Wednesday, 11 November 2015

The Human Rights Case for Migration

Migration is a meta-human right: a right that other human rights depend upon. Since some governments are malevolent or simply incapable of protecting human rights, a commitment to human rights requires a commitment to the freedom of individuals to move to countries where they can live a decent life. Refugees - homeless, futureless - present an international moral emergency that trumps the usual considerations of national statecraft such as fiscal implications and political risk for governing parties.

I speak not only as a moral philosopher but as a migrant. I have lived in 5 countries on 3 continents. I have moved with my parents, who managed to turn the mundane job of teaching high school English literature into a world wide adventure. Later I learned to move for myself: I went to Japan to explore another culture; I came to the Netherlands to follow an academic specialism taught in only a handful of places; and now I'm working in yet another country – in the PPE programme here at Witten/Herdecke University – where my specific constellation of academic interests and skills seem to be of some value.

Since this is an academic conference I assume that a great many of you too have a history of migration.

All this was made possible for me because I have the right kind of passport, from a rich, powerful country that isn't especially oppressive. In other words, I have the freedom to migrate exactly because it is not particularly important for how my life goes. 

By contrast, the country in which I was born, Malawi, though not particularly oppressive, is one of the very poorest in the world. Coffins are a major industry. The freedom to migrate could make an enormous difference to how the lives of Malawians go, and that is exactly why it is denied to them.

Who is served by immigration control? (Polyp

It seems obvious to me that this is exactly the wrong way around. If migration is a privilege it is, following Joseph Carens, a morally repugnant one of inherited socio-economic status that recreates feudalism in the modern world. Migration is better understood as a human right, the term we use for cases in which power should be held accountable to people rather than vice versa. And not only a universal right held by all humans but one of particular importance that trumps the usual discretion accorded to states. 

I will make 4 claims in this talk.

Firstly, that migration should be recognised as a meta-human right, that is, as a right which plays an architectonic role in assuring other human rights.

Secondly, because meta-rights are very important they trump the ordinary business of politics, such as popularity with voters, fiscal implications, and political risk for governing parties. Their absence constitutes a moral emergency that trumps the state's less urgent obligations to its existing citizens. 

Thirdly, that analysing migration in terms of a meta-right – rather than, for example, a privilege that may or may not be granted – places the burden of proof on states to provide a justification for not granting access to the legal rights of legal residency. States cannot evade the challenge 'Why not?'.

Fourthly, that from a moral philosophical perspective, the main problems posed by large flows of refugees such as we are now seeing in Europe (which are not at all unique even in European history) are logistical rather than foundational. Like other international emergencies, such as climate change or pandemics, they have to do with how best to coordinate states' efforts to fulfil their moral obligations, not whether or not they have such obligations.

A caveat. Although I will be focusing on forced migration today – i.e. refugees from conflicts and persecution – rather than other kinds of migration, I do not mind that much of my analysis would apply to migration in general, that is, to Malawians drawn by hope of a better life for themselves and their children as well as to Syrians driven out of their homes. The distinction is anyway not ontological but pragmatic: refugees are those who need positive help, for example, chartered planes to bring them from Lebanon, while other migrants can be expected to buy their own plane tickets.

I. Migration as a Meta-human right
As a practical matter, as noted by Hannah Arendt (in her famous chapter in The Origins of Totalitarianism, 'The Decline of the Nation-State and the End of the Rights of Man'), access to human rights depends on the government of the state you live in. Thus whether or not you enjoy the rights that international law and moral theory say that you have merely by reason of your membership of the family of humanity depends on how states choose to treat you.

Thus the practical significance of the right to have rights, that is, the right to be acknowledged by a competent state as a bearer of human rights. Since some governments are malevolent or simply incapable of protecting human rights – as in a war -  the right to have rights requires that people must be free to leave such states for others where their access to human rights is acceptable. Migration is a meta-right in so far as it plays a key practical role in assuring the right to have rights in the real world of states and state failure.

Of course, this doesn't solve the root causes of forced migration, what turned people into refugees in the first place. That too is a moral obligation upon states, as is becoming slowly realised by such international institutions as the International Criminal Court and the Responsibility to Protect. 

But where we cannot successfully address the causes of their plight, accepting refugees is the only way we have yet discovered to save at least some people from the effects of gross state failure. The world is littered with examples of the consequences of failing to do so. There are millions of people still living in what amount to internment camps on the borders of Israel, Somalia, and so on. There may be great grandchildren of the original refugees still confined to the limbo of statelessness, unable to move forward or back. Unable, for example, to pursue university studies, own a home, travel outside certain areas, or work.

2. Meta-rights are Trumps
Contemporary debate about refugees remains trapped within the frame of domestic politics, in particular of the analysis of social costs and benefits to each  polity. But the homelessness and futurelessness of millions of human beings cannot be analysed adequately in the same way as a decision about whether to build an airport.

Helping any significant number of refugees to recover their lives will be economically expensive and disruptive to public institutions, civil society, and the expectations and second order rights of present citizens. For example, the commandeering of buildings for accommodation, the influx of non-German speaking children into schools before new teachers can be trained and classrooms built. And there is no clear benefit to society to balance against these costs. If this were an airport, no democratic government should build it!

But this conclusion is driven by technical errors.

First, of what goes uncounted. So long as the benefits to refugees themselves aren't counted any cost-benefit analysis for helping them will fail. For it will consist mainly of costs, with only some unconvincing speculation on the other side about shoring up the social security system in countries like Germany by increasing the working age population. 

