A theoretical analysis on the moral obligations of states towards refugees

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A theoretical analysis on the moral

obligations of states towards refugees

Corjanne Pellikaan

S4628403

Supervisor: dr. B. R. van Leeuwen

28 June 2020

Word count: 24.158

Radboud University, Nijmegen, The Netherlands Faculty: Nijmegen School of Management

Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Master in Political Science (MSc) Specialization: Political Theory

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Abstract

This thesis is about the moral obligations of states towards refugees and analyses three different theories on immigration ethics by David Miller, Seyla Benhabib and Joseph Carens. The asylum claims of refugees show the inherent tension in liberal democracies between the state’s right to decide on its refugee policies and the claims of refugees based on universal human rights. The three theorists respond differently to this tension. After examining the different theories, this thesis will defend the theory of Benhabib, as she argues in favour of strong moral obligations of states to admit refugees and giving them the opportunity to get full citizenship rights while keeping the self-determination of democracies intact by mediating the claims of refugees into the decision-making procedure on the basis of deliberative democracy. Also, this research will be in favour of Carens’ proposal to turn resettlement into a strict duty of states and to reject the use of exclusionary measures and policies of states to prevent refugees from coming to their states.

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Chapter 1: Introduction

An increased inflow of refugees, resulting in crowded refugee camps in Greece, numerous protests, and negative attitudes towards the influx of refugees, are now more than ever urgent political topics in the European Union. Greece wants to construct a fence in the Mediterranean Sea to prevent refugees from crossing the borders between Turkey and Greece (NRC, 2020). The refugee tent camps are crowded and people are living in degrading conditions (Boffey, 2019; Godin, 2020). Refugees are living in these tent camps for years without a clear

perspective on their future (Palm, 2019). As a result, refugees feel disrespected, get angry and go protesting for not getting the help they need (NOS Nieuws, 2020). While at the same time, there are also sentiments among European Union citizens demanding border restrictions. For example, radical right movements in the European Union see the refugee influx as a threat to their society (Lucassen, 2020; Van der Poll, 2019).

So, on the one hand, there are refugees who are in urgent need and not able to work on creating a decent social life. On the other hand, effective action and commitment towards migration policies among member states of the European Union is lacking (Carrera,

Blockmans, Gros, & Guild, 2016). There seems to be a tension between the urgent needs of refugees, who fear for their lives, and the claims of democratic communities to restrict asylum. In order to correctly respond to this tension from a normative perspective, the

following question needs to be answered: Do states have an unconditional moral obligation to admit refugees or are there conditions that allow states to refuse refugees? It is the aim of this thesis to solve this moral issue. In order to do so, three normative theories regarding refugee ethics will briefly be discussed.

Refugees are people who have fled their country because their life and/or freedom has been threatened. The official legal definition (Article 1 of the Geneva Convention) of a refugee that is accepted by most states, is the definition established at the Geneva Convention of the United Nations in 1951. Someone is qualified as refugees when the following

conditions are met:

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 and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being

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outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. (United Nations Human Rights, 1951).

The main legal obligation states have refugees is the principle of non-refoulement, which is also established at the Geneva Convention in 1951. Non-refoulement prohibits states to send people back to the dangerous place where they came from. The official definition (Article 33 of the Geneva Convention) reads as follows:

No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion (United Nations Human Rights, 1951). The definition of a refugee and the international established obligations of states to admit refugees are the basic starting points of this thesis. It is important to distinguish the concept ‘refugees’ from the concepts ‘migrants’, and ‘asylum-seekers’. This distinction is necessary to understand the different moral obligations of states towards people who want to enter their states. The main difference is based on whether the migration was forced or voluntarily chosen. In contemporary migration studies, the concepts of migrants and refugees are seen as two separate concepts (Long, 2013). Migrants have voluntarily chosen to migrate to another state for several reasons like labour opportunities, better education, or family reunification. As captured in the legal definition by the Geneva Convention in 1951, refugees migrate to another state for reasons of persecution (Long, 2013, 7). People who claim to be refugees are called asylum-seekers. The state that receives the asylum claim starts an asylum procedure to determine whether the asylum-seeker is qualified as a refugee or as a migrant (Long, 2013). Hence, refugees always start their journey as asylum-seekers, but will eventually receive refugee status. Some migrants start their journey as asylum-seekers too, but do not get qualified as refugees and are called migrants instead. However, refugees can also have the same reasons to migrate as migrants, beside the reason of persecution. This means that the separation of these concepts is not neutral and could be debatable. In this thesis I will however not deeply discuss the categorization of refugees and migrants because that is beyond the scope of this thesis. The focus will be on refugees.

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1.1. Moral issue

As stated above, this thesis will focus on three influential normative theories regarding a state’s obligations to refugees. All three theorists struggle to answer the same question: How should the sovereignty of a state stand in relation to its moral obligations to refugees?

Although they are dealing with the same problem, all three theorists take on a different moral position. While David Miller accepts the right of states to discharge from their responsibility to admit refugees if they have reached their fair share of refugee admittance. Joseph Carens argues the opposite, as he defends an open border perspective. Somewhere in between these two perspectives, stands Seyla Benhabib, who argues from a deliberative perspective that the moral claims of refugees and asylum-seekers must be represented in the deliberation on refugee and asylum policies. In the next section, the different theories will be briefly discussed to postulate the central issue of the thesis.

1.1.1 David Miller: weak cosmopolitanism

David Miller (2016) admits that the claims of refugees are strong, and that states are morally obligated to admit refugees. He justifies this by resorting to the weak cosmopolitan principle of Kant, which says that states have the moral obligation to help and protect the people reaching their territory and whose human rights are not protected. However, Miller also argues that when a state reached their fair share of refugee admittance, they have the right to discharge themselves from these obligations and take measures to limit the arrival of refugees. He substantiates this conviction by defending the right of states to close their borders for potential immigrants. His argumentation bases on the territorial rights and the

self-determinations of states. Territorial rights refer to the rights of states to control their territory and their borders. Self determination encompasses an essential interest of political

communities, as it enables the community to create their own norms, laws, and policies. Because migrants and refugees come with other cultural and religious demands, their arrival will ultimately affect the possibly choices and options of the community. To preserve these options, the community itself must have the right to refuse people admittance to their state.

