Rethinking the Role of Human Rights in the International Refugee Regime

By James W. Davis
Friday, March 10, 2017, 12:36 PM

Among the many legal issues raised by the President’s January 27, 2017 executive order (EO) temporarily halting entry into the United States of citizens from seven primarily Muslim countries, including war-torn Syria, was the status of individuals claiming refugee status. Ostensibly to protect the United States from terrorists posing as refugees, the EO suspended the United States Refugee Admissions Program (USRAP) for a period of 120 days. Then, on March 6, 2017, the president revoked the original EO, replacing it with a document of narrower scope. The revised EO exempts from the travel ban those foreign nationals who have been granted asylum status and refugees who have already been admitted to the United States, but it nonetheless suspends decisions on new or pending applications for refugee status and orders a review of existing USRAP application and adjudication processes.

Although the focus of the legal battles over the original EO and Federal Judge James Robart’s restraining order has understandably been on issues relating to the President’s constitutional and statutory powers to control the borders, the controversy also provides an opportunity to revisit the international constructs governing the treatment of refugees. For whereas states clearly have the right to control their borders and regulate immigration, the 1951 UN Convention Relating to the Status of Refugees as amended in 1967 is widely held to oblige states to grant refugee status to individuals fleeing persecution in other countries. Indeed, German Chancellor Angela Merkel was reported to have reminded President Trump of this obligation during a telephone conversation on the very day of his signing the original EO.

Unlike the president, I do not want to suggest the U.S. should abandon solemn treaty obligations to which it has acceded. And I am not persuaded that the primary motivation for the president’s temporary ban on refugees was based on a thorough assessment of the threat they pose to the homeland. Nonetheless, I do want to argue that ongoing developments in Europe provide ample grounds for an interrogation of the conceptual foundations of the current international refugee regime.

In the fall of 2015 Hungary began to erect razor-wire fencing along its border to Serbia in an effort to stop a growing number of refugees seeking asylum in the European Union (EU). The futility of the effort, both as a physical and political measure, became clear almost from the start. For one thing, national measures could not cope with the sheer numbers of refugees arriving in Europe from the Middle East and North Africa—whether through Greece and Italy, or via Turkey and Serbia to Hungary, Slovenia, Austria and ultimately Germany. For another, images such as that of the three year old Syrian refugee, Aylan al-Kurdi, who drowned at sea before being washed ashore as his family tried to reach Greece from Turkey, put a human face on the crisis and evoked an outpouring of emotion across Europe. The ensuing mood left little room for a rational analysis of the causes and possible responses to the unfolding human catastrophe. By September 2015, Chancellor Merkel opened Germany’s borders to anyone who could claim the right to asylum. Her motto: “We can do it!”

Moved by the human tragedy and inspired by the determination of Syrian and Iraqi refugees to escape the brutality of both the Syrian regime and the so-called Islamic State, I was not immune to these appeals to emotion and calls to action. On more than one occasion I walked the ten minutes from my apartment to the central train station in Munich in order to donate whatever was needed at the time for the arriving refugees: bottled water, baby formula, pampers. And of course I was impressed by the warm welcome the citizens of Munich extended to the throngs of tired, scared and traumatized refugees as well as the orderly and well-organized process of moving them to refugee facilities across the country.

But the euphoric self-confidence of late 2015 was short-lived. Realizing that many, perhaps most, of the refugees probably are here to stay, the focus of citizens increasingly is directed to the economic and social challenges of integrating hundreds of thousands of persons with very different cultural values. The widespread sense that the EU is not providing for an equitable distribution of the burden has given way to deep political divisions and mutual recriminations, both among and within individual EU member-states. The nightmare of unrestricted migration has exacerbated the tensions created by ongoing European debt and finance crisis and provided right-wing populist politicians further arguments in support of their nationalist and xenophobic shibboleths. Fear of unrestricted immigration was a major factor in moving a majority of British citizens to vote in favor of leaving the EU. And with the arrival of Islamist terror in Germany this summer, what many once regarded as a humanitarian crisis is increasingly seen as a security threat. As a result, Chancellor Merkel’s legendary popularity among the German electorate has plummeted to an all-time low.

Given the magnitude of the challenge, what seems most striking about the current politics of immigration in Europe is not so much the volume of the debate, but rather the lack of a reasoned analysis of possible alternative responses. On the one side, conservative parties promote closing their country’s borders and protecting its national (often modified by the adjective Christian) character. On the other side, leftist parties, supported by some elements of the Christian Democrats, defend an absolute right to asylum for anyone legitimately fleeing terror, persecution, or war. A serious debate in pursuit of a position between these poles is nowhere in sight.

Rejecting the populist appeals to ethnic nationalism that characterize many critiques of Merkel’s original decision to open Germany’s borders to Syrian and Iraqi refugees, both within Germany and Europe at large, I nonetheless want to suggest that the proponents of an absolute right to asylum share some responsibility for the resurgence of right wing xenophobic movements across Europe. For in casting the issue as one of individual rights, they have narrowed the scope for legitimate debate on how to cope with the massive flow of refugees. In reducing questions of justice—What is right?—to the ascription of a subjective human right, they enfeeble the political process, which at its essence is concerned with making tradeoffs in situations where the pursuit or defense of multiple values is impossible.

The right to asylum is a specific example of a more general development whereby rights have become integral to our conceptions of justice. In pursuit of socially desired outcomes, the enumeration of individual rights all too often has become the vehicle of choice. Consequently, we increasingly equate violations of law, or the commitment of wrongs, with the violation of somebody’s rights.