Second, of applying cost-benefit analysis to an emergency situation. Democratic rule of law states normally suspend the usual cost-benefit analysis procedures in cases of national emergencies, such as domestic refugees fleeing a hurricane or nuclear melt-down. The priority then is in saving as many people as possible and helping them put their lives back together afterwards. The costs of this do not go through the normal budgeting process. Although there is some attention to controlling costs by choosing more rather than less efficient means (trucks not helicopters for logistics), that does not extend to controlling the total costs of dealing with the emergency: governments simply pay what it costs and figure out how to budget for it when the emergency is over. International refugees clearly constitute an emergency just as much as domestic refugees do.  

This brings me to the issue of whether states can decide whether or not refugees are their problem.

3. Why Not?
Rainer Forst has proposed a very helpful way of thinking of justice, in terms of the basic right to a justification. In particular, those affected by the exercise of government power have a right to an adequate justification. The simple and intuitive idea behind this is that power should not be arbitrary.

In the normal case, rights claims are to be made to the state which recognises you as a citizen or legal resident. But refugees – people deprived of a polity that will protect their most basic rights – are obviously unable to do this. Their human rights claims do not disappear, but become the responsibility of any states in a position to assist. I think this principle is generally acknowledged, not only in the Convention and Protocol Relating to the Status of Refugees but elsewhere in international humanitarian law and practice, such as in the Responsibility to Protect doctrine by which the 2011 military interventions in Cote D'Ivoire and Libya were justified.

What this comes down to is that refugees deserve an answer to the question, ‘Why not?'

States cannot evade providing a justification for their policies towards refugees; they cannot pretend that they are not making a moral choice. I think one can see that even many states avowedly disinterested in the current refugee problem – such as the UK - implicitly hold to this idea. Why else would they go to so much effort to prevent refugees from setting foot on their soil and having to reject their claim to a new home and a real future to their face?

Does this undermine national sovereignty? I do not see how.

Much public discourse about migration confuses the right of governments' to control access to their territory and the legal status of citizenship (i.e. sovereignty) with the question of what is the right thing for governments to do (morality). But this is just another way of saying that states, like individuals, have to make moral choices.

Many governments do not do the right thing of course - that is why we have so many international refugees in the first place. But the concept of sovereignty would become ridiculous if it was taken to mean that whatever a government chooses to do thereby becomes the morally right thing to do. We can and do criticise governments for their moral behaviour all the time - a great deal more of democratic politics consists of this than of voting - exactly because we believe that moral arguments can sway government decision making.

4. International coordination
Governments do have a special moral obligation to their citizens. Indeed an important justification for government is to help citizens fulfil our moral obligations to each other, such as an effective social insurance system that prevents destitution. But this special obligation is not a shield that can defend governments, or current citizens, from other international moral obligations, such as to play their part in mitigating climate change and global pandemics or ensuring a future for refugees who have lost their homes.

Mainly what we are dealing with here – as with many global problems - is the ‘bystander effect', wherein exactly because multiple countries are in a position to help, each individually feels less responsibility to do so and takes a step back. When some country - such as Germany - does step up, other countries may actually feel that they have been relieved of responsibility. The problem is compounded in the international arena by the lack of a higher power to transform general responsibility into specific obligations for each state that represent a fair and effective division of labour.

But besides the 5 million externally displaced Syrians, there are many millions from other destroyed or oppressive countries, from Afghanistan to Eritrea to Somalia to Palestine. It is quite obvious that no single country – not Germany; not even America - is in a position to take in all the refugees who want a new home. An international effort is required, just as for the coordinated resettlement of the 200,000 Hungarians who fled the Soviet invasion in 1956 and were placed between 32 countries (a part of Hungary's history that its current prime minister has somehow forgotten). Or the much more belated resettlement of 2.5 million Indochinese refugees from the original boat people crisis of the 1970s and 80s.

These examples give some cause for hope, to set against great failures such as the Palestinian, Somali and 1930s European cases. We know that states can cooperate to successfully address international moral emergencies of this scale and complexity. If they are properly motivated.


Let me conclude by noting the limits of moral philosophy on this issue. I have claimed that the moral case for the right to migrate is clear. One reason for my confidence is that one can reach my conclusion via a variety of routes through moral philosophy besides the one I have outlined here (as noted by Joseph Carens). But not vice versa. The only moral case against the freedom to migrate that I know of comes from communitarianism, and suffers from all the many weaknesses of that approach. 

Refugees present no real problem for moral philosophy. But politics does not automatically follow the dictates of moral theory, not even when those theories have been formally incorporated into state constitutions. Much of the case I have outlined here follows from Hannah Arendt's striking analysis of the phenomenon of mass statelessness in 1930s Europe and the failure of the merely moral concept of human rights to overcome pernicious ‘tribal' forms of political nationalism. It is disappointing to see just how relevant Arendt's description still is to the politics of Europe today, especially in the new members of the EU such as Hungary. (And even more to the politics of the Rohingya refugee crisis in South Asia.)

As we have seen most recently in the gay rights revolution, moral arguments require active citizenship to succeed. It is only by politics that we can overcome the complacent inertia of our fellow citizens and the politicians who cater to them, by challenging such fallacies as the conflation of national sovereignty with moral righteousness, and thereby bring our governments to do the difficult but right thing.

Note: This is the lightly edited text of a talk I was invited to give at a recent conference on 'Migration, Institutions, and Institutional Change' at Witten/Herdecke University.

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