1.1.2 Seyla Benhabib: democratic iterations

Seyla Benhabib (2004) takes on another position in this debate. She recognizes that states have boundaries and that boundaries can lead to the exclusion of asylum-seekers and

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asylum-seekers is morally unjust. But at the same time, Benhabib does not want to neglect or ignore the claims of the democratic community to decide on the refusal or entry of refugees. According to Benhabib, states have two major moral obligations towards refugees. First, she agrees with Kant’s moral duty to treat refugees with hospitality and not as criminals.

Secondly, she agrees with Hannah Arendt, who says that everyone has the moral right to political membership because it is basic human right.

Although democratic states have these moral obligations, the demands of the democratic community can still conflict with the compliance with these moral

obligations. Consequently, Benhabib posits that the universal human rights of refugees and asylum-seekers must be mediated through deliberative processes within the democratic communities. In a deliberative democracy, the members of the political community deliberate on policies and try to reach an agreement that is acceptable to everyone affected by the policies. The universal human rights of refugees need to be protected through democratic iterations. This means that the political community must deliberate on the universal moral claims of refugees and asylum-seekers to reassess and reinterpret the existing refugee and asylum policies.

1.1.3 Joseph Carens: open borders

Joseph Carens (2013) also positions himself in the debate on the moral obligations of states towards refugees. Like the other two theorists, he recognizes the tension between the universal human rights of refugees and the claims of democratic communities to control borders. Carens’ theory is two-folded. In the first half of his theory, he accepts the right of democratic states to control their borders and restrict immigration. However, Carens makes a strong claim that states are morally obligated to admit refugees regardless of the claims of the democratic community. Also, refugees should be granted citizenship rights when repatriation chances are low, and/or when they have been living in the host state for a long time.

The second half of Carens’ theory presents a defence of open borders. He posits that the claims of migrants should carry more weight than the claims of democratic communities. He challenges the assumption that states have the right to control their borders and argues that the restrictions on immigration are keeping the economic inequalities intact. Open borders are required to reduce the economic inequalities between people from different states. To enhance the equal opportunities between people, the inequalities will decrease. In this defence, he

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further argues that all migrants must have the right to cross borders freely as it is a human right to do so.

1.1.4 Research question

The three theorists accept that the moral claims of refugees are valid and that states have the obligation to admit refugees and give them citizen rights over time. However, they disagree on the extent of control states have over their borders and of their responsibility for refugees. Miller argues that states may discharge from their responsibility to refugees if they admitted their fair share. While Benhabib argues that the moral claims of refugees to admittance are strong and must be accepted by the political community through deliberation on refugee admission and policy, Carens argues that states always have the obligation to admit refugees regardless of the claims of democratic communities. He goes even further by arguing that state borders should be generally open, as every exclusion is morally unjust. The three theorists have dealt differently with the tension between the universal human rights of refugees and the decisions of democratic communities. Hence, this thesis will describe and analyse the way in which each of these theorists dealt with this tension. It will also take a position in this debate and defend which moral obligations states have towards refugees in relation to the right of democratic states to control their borders.

The focus of this thesis can be summarized with the following research question: What

should the moral obligations of states towards refugees be, given the tension between universal human rights of refugees and the claims of democratic communities, from a normative assessment of the theories of David Miller, Seyla Benhabib, and Joseph Carens?

1.2 Societal and scientific relevance

This research is relevant and substantial to the discussion on the moral obligations of refugees at both a societal and scientific level. On a scientific level, this research contributes to the philosophical debate on the moral claims of refugees and whether states are obligated to admit refugees. The three chosen theories differ on the answer as to what extent states have moral obligations towards refugees. This research will provide a broad overview of three influential theories within the debate on the rights of refugees. Moreover, this research will take a moral standpoint within the debate on the rights of refugees and the moral responsibilities of states towards refugees. In contemporary research, much has already been written on the rights of refugees and immigration ethics. Although, in contrast to other theories on immigration ethics, this research focuses on one particular group, namely the refugees. The focus on

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refugees enables this research to set this group apart from the possible effects of the claims of other migrants. However, this could be a disadvantage to the political feasibility of the moral obligations of states towards refugees, since the claims of migrants and effects of other immigration policies are not taken into account. But, by focusing on refugees, their moral rights can be defended more ardently.

On a societal level, this research can contribute to the public and political debate on the admission and rights of refugees. First, this research confronts the current international, transnational, and national politics with the moral obligations towards refugees. Most states agree on the principles set out by the Geneva Convention of 1951, but this research will show whether these principles suggest enough moral obligations. Besides, the European Union has to deal with a high influx of refugees crossing the Mediterranean Sea (Carrera, Blockmans, Gros, & Guild, 2016). This confronts the European Union with difficult political choices regarding the treatment of refugees and is an example of the tension between universal human rights and the claims of democratic communities. This research will set out the moral criteria to which the refugee policies of the EU but also of national states can be evaluated.

1.3 Justification literature

This thesis focuses on three influential but also contradicting philosophical theories. To critically assess the different theoretical claims, three main texts of relevant philosophers will be analysed. In this thesis, the choice of the three theories is based on a distinction made by Serena Parekh (2017). Parekh observes that there are different theories on refugee ethics in contemporary political philosophy. She makes a distinction between more minimal

perspectives and more demanding perspectives on the moral obligations of states towards refugees. Miller is classified among the minimal perspectives, together with Wellman and Walzer. Benhabib, Carens, and Gibney are classified among the more demanding perspectives (Parekh, 2017). This research follows this classification, but will only focus on the theories of Miller, Benhabib, and Carens. The theories of Walzer, Wellman, and Gibney will not be analysed, as that would too greatly enlarge the scope for a thesis. Although Walzer was the first researcher who wrote on the ethics of refugees in the contemporary debate, his work

Spheres of Justice examines the topic of refugee ethics only briefly (Parekh, 2017). Miller’s

theory is better choice, because his theory is in line with the theory of Walzer and is more focused on the ethics of immigration and refugees. The order in which the different theories are analysed is as follows: first the theory of Miller, then of Benhabib, and lastly of Carens.

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This order reflects the distinction between the theories regarding the way the authors dealt with the discussed tension of this thesis.

