to protect them from the harms inherent within a state of nature

(ibid: 564). Interestingly this theory of social contract is also used to support

state sovereignty, however Cloots contends that the “organisation of humans

into a plurality of states does not end the state of nature, but merely shifts it to

the international realm” (ibid: 565). Rather than other individuals harming the

rights of fellow citizens, we now have states harming other states and infringing

on the rights of individuals within the international sphere, the harms placed

upon refugees by states being a central example. Cloots therefore advocated the

establishment of a “republic of the united individuals of the world” (ibid: 561). A

single, all-encompassing government within which all individuals have equal

standing. It is therefore evident that to become a world citizen would overcome

the current immoral and unjust system of citizenship that robs refugees of their

autonomy and humanity.

While Held does not advocate a world-state as an answer to the unjust global

order, he does approach the issue of citizenship and membership. Held’s fifth and

sixth are concerned with “drawing boundaries around units of collective decision

making” (Held, 2007: 14). In identifying that the state still plays an important

part in a global society, Held establishes that anyone who is “significantly

affected by public decisions, issues, or processes should…have an equal

opportunity, directly or indirectly…to influence and shape them.” (ibid).

Therefore it follows that while it would be unreasonable for a member of a

foreign community to be involved in a local decision, the outcome of which does

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not affect his or her livelihood in any significant way, an imperative is that they

be included on decisions that will affect their lives. Held establishes this principle

to maintain state importance within cosmopolitanism, emphasising the need for

consent within the decision-making process, a non-coercive political process

within which one can negotiate one’s life chances (ibid: 12). While this

necessitates the limitation of the sovereign powers granted to state, and their

inclusion of non-citizens, it could conceivably achieved without a fundamental

structural reformulation of the international political system. If states accept

their cosmopolitan duties, or international bodies were able to enforce

international law effectively, surely these cosmopolitan values would be met.

In order to respond to this question, I refer to Held’s own seventh principle: the

avoidance of serious harm. This principle stipulates that until a time in which his

cosmopolitan norms of justice have been implemented and are in place to

protect all peoples, priority should be given “to the most vital cases of need”

(ibid: 14). Therefore in regards to refugees, for the reasons stated above but

particularly their loss of humanity, we should certainly prioritise refugees. This

supports the claim that states do indeed have positive duties to prevent the

harms refugees face, whether through admitting them through asylum or, due to

the difficulties granting such vast numbers asylum would cause, looking to

directly prevent harm at the source. As Lister reasons, “it is highly plausible that

we may best meet their [refugees] needs…by helping these people in alternative

ways” such as the redistribution of wealth and resources (Lister: 2013: 15). This

positive duty conceivably could occur through institutional change, or through

states adopting and fulfilling their cosmopolitan obligations to help fellow moral

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individuals. However if the requirements of the principle of avoiding serious

harm are going to be fully met, we necessarily must eradicate all the causes of

severe harm inflicted on refugees, inflicted “against their will” and “without their

consent” (Barry, 1998: 207). Furthermore, as I have already postulated that one

of the main causes of a severe harm all refugees face is in fact the result of the

structural makeup of the international system itself and prominence of state

sovereignty, it is clear that this cosmopolitan principle obligates a total structural

reformulation of the global community, rather than just the adoption of

cosmopolitan norms by current institutions and political actors.

Thus I have illustrated that the use of cosmopolitan principles of morality and

political make up, as a baseline on which to judge the current order, not only

offers advice on how one can meet their moral obligations to refugees within the

international system, but in fact also imposes moral obligations upon us as a

global community to reformulate global society away from the now annulled

concept of state sovereignty.

6. Conclusion

This paper has sought to demonstrate that the failures of the current

global order to respond to their moral and political duties towards refugees,

demands the evolution of the global civil and political society. Only then will we

overcome the tension between the sovereign right of a state to control its own

territory and the universal norms fundamental to liberal political theory and

international law. The legal definition of the refugee and its narrow focus on

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those who have been personally persecuted fails to truly capture the cause root

of refugeehood, maintaining the states ability to limit the number of people they

can be held responsible for. It becomes apparent that one cannot define

refugeehood in relation to the relative and subjective qualities of how these

individuals have been harmed, but instead one must seek to determine the

foundations of these harms inflicted upon refugees, the foundations of which lie

in the sovereign states failure to look after the basic needs of its citizens.

Furthermore, if one is therefore to contend that refugees are those whose states

fail to protect their basic needs it is apparent that the number of individuals that

states legally have duty to assist is far greater than currently imagined. If one is

to uphold the moral universalism, within which the liberal international political

system is ingrained, then we must defend the idea that states do have duties

beyond their national borders, especially to those the state sovereign system has

failed to protect and forced into refugeehood. Refugees face a number of

ontological harms, the result of which is the loss of their human rights, their

ability to be recognized as fellow human beings and engage in a society of people,

the act of which is fundamental to maintaining ones autonomy. The refugee is for

all intensive purposes silenced and abandoned outside the realm of humanity.

While this paper argues this is sufficient grounds to impose a moral duty to

protect and prevent the harms associated with loss of citizenship, it also seeks to

establish that the current structure of international relations, one based on state

sovereignty, constitutes a direct violation of states negative duties: the duty not

to harm. The failure of many sovereign states to protect the basic needs of its

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citizens, and therefore the creation of millions of refugees is only possible in a

system in which state sovereignty is seen as the supreme and singular protector

of human rights. The arbitrary relation between ones citizenship to a nation and

ones ability to have basic human rights is a central cause of the harms associated

with refugeehood, a relation sustained by the current global order.

One must therefore turn to a cosmopolitan theory of global community, a theory

that both illustrates the failures of the current system and demonstrates the need

to institute cosmopolitan norms of justice within the international system. This

paper concludes the failure of a state sovereignty system of international creates

a moral obligation to restructure the international global order on the base of

these norms of justice and morality. Accordingly the global community has a

moral duty to become a world-state, inclusive of all world citizens.

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