That there are serious limitations to such constructions, however, can be demonstrated even for situations where society’s acceptance of a particular right is widespread and longstanding. Take, for example, the case of property rights. Although it is always unlawful for someone to break into a house and steal a painting, a clear violation of the law does not imply that the resident of the house was the rightful owner, as the numerous claims for restitution of artworks stolen by the Nazis or looted in war make clear. Individual acts of stealing, it seems, do not necessarily provide information on whose property rights have been violated.

A more fundamental problem concerns the fact that by their very nature rights impose duties on others. Or put another way, when claimed, rights impose legitimate limits on the freedom of others. In the original formulation, human rights were regarded to be “self-evident” and “inalienable,” and were directed toward the state. They were “negative” in the sense that they imposed a duty on the state to refrain from actions that unnecessarily violated a person’s life, liberty or pursuit of happiness. States often violated human rights, but did so at the expense of domestic and international legitimacy. When widespread, a state’s violation of its citizens’ basic rights legitimated disobedience or in the extreme, armed resistance.

But in the wake of the Holocaust and widespread deportations following the Second World War, and further spurred during the process of decolonization and the civil rights movement in the United States, the original articulation of a small set of self-evident negative rights underwent a dramatic transformation. Two issues are especially relevant for the discussion here. First, a vastly expanded array of desiderata were now articulated in the language of positive rights. Second, although the identity of the bearers of the ever increasing catalogue of rights was clear enough—i.e. all members of the human family—more often than not, the various human rights declarations were silent with respect to the persons or agencies on whom the corresponding duties simultaneously were conferred. Or, in the alternative, the duties in question were regarded to be absolute and universal.

Adopted by the U.N. General Assembly in 1948, The Universal Declaration of Human Rights already contained an astonishing list of enumerated rights, including the right to ‘‘food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." The list of individual rights conferred by the Universal Declaration has been expanded in numerous subsequent documents, including the International Covenant on Economic, Social and Cultural rights, which went so far as to recognize a universal right to strike, an intrinsic endowment of questionable value to members of nomadic herding cultures, family farmers or the otherwise self-employed. Even when applicable, such constructions, if they are to produce the desired effect, must impose an obligation on somebody to provide the designated benefit in the event that someone claims their right. More often than not, however, the locus of responsibility remains unspecified (are human rights claims in rem or in personam?). But assuming it were, how should we proceed when limited resources makes the simultaneous fulfillment of duties to multiple claimants impossible or when the fulfillment of one person’s rights claim can only be accomplished by violating the rights of others? Upon reflection, it becomes clear that the answers to such questions are not only of a practical nature. They raise fundamental questions relating to the locus of legitimate political authority.

In the modern era, the authority to make the trade-offs required by the pervasive and inevitable clash of rights, values, and interests was relegated to the domestic political processes of territorially defined nation states. In Europe, the principle has been enshrined in the European Court of Human Rights’s doctrine of the “margin of appreciation,” which maintains that states are best placed to make judgments over the curtailment of universal human rights in pursuit of other values. But fearing the vagaries of the political process—and Trump’s EO suggests such fears are not without basis—it is precisely this authority that proponents of an absolute right to asylum undermine.

But can we really escape the need for political solutions to humanitarian crises by resort to the ascription of an absolute and universal individual right? And is it wise to attempt to do so?

Again, developments in Germany are illustrative. Unwilling to compromise Germany’s commitment to the individual right to asylum, Chancellor Merkel has resisted calls to set an upper limit on the number of refugees Germany will accept. To do so would confer arbitrary benefits on those refugees who just so happen to arrive before the limit has been reached. But when the number of persons who could legitimately make a claim to asylum status based on war, political or ethnic persecution today exceeds 65 million, the inherent paradox of the basic construction becomes clear. For whereas a few thousand additional refugees would unlikely change the overall prospects for those already absorbed or impose significant additional burdens on host country citizens, an additional 500,000 or million probably would. There is simply a limit to the absorptive capacity of even the richest of states.

Moreover, at some point, the unrestricted imposition of burdens on others challenges our basic understanding of fairness, creating political limits on Germany’s absorptive capacity. If the flow of refugees continues, and enough Germans come to believe that they have been asked to shoulder an unfair share of the burden, Merkel’s unwavering fealty to the conception of an absolute individual right to asylum in cases or war or persecution is likely to cost her her job. Thus, in the case of Syrian refugees, a legal construct that was intended to shield individuals from the vagaries of international politics ironically has led to a situation where Europe’s response to a matter of regional peace and security has been relegated to German domestic politics. Meanwhile, others in Europe remain silent or cynically proclaim their steadfast support for human rights.

Is there a better alternative?

Although there is no guarantee that a fundamentally different approach to the humanitarian challenges posed by large numbers of international refugees would lead to a better outcome, being honest about the inevitability of politics—that is, about the need for a political solution—just might. Abstract debates about the duties we owe to individuals—even in the absence of close familial, religious or national ties—distract us from the obligations states have or could agree to vis-à-vis each other. It is hard to imagine a situation in which Germany could sanction others for not granting asylum to a Syrian refugee who disembarks a train in Munich. But when states fail to fulfill the obligations they make to each other, other states do tend to act, and international politics provides for a wide range of responses. As Europe’s dominant economic and political power, Germany would have been well placed to badger, bribe or bully others into sharing the burden of absorbing large numbers of refugees if the crisis had been framed as a question of international or regional security rather than of individuals’ rights to asylum.

Is President Trump the right person to begin a discussion evaluating the continuing merits of the current refugee regime? Given his general hostility to multilateral solutions to international problems, probably not. But it is that very same aversion to general obligations in international affairs that is likely to convince others of the need to confront the U.S. with a more determined political posture.