Bradley Hillier-Smith (University of St. Andrews), "The Ethics of State Responses to Refugees"

Routledge, 2024

By Bradley Hillier-Smith

There are over 43 million refugees worldwide who have been forced to flee their own states due to war, violence, and extensive human rights violations, and who seek adequate safety elsewhere. The majority of those refugees once they are displaced reside in the Global South, where they face either a passive existence for prolonged periods of time in refugee camps, or a precarious existence and extreme poverty in urban centres, or embark on perilous journeys to reach safety in the Global North, with thousands losing their lives along the way. Whether in the camps, urban centres, or on journeys, refugees continue to be subjected to extensive human rights violations.

How should the stable and affluent states of the Global North (such as the US, UK, Australia, and EU states) respond this situation of refugee displacement? Some philosophers argue that these states should continually take in many refugees until the point of societal collapse. Other philosophers argue that states are not necessarily obligated to admit a single refugee. Some politicians argue for radically expanding resettlement schemes, others seek to prevent refugee arrivals and even deport them if they arrive. Some states have taken in over a million refugees, while others erect concrete walls and barbed wire fences. Some citizens march the streets in their thousands with placards proclaiming ‘refugees are welcome here’, while others, as we have seen in recent weeks, are moved to riot and even attempt to burn down hotels housing asylum seekers.

How states should respond to refugees is then a subject of much and often dangerously intense disagreement. My book aims to provide a novel account of what an ethical response to refugees would be. It does this by developing an understanding of the specific moral obligations that states have towards refugees, based on core moral commitments that are widely-shared in common morality, but which have been overlooked both in the philosophical debate and certainly in many current practices towards the displaced. These moral obligations will then constitute the components of an ethical response.

To understand the moral obligations (or, in other words, moral duties) that states have towards refugees, this book takes a different approach. Rather than starting from the state as the first point of analysis to understand what obligations these states owe, this book takes as its primary focus the situation of refugees themselves both in the causes of their displacement and whilst they are displaced to identify certain morally salient facts that may have been overlooked but which are essential in understanding moral obligations towards them. This focus allows us to better understand both the negative duties that states have to not harm or violate the rights of refugees, and the positive duties that states have to provide protection and security to refugees. We need an understanding of both the negative and positive duties to refugees to understand what an ethical response would be.

Presently, the dominant philosophical approach to understanding obligations to refugees is what I call the Duty of Rescue Approach. This approach typically invokes Peter Singer’s famous case, in which you are an innocent bystander whom can easily save an innocent drowning child, as its foundation to derive the principle that one has a moral obligation to help a person in desperate need if one can do so at little cost to oneself. This approach then applies this principle to refugees: states have an obligation to help refugees who are in desperate need (either through aid, resettlement or granting asylum) if they are able to do so at little cost to themselves.

In this book, I suggest that this approach is important in understanding obligations to refugees, but in its present form it faces two limitations that stem from failure to sufficiently engage with certain morally significant facts of the situation of contemporary refugees. Engaging with these limitations yields an understanding of the negative and positive duties towards refugees.

The first limitation is that the approach does not sufficiently engage with the fact that many states in the Global North are not mere innocent bystanders disconnected from the harms that refugees face once they are displaced. Instead, these states actively adopt a variety of policies and practices in response to refugees seeking safety on their territories including border violence, forced detention, forced encampment, and the containment of refugees in regions where they face extensive threats to their human rights. These policies and practices result in extensive mental and physical suffering and human rights violations for refugees, and may make us question whether the states that adopt them are indeed ‘innocent’.

The first half of the book engages with this first limitation, by providing a comprehensive normative analysis of these practices used in response to refugees. It does this first, by invoking the Doctrine of Doing and Allowing Harm to classify the practices as either doing or allowing harm to refugees. Given the widely-accepted robust moral constraint against harming persons, this classification enables us to assess whether states are not merely failing to help refugees, but are in fact harming them and so transgressing this important moral constraint. The analysis finds that border violence, detention, encampment, and containment are indeed instances of doing harm to refugees, and so states that adopt these practices are certainly not innocent bystanders but are in fact actively harming refugees who are asking for our assistance.

The book then assesses whether such harmful practices can be justified by (the philosophical justifications of) a state’s right to control its borders by analysing the ethics of permissible (defensive) harm. We find here that a state and its citizens’ security, political, economic, and cultural interests in controlling borders, as well as their rights of associative ownership and rights of free association, are unable to provide the substantial justification required to justify the unnecessary, grossly disproportionate and extensive harms to many thousands of morally innocent refugees that result from current practices. And so, these practices unjustly harm innocent refugees and are therefore an injustice against them.