Another reason to choose these three theories is that they are all based on different philosophical viewpoints. Miller takes on a nationalist, communitarian approach by focusing on the rights of a political community and the threat of migrants and refugees to political communities. Benhabib on the other hand, argues from a deliberative democracy perspective and asks the question of how refugees and asylum-seekers could also be included in the deliberation even if they cannot participate in it. Carens takes on yet another approach. By problematizing the tension between the liberal autonomy of democratic states and the

universal human rights of all human beings, he presents his claims from a liberal perspective. These three theories are extensively clarified by the theorists in their own books. David Miller (2016) wrote the book Strangers in Our Midst: The Political Philosophy of Immigration, in which he also discusses the moral rights of refugees and the right of political communities to control their borders. The second reading is the book of Seyla Benhabib (2004): The Right of

Others: Aliens, Residents, and Citizens. Her book is structured as one great argument and is

separated by several steps. The third reading is the book of Joseph Carens (2013): The Ethics

of Immigration, that presents his take on the moral rights of refugees and his defence for open

borders.

1.4 Structure

The goal of this research is to argue for a moral standard regarding the obligations of states towards refugees. The structure of the thesis will be as follows. First, the different theories of David Miller, Seyla Benhabib and Joseph Carens will be analysed. These will be outlined in three different chapters. After these more descriptive chapters, the fifth chapter comprises an analysis of the different theories in which the different aspects of the theories are compared and critically evaluated by the criteria of morality and political feasibility. After having critically assessed the moral and practical problems of the different theories, the essentially moral conditions will be determined. The thesis will end with a conclusionary chapter in which the research will be summarized and an answer to the research question will be formulated.

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Chapter 2: No right to enter

This chapter focuses on the theory of David Miller, as is presented in his book Strangers in

our midst. The political philosophy of immigration (2016). Miller argues that states have the

right to restrict immigration, and even to close borders for community-based reasons, but acknowledges the fact that refugees also have a strong claim to be admitted, since they fear threats to their lives and freedom. The central question of this chapter is as follows:

According to David Miller, what are the moral obligations that states have towards refugees? This chapter outlines the argument that states have the right to close borders to migrants, but have a moral duty to admit refugees. First, Miller’s definition of a refugee and his argument for the justification of states closing their borders to migrants will be discussed, together with his view on territorial rights and the self-determination interest of a political community. The next part of his argument elaborates on the obligations of a state to refugees. These obligations create some exceptions regarding the right to close borders. At the end of this chapter, I will briefly reflect on Miller’s theory from a moral viewpoint.

2.1 Definition of a refugee

As mentioned in the introduction of the thesis, the most often used definition of a refugee is the definition from the Geneva Convention in 1951. The defining part of this definition is “well-founded fear of being persecuted” (United Nations Human Rights, 1951). To be qualified as a refugee, there must thus be a well-grounded fear of persecution. However, the meaning of persecution is not evident, as different explanations of the term persecution exist. Miller gives three possible definitions of potential refugees, that is, people whose human rights are unprotected in the state where they originally came from (2016). The first definition is equal to the definition of the Geneva Convention: A person only qualifies as a refugee when there is a justified fear of persecution on grounds of race, religion, nationality, political opinion, or membership to an organization. The second definition is an extension to the first one, as it says that someone also qualifies as a refugee when their human rights are in danger as a result of natural calamities or private acts of violence, and when it is clear that their state is unable to protect its people (ibid, 82). The third definition regards refugees as people whose lives and/or freedom are under threat, but there are possible solutions to help these people with other resources like humanitarian intervention, investments, or the creation of safe

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havens (ibid., 82). According to Miller, the people who belong to the last category should not qualify as refugees. These people could be helped through other means, and the migration is not necessary to protect their human rights. Hence, only the first two definitions are

reasonable qualifications to define refugees, since migration is unavoidable to protect the basic human rights of these people (ibid., 83).

2.2 Territorial rights

Often, theorists use the argument that states have the right to restrict and control immigration on the grounds of state sovereignty. Sovereignty, here, means that states have the right to legitimately control their territory whereby border control is seen as one aspect of state sovereignty (Miller, 2016, 58). For Miller, this argument of state sovereignty is not enough to justify the right to control and even close borders. First, arguing that state sovereignty allows states to close their borders implies the assumption that the state system is the best form of government without substantiating this assumption. Any other possible debate on alternative power divisions between transnational or regional institutions is automatically subordinated. Secondly, the sovereignty claim that gives states authority over their citizens is automatically extended to people who are not yet member of the community in question (idem., 58).

According to Miller, sovereignty claims are therefore not sufficient claims to argue that a state has the right to close its borders (ibid., 58).

The sovereignty of a state cannot fully justify the right to close borders, and therefore, Miller uses another approach: the use of territorial rights. Territorial rights are rights to have legitimate jurisdiction over a territory. They give a clearer justification of the right of states to control their territories. When a state has legitimate jurisdiction over a territory, it has the right to control the movement of people going in and out of that territory. This results in the right to exclude people if the state wants to (Miller, 2016, 58). Jurisdiction means that a state possesses and exercises the right to enforce laws upon everyone who is present on the territory (ibid., 59). This means that only when a state has legitimate jurisdiction over its territory, it has the right to control immigration and control its borders.

To have legitimate jurisdiction over a territory, three conditions must be met (ibid., 60). The first condition is that the state must be able to maintain the social order and protect the human rights of its inhabitants. The second condition is that the state must represent these inhabitants. The other way around, the inhabitants should feel

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third condition to have legitimate jurisdiction is that the inhabitant should have the right to occupy the territory and to own a part of that territory (ibid., 60).

When a state has legitimate jurisdiction over a certain territory, it acquires two other rights. First, the state has the right to control and use the resources present on its territory. Secondly, the state has the right to control the movement of people and goods across the borders of its territory. The right of jurisdiction, together with these two additional rights, entail the territorial rights of a state (ibid., 61). Miller combines these rights, although the right to jurisdiction cannot be automatically combined with the right to control the borders of the territory (ibid., 61). One could argue that the right to border control is necessary to

maintain the stability of the legal system of societies. However, this is only a weak limitation, as the claim that the movements of people across borders could negatively affect the stability of the legal system is not evident. So, preservation of the legal system is not strong enough in arguing that a state must have the right to close its borders besides the territorial jurisdictions (Miller, 2016, 61).

A stronger argument is that states have the responsibility to maintain the social order and create housing, employment, education, security, and health care. The state has the obligation to protect the human rights of all people that are present on its territory, which also includes immigrants. Consequently, the state needs the right to control their borders to still be able to ensure the opportunities for housing, employment, education, health care, and social security for every inhabitant. The preservation of the social order is however still not strong enough as an argument to justify the right to control borders, because it is not evident that immigrants will have such a negative effect on the stability and social order of the state (Miller, 2016, 62).

2.3 Self-determination

The territorial rights are clearly not sufficient to argue that the state has the right to close its borders. Miller argues that territorial rights in combination with the self-determination of a state however, can provide sufficient ground for a state to close its borders (Miller, 2016, 62). With self-determination, Miller refers to the right of the public of a democratic state to decide upon their own policy choices, bounded by the protection of the human rights of the

inhabitants on the state’s territory (ibid., 62). The self-determining community should have the opportunity to control its borders to maintain the possible policy choices. However, a state does not have a right to self-determination. Self-determination is an interest of the political

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community itself, which means that people have an interest in belonging to a self-governing community. To be part of a self-determining community is dependent on several

circumstances like resources and identification. Therefore, Miller argues that

self-determination is an interest and not a right (ibid., 71). This poses the following question: To what extent do the interests of the political community overrule the interests of the immigrant to enter the state?

2.3.1 Effects on the “self”

The existing community has all kinds of interests and preferences towards the policy choices of the government. The new immigrants also have interests and preferences, but those will be different from the interests and preferences of the already existing members of the

community, since immigrants come from other states and bring different cultural and religious backgrounds, and moral values and traditions with them. Consequently, these newly arrived people will have other interests and preferences, which will change the policy choices of the community. So, Miller argues that immigrants will have an effect on the policy choices, as they could have different interests and preferences than the already existing community. Also, the number of immigrants has an effect on the range of policy choices of the political

community. That being the case, a self-determining political community must have the right to control its borders to keep a significant range of policy choices, and at the same time, do justice to the human rights of the admitted immigrants (ibid., 62).

An objection to that claim is that an existing self-determining group is also subject to change (ibid., 63). If a state closes its borders, the ‘self’ of a

community will change over time, since people’s preferences and the composition of a community naturally changes over time. While Miller admits that communities change on their own, he argues that the change within communities is not the same as the change by the arrival of immigrants, because the change of preferences and interests within the community is a gradual change. The already existing cultural and religious backgrounds can be integrated into the new generation of the community through the education and socialization of children (ibid., 63). Despite the possible assimilation to the norms and culture of the existing

community, immigrants will however bring their own culture with them, and will still cling to their traditions, festivals, language and so on (ibid., 63). In society, a cultural mix with different preferences is not necessarily wrong per se, since these groups can add something extra to the existing culture, but the scope of policy choices will become more limited when

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new immigrants become members of the citizen body, as they will have other policy

preferences and will make use of the resources and the welfare system of the state (ibid., 64). Another argument in favour of the importance of the power to be a self-determining community, is that cultural divisions among people may have negative effects on the level of interpersonal trust and trust in democratic institutions (Miller, 2016, 64). When these

institutions operate in a deliberative manner, the participants aim to reach a consensus on the policy choices. For a well-functioning deliberation, the different parties have to be willing to make some concessions to come to an agreement and therefore trust that the other party is willing to make concessions if needed (ibid., 64). If trust is lacking, the bargaining of the representatives of different divisions in society will become self-interested, and the outcome will reflect the distribution of power instead of common consensus.. The relation between immigration and trust is dependent on two other factors: the degree of segregation and the presence of a national identity (ibid., 65). To maintain a decent level of interpersonal trust and trust in political institutions, the state could encourage integration and the option of taking on a shared identity.

2.3.2 Three challenges

Miller (2016) considers three arguments that pose a challenge to the right of states to close their borders, after which he objects these challenges and defends the right to close borders. First, current liberal societies are not culturally homogenous, but are highly culturally diverse. Subsequently, cultural diversity challenges the assumption that the community is a culturally homogenous body when the borders are closed and there is no immigration (Miller, 2016, 66). Furthermore, one could also argue that cultural diversity is not necessarily a problem for a society. When everyone accepts the democratic principles and accepts the democratically chosen decisions, cultural divisions among people do not cause problems (ibid., 67). To respond to this challenge, David Miller looks at the meaning of culture. One could make the distinction between private culture and public culture. Private culture refers to the beliefs, traditions, and customs of a particular group of people within a society. Public culture refers to an overlapping selection of beliefs and values that a society expresses and embodies. In that sense, the notion of public culture is much broader and general than the notion of private culture. There must be a degree of convergence of the public culture to make societies function well and peacefully (ibid., 67). If certain groups become isolated from the larger society, they may not be participating in the public culture, and the interpersonal trust may

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decline. The number of migrants will affect the public culture. The larger the group, the higher the chance that the immigrants will build their own group and thereby undermine the social conditions of stability and trust (ibid., 67).

The second argument that challenges the right to close borders says that the claims of some particular groups of people who want to enter a state are stronger than the

self-determination interest of the community. The value of self-self-determination must be important enough to overrule the claims of immigrants. Miller objects this argument by arguing that self-determination is an essential value for a community. Self-determination assumes that there is a ‘self’ which has a collective identity, aims, and values, which are recognized by the members of the group (Miller, 2016, 69). Self-determination means that the community is able to organize itself in light of these aims and values, which gives the members the impression that they are in control of preserving the ‘self’. Therefore, self-determination is valuable to a community. However, critics might state that this line of argumentation can only be applied on a lower regional or local level, and not on a state level (ibid., 70). According to Miller, that would be an underestimation of what a democracy can become. When a

democracy pursues deliberative forms of governing, the deliberation needs some common ground, and is dependent on the public culture (ibid., 70).