The book then analyses how we ought to understand this injustice against refugees. We find that these unjust harms to refugees are not and should not be understood as a structural injustice: an unfortunate unintended outcome resulting from permissible actions of multiple agents. Instead, these harms are in fact a direct injustice against refugees: a harmful outcome directly resulting identifiable and importantly avoidable policies and practices enacted by relatively unconstrained state actors.

The first half of the book then concludes having shown that certain states are not innocent bystanders, but are instead, as I write this, currently unjustly harming innocent refugees who are seeking safety, and as such are committing a grave and direct injustice against them. Through this, we then arrive at an understanding of states’ negative duties to not harm or violate the rights of innocent refugees. These negative duties have been overlooked in the philosophical literature and regrettably in state responses towards refugees, and their recognition and adherence is urgently required.

The second half of the book then engages with the second limitation of the Duty of Rescue Approach. That limitation is that, in holding only that states have an obligation to help refugees if they can do so at little cost, this approach does not provide much clarity on how strong these obligations are or what exactly they entail, or more formally, the strength and specification of states’ positive obligations to refugees. I suggest this limitation stems from the fact that the approach does not sufficiently engage with the situation of contemporary refugees. Focusing closely on this situation reveals that refugees have been subjected to extensive and severe human rights violations both in their states of origin as the causes of their displacement; and also once they are displaced into camps, urban centres and onto perilous journeys. The book suggests that the fact that refugees endure such human rights violations is particularly morally significant in ways that have been overlooked and in ways that have important implications for understanding the strength and specification of positive obligations towards them.

The book then seeks to provide an extensive analysis of how and why the human rights violations that refugees have been subjected to has morally significant implications. The book first, through an analysis of the violations that refugee face, demonstrates that such human rights violations involve distinctive, severe, and additional harms to refugees aside from physical suffering. These harms include severe harms in the violations of refugees’ autonomy, their dignity, and their moral worth as human beings. These harms have been overlooked are not taken into consideration both in the philosophical literature and in state responses to refugees. So identifying these harms shows that refugees are harmed to a greater extent than is commonly understood, and hence their claims to assistance are stronger than commonly understood. As a result, obligations towards refugees are stronger than widely-assumed and must also be specified to address these distinctive harms.

The book then analyses the nature of refugees’ human rights themselves. Drawing on Hannah Arendt’s analysis of refugees as ‘rightless’, we see that for refugees, once they are displaced, their human rights are essentially meaningless: they are continually subjected to abuses in camps, urban areas and on journeys, and their rights are continually violated with impunity and without any protection or recourse for refugees. So for refugees, their human rights essentially mean and do nothing for them.  The book then shows that human rights themselves entail duties to protect and aid the right-holder to secure those rights. And since human rights represent basic moral entitlements that all persons are owed as a matter of justice, these duties to secure rights ought to be seen as urgent duties of justice to secure these basic moral entitlements. And so, the rightlessness of refugee reveals urgent positive duties of justice to secure their human rights against the severe violations they are subjected to.

As a result of the analysis of the second half of the book then we arrive at an understanding of the strength and specification of positive duties towards refugees. These duties are the weighty combination of Strong Humanitarian Duty to alleviate not only physical suffering, but also the additional harms to refugees’ autonomy, dignity and moral status; and an Urgent Duty of Justice to secure refugees’ human rights. I suggest that as a result, these positive duties are stronger than commonly assumed, and sufficiently strong such that states are, in principle at least, obligated to protect and aid refugees unless by doing so they would undermine their capacity to protect and uphold the human rights of their own citizens. And these duties are appropriately specified to address the specific harms and injustices that refugees endure (not only physical harms but also violations of their autonomy, dignity, moral status, and their rightlessness), as they entail providing not just subsistence aid but also conditions for an autonomous and dignified existence, treatment that respects their agency and moral worth as human beings, and securing their human rights.

Taking both halves of the book together, we then arrive at an understanding of both the negative and positive duties that states owe to refugees which represent the components of an ethical response, but which have been overlooked. I suggest that when we apply this new understanding of an ethical response, it rules out certain practices - such as border violence, detention, encampment and containment - that harm and violate the rights of innocent refugees, and/or fail to respond to the harms and injustices that refugees face; and rules in alternative practices - such as expansive multilateral resettlement programmes, significant expansion of regional development funding, and safe and regular routes to safety including humanitarian visas - that respect, secure, and promote the human rights, autonomy, dignity and moral value of refugees. The book then concludes with numerous practical policy proposals that meet these requirements and can be enacted in the here and now. The book therefore shows that an ethical response to refugees is not only urgently required, but is within our reach, and that reaching it is one of the most important moral priorities of our time.

The Ethics of State Responses to Refugees is available here: https://www.routledge.com/The-Ethics-of-State-Responses-to-Refugees/Hillier-Smith/p/book/9781032833675

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Personal website: bradleyhilliersmith.com

Twitter: @bradclokwrok