Thus, self-determination is, though a valuable aspect of a community, not a right, but an interest. Why would this interest overrule the interest of an immigrant? Miller (2016, 71) argues that when we assume that we owe special obligations to our fellow citizens, the claims of immigrants weigh less. Miller (2016, 71) however defends the weak cosmopolitan

principle, which says that states cannot ignore the interests of the potential immigrants. This does not mean that the state has obligations towards these immigrants. Only when someone is refused entry, states are obligated to explain why. Whether the interests of a community weigh heavier than the interests of potential claimants is the decision of the political community (ibid.).

The third argument that poses a challenge to the right to close borders is that the exclusion of potential immigrants is a form of coercion. Border control is a coercive act, and to act coercively, the act must be justified by a democratic body that includes insiders and outsiders (ibid., 72). According to Miller (2016, 73), there are two underlying assumptions in this argument. First, it assumes that coercion needs to be justified. To respond to this, Miller argues that the state is obligated to give an excluded outsider an explanation for their refusal. This could be seen as a justification of the border control. Secondly, the argument that exclusion is a form of coercion assumes that border control is always a coercive act (ibid.,

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73). However, border control is not necessarily a coercive act. Rather, it is a form of prevention. Coercion is different from prevention: While coercion implies taking away all possible options, prevention takes only one option away and leaves plenty of other options open (ibid., 74). Border control is thus not a form of coercion, but of prevention. If a state refuses to grant entry, it does not force immigrants to a place somewhere in particular. They are still left with multiple other options (ibid., 74).

2.4 Obligations towards refugees

As mentioned before, the weak cosmopolitan premise obligates states to treat people with equal concern, which means that, when a state decides on its acts, the interests of the people who are involved should not be ignored. It is a negative duty not to harm the human rights of others (Miller, 2016, 34). On the basis of this premise, Miller argues that a state must take the interests of potential immigrants into account and that a state has the right to refuse entry. The only obligation of the state is to give an explanation for the refusal. Otherwise, the refusal would be disrespectful to the potential immigrant (Miller, 2016, 37). Regarding refugees, Miller accepts that they have a different and stronger claim to admittance than migrants (ibid., 77). Miller does not state that the refugee always has an immediate right to be admitted to the first state they approach, but the state should not send refugees back to the place where their human rights are threatened (ibid., 78). Miller calls this the duty of care, which is legally captured in the principle of non-refoulement.

As already explained at the beginning of the chapter, migrants are qualified as refugees when their human rights are threatened due to state

persecution, state incapacity, or natural disasters, and their only option is to cross borders and seek shelter somewhere different from their home country (Miller, 2016, 83). As a

consequence, states must admit refugees and provide basic human rights, amongst which are food, security, medical care, and housing (ibid., 86). On a short term, it is possible and acceptable that refugees get access to these basic human rights. Over time, people should however be able to live a decent life with opportunities of employment, education, and recreation (ibid., 86). When the chance of repatriation for certain refugees is low and they reside in the host-state for a long period, they should be able to acquire citizenship rights. Repatriation means that refugees are sent back to the state where they came from because the situation is changed and the threat for persecution diminished. However, Miller does not explain in detail what the specific rights should be and how long a refugee must reside. In

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conclusion, the moral obligations of states towards refugees include the admittance of refugees, the provision in basic supplies and the grant of citizenship rights when refugees have lived for a long time in the host state and cannot go back to the state where they came from.

2.5 International distribution of refugees

The responsibility to admit refugees is shared among every state that is capable to help (Miller, 2016, 83). If this is a collective responsibility, how should it be distributed among states? Currently, the distribution is simply dependent on the first state refugees enter and seek asylum in, or which state the refugees travel to for claiming admittance. This is an arbitrary way of distributing the responsibility of the admittance of refugees because it leads to possible burdens for the neighbouring states of failing states. It also leads to high numbers of asylum-seekers in states with more economic opportunities (ibid., 83). The distribution is dependent on the choice of the refugees themselves and as a result, the distribution will not be fairly shared among states. Thus, Miller considers three possible ways of distributing refugees among states (Miller, 2016, 87).

The first alternative is an international system where refugees are fairly distributed among states, which is managed by an international agency. There are two elements that makes this alternative difficult. First, it will be difficult to establish an international agreement concerning the organisation of the international agency that will decide on a fair distribution. After all, states must be willing to accept that they do not have a total control over their borders anymore. In practice, this alternative will lead to neighbouring states admitting a vast number of refugees and other states contributing with financial payments to neighbouring states (ibid., 87). Moreover, the international system needs enough states that are willing to share the responsibility. The second difficulty is the development of the set of criteria which determine what the fair share of every state entails (ibid., 87). Should the determination be based on population size, territory size, or on other characteristics? The decision on the fair share of every state is further complicated by the differences between short-term and long-term refugees. Long-term refugees ask more of states in terms of integration costs, housing, education, employment, and citizenship (ibid., 87). There is little chance that states will collectively agree on a set of criteria that determines the number of refugees that every state is able to admit (ibid., 88).

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alternative imposes on states the duty of care, or in other words, the obligation to grant first admittance to refugees. When a state does not want to admit the number of refugees equal to its fair share, the state should make financial transfers to third states that do take these

refugees in (Miller, 2016, 88). The European Union for example made agreements with states in the Middle East to transfer financial payments and logistic aid in exchange for a reduction of the number of migrants and refugees entering the EU (Rayes, 2020). The problem with this alternative, again, is the difficulty to come to an agreement between states. Furthermore, this alternative accepts that states may replace refugees for reasons of preference, and not for reasons of insufficient resources to provide in the basic needs of refugees (Miller, 2016, 88). However, according to Miller, the human dignity is not harmed as long as the sending state is able to ensure that the human rights of the refugees are protected in the partner state the refugees are transferring to (ibid., 89). When states agree on the distribution of refugees to third countries and the linked financial payments, the selection of refugees could also base on certain characteristics of the refugees.

The question is whether the selection of refugees based on certain characteristics is acceptable. Possible characteristics are cultural similarities between refugees and the existing population, potential opportunities that refugees bring with them, the duration of their stay and the possible causality between the reasons of refugees to flight and the actions of the receiving states. Selection on the basis of causality, duration, and potential opportunities is acceptable as long as the human rights are protected (ibid., 91). Causality reasons, like an intervention of one state into another, seems to be a reasonable argument of a state to accept refugees. It is acceptable to take into account the duration of the stay of refugees. The interests of refugees themselves can also be taken into account, but states are not necessarily obligated to do that. The selection on the basis of potential opportunities, where states select refugees on the basis of their potential contribution to the state, is also acceptable. Although, it is unacceptable when the assessment and asylum procedure of the asylum claimant is dependent upon the potential contribution. The assessment of the asylum claim, and the protection of human rights must be equal for all refugees, despite resettlement (ibid., 91). Selection on the basis of cultural similarities, where a state prefers refugees on grounds of similar cultural values and norms, is indefensible. It seems reasonable when one state takes in refugees with the same cultural or religious background, as it will be less hard for refugees to adapt to the state’s culture, norms, values, and history. Yet, Miller still argues that selection on the basis of cultural similarities is unacceptable, because the similarities between cultures are not always clear (Miller, 2016, 92).

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Since international refugee schemes are not in place, the third way of distributing refugees among states is almost equal to the current situation, where the distribution depends on the refugees’ choice of the country where they ask for admission. Consequently, states take measures to prevent refugees from entering a state’s territory. These are called exclusionary measures, and defenders of these measures would say that these measures are unavoidable when other states do not accept their responsibility to admit their fair share of refugees (Miller, 2016, 92). However, these measures could be seen as an escape from their own responsibility to the principle of non-refoulement. According to Miller, states are permitted to ensure that the number of refugees does not pass their fair share of refugees (ibid., 92).

However, a state admitting desirable refugees through resettlement programmes, but at the same time refusing refugees or using measures to limit access to their territory, is

unacceptable (ibid., 92,93). In conclusion, states have the right to decide that they have reached their quota of admitting refugees. This decision is in the hands of the political communities themselves (ibid., 92).

2.6 Reflection

Miller argues that states have the moral obligation to admit refugees. Yet, states do have the right to refuse refugees when they have done their fair share. The determinant of what a fair share means, is decided by the political community itself. The exclusion of refugees is then justified by the democratic decision of the community. Though, It can be argued that the legitimacy of the decision of a democratic community does not automatically mean that the decision is just.

Miller further argues that the responsibility to take refugees in is shared among all states. The states could make an agreement in distributing refugees more fairly among states, because the current way of distribution happens arbitrarily. The alternative is that states decide together what the fair share of refugees for every state means. The potential problem of this system is that every state can decide that it has done its fair share in admitting refugees, and there are still refugees waiting at the borders of states to be let in. States have the moral right to refuse refugees when they decide that they have done their fair share. So, in that scenario, the refugees at the borders have no place to go. Miller does not give a solution to this potential problem (Miller, 2016, 93).

Finally, Miller argues that refugees should be granted citizenship when they reside for a long time in the host-state. However, he does not specify what the limit of this period is and

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also not what the possible extension of their rights would look like. Is it acceptable that people reside in refugee camps for longer than six months, for example? I agree with Miller that refugees should be granted more rights over time, but it remains vague as to what this means concretely. An extensive analysis of the different theories discussed in this thesis will take place in chapter five.

2.7 Conclusion

David Miller (2016) defends the right of a state to control its borders and refuse immigrants entry, since the state has legitimate territorial rights and a valuable interest in

self-determination. The political community should decide on which grounds immigrants could be granted entry, temporary residence, or citizenship. Self-determination enables internal

stability, interpersonal trust, and trust in political institutions, which are required to sustain the deliberative forms of democracy. Self-determination is an interest and not a right of a political community. Therefore, the state has the obligation to always consider the interests of potential immigrants but the claims of the community itself can weigh heavier than the claims of potential immigrants.

The strong claims of refugees whose lives are threatened, overrule the claims of the political community. States have a collective responsibility to grant first admittance when refugees seek asylum on their territory. Furthermore, states have the responsibility to secure the human rights of the refugees on their territory. However, the current distribution of refugees among states is arbitrary, as the distribution depends on the refugees’ choice of the country where they ask for admission. Miller considers three different ways of distributing refugees. The first way is the establishment of an international system that determines a fair distribution of refugees. The second alternative is also based on the state’s fair share of refugees, but allows states to make financial payments to third states when they do not want to admit refugees. However, these two alternatives are difficult to put into practice, because it is difficult to find an agreement that works for every state. The third way of distributing

refugees is equal to the current situation and is a result of the absence of an international refugee system which would distribute refugees more fairly. Despite the obligation of states to admit refugees, it could be the case that every state has done its fair share in admitting

refugees and some refugees cannot be rescued (Miller, 2016, 93). The next chapter elaborates on the theory of Seyla Benhabib, who defends the moral obligations of states towards

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Chapter 3: Cosmopolitan Federalism

The previous chapter described the theory of David Miller and how he argues that states have a moral right to close their borders. Besides the right to close borders, states also have

obligations towards refugees: When refugees reach the territory of a state and ask for asylum, the state is obligated to grant admission. This chapter examines the obligations of a state towards refugees as described in the theory of Seyla Benhabib, who defends a cosmopolitan federalism perspective in her book The rights of Others: Aliens, Residents and Citizens (2004). Benhabib steps away from Miller’s communitarian position. Instead, she argues in favour of the deliberation on the integration of universal human rights within sovereign and self-determining democratic states.

Benhabib acknowledges the paradox of democratic legitimacy. The paradox of legitimacy is the tension between the will-formation by the members of a democracy and the people who cannot participate in the will-formation, but are affected by the decision. The legitimacy of a democracy grounds on the principle that every citizen has universal human rights, including the right to establish self-governance. The protection of refugees’ and asylum-seekers’ human rights cannot be guaranteed when democracies have the right to decide their own refugee and immigration policies. As a result, the decisions of the

democracy could conflict with the democracy’s compliance with the universal human rights. Benhabib starts with the analysis of Kant’s right to hospitality. Then, she complements Kant’s right to hospitality with the right to membership, which she derives from the theory of

Hannah Arendt. The paradox of democratic legitimacy is unsolvable, but Benhabib views it as fluid and mediatable. Consequently, she establishes principles and practices of just political membership that are mediated through deliberation. This would create a legitimate and just mediation of the moral universal human rights and the self-determining power of a

democracy. The focus of this chapter is on the consequences of Benhabib’s theory of the obligations of states towards refugees. Therefore, the central question of this chapter is: According to Seyla Benhabib, what are the moral obligations that states have towards refugees?

The structure of this chapter is as follows. First, the cosmopolitan right to hospitality and the right to membership will be explained in two separate paragraphs. These two

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need to be secured. Secondly the paradox of democratic legitimacy will be described. Here it will become clear that the universal human rights of refugees, asylum-seekers and immigrants are not always guaranteed, and the admittance is often based on the benevolence of states. Thirdly, Benhabib shows that the traditional state’s system, also known as the Westphalian system, is outdated. Democratic sovereignty should no longer be based on this old system. Rather, it must be based on the members of a democracy that determine the laws, principles, and norms. Furthermore, Benhabib states that the established cosmopolitan rights should be defended through deliberative democracy. Lastly, Benhabib establishes a procedure within deliberative democracy that mediates the universal human rights through democratic iterations. Democratic iterations are public debates or deliberations where the universal human rights of others can be discussed, reformulated, and tested. In the last section of this chapter, I will briefly reflect on Benhabib’s theory.

3.1 The right to hospitality

Benhabib grounds her argument on Kant’s moral right to world citizenship. According to Kant, world citizenship is limited to the right to hospitality. Hospitality means that an immigrant is not treated as a criminal when he enters the territory of a state and is not perceived of as a danger to the already existing citizens (Benhabib, 2004, 27). However, this right only grants the right of temporary residence. An immigrant cannot claim permanent citizenship, unless the refusal of permanent citizenship would put the lives of the immigrant under threat (ibid., 28). Benhabib argues from this Kantian perspective that people have a moral right to temporarily reside in another state and that they will not be treated as criminals but be received with hospitality.

In the case of refugees, the cosmopolitan right consists of three moral obligations to states. States have the moral obligation to admit first entry to refugees. After the admittance, the state can decide whether they grant temporary or permanent citizenship (ibid., 35).

Secondly, when it is apparent that the lives of refugees would be threatened if they went back to the state where they came from, the hosting state has the moral obligation to not send these refugees back. This can also be found in the principle of non-refoulement, which is part of the 1951 Refugee Convention, an international treaty which is signed by most states (Benhabib, 2004, 35). Despite the signature of many states, this principle does not ensure that the rights of refugees are protected everywhere. States can interpret the Geneva Convention on refugee rights in their own terms (ibid., 36). Thirdly, states have the moral obligation to treat

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immigrants and refugees with hospitality, so they will not be perceived of as criminals (ibid., 27).

Benhabib favours the right to hospitality, but also criticizes Kant’s perspective on world citizenship because it does not give people the moral right to permanent citizenship (ibid., 42). This is problematic for people like refugees, asylum-seekers, and stateless people, because they cannot claim this right to membership. Furthermore, Kant did not specify whether the moral right to hospitality is juridical enforceable on states (ibid., 36). The compliance of states cannot be enforced by an international regime or world government. Despite the current multiple international and regional treaties, states still try to bypass their moral obligations to refugees, and the sovereignty of states trumps the universal moral human rights to outsiders.

3.2 The right to membership

Contrary to Kant’s argument, Benhabib wants to extent the right to temporarily stay in a state with the right to political membership. She defends this argument with the strong moral claim of Hannah Arendt that everyone must be given the right to have rights. Amongst other things, Arendt argues for the moral universal right to membership (Benhabib, 2004, 51, 55). Arendt’s views on the subject rose from her observations of the enormous influx of refugees and stateless people after World War II, and these people had little to no rights at all. They had no place in the legal system and the administration systems could not handle their influx (ibid., 54). Arendt observed that when people lose their political membership, they also lose their right to other human rights. The right to have rights can only be established in political communities (ibid., 59). Refugees and stateless people cannot claim the same rights as the members of a community because they are lacking political membership (ibid., 64). The requirement to have rights is political membership. Only when someone is a member of a legal system, are they able to claim rights (ibid., 55). Consequently, every human being must have the right to political membership. Arendt wanted to protect the rights of these people by making membership a moral claim.

Benhabib extents the right to hospitality with a moral claim to the right to membership. Benhabib defines political membership as the principles and practices for including immigrants into existing political communities (Benhabib, 2004, 1). According to Kant, states do not have the moral obligation to grant permanent citizenship to people.

Benhabib does not agree, and like Hannah Arendt argues that states have the moral obligation to grant political membership (ibid., 66). The right to temporary political membership is a

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human right, but the conditions under which someone receives long term membership rights are still in the hands of the sovereign state to determine. The specific time and conditions need to be decided by the democratic community, but the criteria need to be morally permissible. Obviously, discriminatory criteria are unjust (ibid., 43). However, both Kant and Arendt did not know how to ensure that states comply with these universal rights. Kant and Arendt did not want a world government, because of the likelihood of totalitarianism and despotism (ibid., 65). Without a formal juridical obligation, states have to comply with the universal rights voluntarily (ibid., 68, 69).

3.3 The paradox of democratic legitimacy

The right to hospitality and the right to membership are moral rights, but they are not legally enforceable. Kant and Arendt show that the sovereignty of a state can still conflict with universal moral human rights. This affects especially those people who fall outside the political community. Benhabib (2004) develops her theory on just membership and argues that there are ways for a democratic community to establish just immigration and refugee policies that take the universal moral human rights of people into account. First, Benhabib describes the tension between the democratic will-formation and the universal human rights of refugees, asylum-seekers, and minorities. This tension is inherent to every liberal

democratic state. She called this the paradox of democratic legitimacy and states that it consists of two aspects.

First, the legitimacy of a democracy can be conflicting when states acknowledge its citizens as owners of universal human rights while at the same time claim their autonomy to be self-governing (Benhabib, 2004, 44). The democratic will of the majority can be

conflictual with the rights of minorities within or outside the political community. Secondly, democracies need borders to create their identity. Consequently, there is always a group that does not meet the requirements of the community. Since the decisions on borders are decided by the democratic communities, outsiders are affected by these decisions but are not part of the decision-making process (ibid., 45). So, the democratic will-formation can be conflictual with the human rights of refugees and asylum-seekers, but these people cannot have any influence on the decision-making process, as they do not have any decision-making power. According to Benhabib, this tension needs to be mediated through an international regime that secures people’s right to have rights regardless of one’s nationality (Benhabib, 2004, 68). This regime should have the power to control and restrict states in their actions towards outsiders. The next section emphasizes this with the argument of the inadequacy of the current way of

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thinking about states and citizenship. The other way to mediate the tension between

sovereignty and universal human rights is through democratic iterations within democracies. This will be further explained in 3.5 “Deliberative democracy and moral principles” and 3.7 “Democratic iterations”.

3.4 The outdated Westphalian state system

The current way of regulating political membership grounds on the Westphalian state system, according to which people are assigned to states and the state gives people citizenship rights. This way of organizing the world is still the most dominant system (Benhabib, 2004, 12). However, it is no longer adequate in regulating just membership, as the Westphalian system grounds on the idea of states as homogenous and self-sufficient entities (ibid., 74). According to Benhabib, this perspective has become outdated and inaccurate, since the world has

massively changed in the last century. Globalization, the increase of transnational migrations, interdependency between states and the rise of international laws and human rights norms have deeply influenced state sovereignty (ibid., 12, 216). Sovereignty is no longer based on the self-sufficiency of a state, as global economy, trade, communication, technology, and political cooperation make states tremendously interdependent on each other. Besides, due to the increase of transnational migration and movements, states are no longer culturally

homogenous communities (ibid., 12).

With binding treaties and human rights regimes, states bind themselves to the

universal moral claims. Moreover, other forms of membership are emerging, which Benhabib calls ‘disaggregated citizenship’ (ibid., 73, 143). Disaggregated citizenship means that

membership is not necessarily bounded to nation states because there are other membership structures present on a local, regional, and transnational level. The European Union is a good example of this (ibid., 23). Benhabib favours the developments towards world citizenship where there is a federalism of states and where states are bounded to these international or regional human rights regimes (ibid., 68). The sovereignty of democratic states bases on the public autonomy of their citizens. The citizens of democratic states are also called the demos. The word refers to the people of a democratic community that have legitimate decision-making power. The demos decide on the principles and practices of political membership (ibid., 47, 216). Still, the people who are not part of the community do not have any decision-making power. The tension is still present. The next two paragraphs will explain how this tension can be mediated, according to Benhabib.

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3.5 Deliberative democracy and moral principles

The mediation of universal human rights through the democratic will-formation of a democracy is argued from the point of view of deliberative democracy theory. In a

deliberative democracy, the legitimacy of the decision is based on a just procedure of will-formation. This implies that citizens decide on the policies of their state in public deliberation (Benhabib, 2004, 13). The procedure in which this takes place can take on many forms, but there are some requirements that must be met in order to speak of a just and legitimate deliberation. First, the equality of participation is essential for deliberative democracy. Equal participation means that everyone who is concerned with the outcome can freely participate in the deliberation. However, deliberation takes place within the democracy and only the

members of a democracy will have the legitimate right to take part in the decision-making. The second required condition is the use of reasonable arguments that can be viewed as reciprocally acceptable. Participants of the deliberation should give reasonable arguments for their preferences in the sense that they also can be accepted by the other party in the

discussion. This creates a space where people use arguments that are not focused on preserving self-interest, but seek a common ground. However, people without membership cannot take part and are thus unable to specify their preferences and interests. The third requirement of a just deliberation is mutual respect between the participants, which means that the people see each other as people capable of speech and action. Still, this only happens between the community members (ibid., 13).

The problem of deliberative democracy is thus that while it idealizes the equal participation of everybody affected by the decision, the people who are affected by the immigration and refugee policies are not a member of the democracy, and as a consequence cannot participate in the deliberation (ibid., 15). To respond to this problem, Benhabib argues that the demos must take the interests of outsiders into account and give mutually acceptable reasons for excluding or including outsiders, so that it is acceptable to the people inside and outside the democracy (ibid., 14). Deliberative democracy is essentially limiting the morally acceptable options of inclusion and exclusion practices of a democracy (ibid., 14).

Consequently, these principles of deliberative democracy make it possible to defend the universal principles and practices towards refugees and asylum-seekers, because the participants in the deliberation must take the interests of outsiders into account and justify their practices of inclusion and exclusion to the people outside the democracy (ibid., 14). The principles that limit the moral acceptable options in the deliberation on the practices of inclusion and exclusion are (Benhabib, 2004, 3):

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 The admittance of refugees and asylum-seekers when they ask for asylum.  Porous borders in the sense that people have the right to stay temporarily.  The prohibition to take away citizenship or nationality

 The right to have rights.

 The right to political membership when the immigrant fulfilled certain conditions.  The prohibition to denaturalisation.

As these principles are mutually acceptable to all people who are involved, they should be accepted through deliberative democracy. In conclusion, while the potential immigrants and refugees cannot participate in deliberation, the moral principles must be mediated in the deliberation , which will contribute to the legitimacy of the outcome of the deliberation on the immigration and refugee policies (Benhabib, 2004, 21).

3.6 Democratic iterations

Benhabib argues that the moral principles, as set out in the previous paragraph, should be mediated in democratic communities through deliberation. To make this work, she establishes the concept of democratic iteration as a way of dealing with the tension between the universal human rights and the democratic sovereignty that requires a bounded demos that governs itself (Benhabib, 2004, 179). With democratic iterations, the decision-making on the membership policies can be mediated by the use of context-transcending moral principles (ibid., 19). Democratic iterations are processes of public argumentation and deliberation where the universal moral principles are discussed, positioned, contextualised, and integrated (Benhabib, 2004, 179). The concept of iterations is used in jurisdiction and refers to an ongoing repetition of principles and norms in which those norms and principles are given a new interpretation and adaptation (ibid., 180). Benhabib views the democratic iterations as a form of jurisgenerative politics. In such processes, the members of the democratic community are not only subject to the law, but also the authors of the laws.

Through jurisgenerative politics, the members of the democratic community are confronted with the context-transcending universal moral rights and principles. The universal moral rights and principles can be presented on the base of the community’s own

constitutional commitments to universal human rights or on the base of the awareness created by international organizations (ibid., 181). According to Benhabib, the European integration and globalization policies are strengthening the claim to universal human rights of refugees with enforcement mechanisms like the European Court of Human Rights (ibid., 216).

A theoretical analysis on the moral obligations of states towards refugees