Reparative Justice and States’ Responsibilities to Protect Refugees

Dr James Souter examines the conditions under which states owe asylum as a form of reparation to refugees.

The causes of contemporary forced migration are seldom purely local, but typically have significant regional, international and global dimensions. Most directly, external military intervention often forces very large numbers from their homes, as is the case regarding the current Russian invasion of Ukraine, and in other interventions such as the US-led invasion of Iraq in 2003. Large numbers of environmentally displaced persons can be expected as a consequence of climate breakdown in the coming decades. And, more indirectly, the origins of some refugee-producing conflicts can arguably be traced back, at least in part, to the legacies of direct colonial rule.

However, these international causes of displacement are often not explicitly or thoroughly taken into account in theorising on both asylum and the responsibility to protect (R2P). Asylum has often been viewed in primarily humanitarian terms, as an act of charity towards people uprooted by their own governments, while R2P has regularly been framed as a general responsibility borne by the international society of states as a whole, to be distributed among those states independently of any consideration of who caused the atrocities that prompted displacement in the first place.

While some political theorists have recently begun to take the international causes of displacement more seriously in their work (e.g. Buxton 2019; Coen 2017; Draper 2019; Espindola 2021), my new book, Asylum as Reparation, is the first systematic theoretical examination of the implications of these international causes for our understanding of states’ responsibilities to protect refugees. Its starting point is the moral intuition that those who have harmed or wronged another person bear a strong obligation to make amends for the harm they caused.

In the book, I apply this intuition to the context of asylum. Given that refugees are often created through the actions and policies of external states, I argue, asylum should not be conceived as a purely humanitarian act and a general responsibility, but rather at times as involving a special responsibility on the part of external states to offer reparation to refugees.

The Conditions of Asylum as Reparation

Asylum, I claim, can meaningfully offer reparation to refugees in distinct ways. It can act as a form of restitution (by restoring the state protection denied to refugees as a consequence of their flight); compensation (by offering goods and benefits to offset the losses associated with displacement); and satisfaction (by offering states a means to acknowledge their responsibility for refugees’ plight). However, despite the frequently international causes of contemporary displacement, I do not claim that asylum should always act as a form of reparation. Instead, I seek to identify the conditions under which it should. Drawing on a general moral principle of reparation, I argue that a state owes asylum as reparation to a refugee when:

1. An external state bears responsibility for causing the refugee’s lack of state protection;
2. That refugee has experienced unjustified harm, or is at risk of unjustified harm, as a result of this lack of protection;
3. The provision of asylum by that state is the most fitting form of reparation for that harm available;
4. The external state has the capacity to offer asylum as reparation to the refugee owed it.

Challenges and Complexities

As I explore throughout the book, applying these conditions to particular cases of displacement raises complex theoretical and practical challenges. Take the first condition of the theoretical framework, that an external state must bear responsibility for causing the refugee’s lack of state protection. Applying this condition is straightforward enough in a case such as the current invasion of Ukraine: a clearly identifiable belligerent, Russia, has directly created huge numbers of refugees through its aggression.

There are, however, other cases that are not so straightforward, where displacement is instead the cumulative result of the actions of a wide range of agents: this may be the case with regard to environmental displacement, or refugee movements which may have been partly or wholly generated by forces in the global political economy. The challenges of attributing reparative responsibilities to particular states in such cases are stark, and I suggest in Chapter 4 that at times such challenges should only be addressed through a political, deliberative process involving refugees themselves.

The third condition, that asylum must be the most fitting form of reparation for the harms of displacement, also contains its own complexities. As Matthew Price has highlighted, asylum is merely one way of assisting refugees among others, such as facilitating safe and voluntary repatriation, offering in situ aid, or even conceivably engaging in coercive or military intervention to address the atrocities that lie at the root of displacement. These may, it can be argued, at times be more fitting forms of reparation for the harms of displacement.

In addition, refugees may not even desire asylum in the state that displaced them, but may prefer protection elsewhere. Returning to the example of Ukraine, the fact that so many Ukrainians have fled westwards strongly suggests that any form of reparative asylum in Russia would not be desirable for many refugees in this context. So, while Russia certainly owes extensive reparation to Ukrainian refugees, there is reason to doubt whether such reparation should generally take the form of asylum in this case.

Nevertheless, there are other cases where asylum can be said to be the most fitting form of reparation for the harms of displacement, such as for many Iraqi and Afghan refugees displaced by Western intervention and more recent withdrawal, should they choose that option. Furthermore, asylum has general advantages as a form of reparation over in situ measures such as aid or coercive intervention: it provides immediate and peaceful protection to refugees, rather than the less direct and potentially very counterproductive effects of intervention, which may well create another round of injustices that generate further reparative obligations.

The book also explores other important questions raised by a reparative approach to asylum. For instance, would states owe asylum as reparation to refugees if their flight was brought about in a justified manner? How should we assess the capability of states to offer asylum as reparation? How should refugees with reparative claims for asylum be prioritised vis-à-vis those bearing humanitarian claims in a state facing genuinely limited capacity? How might the idea of asylum as reparation affect the international politics of refugee protection, and particularly so-called ‘burden-sharing’ schemes, which seek to distribute refugees across states?

Through an exploration of such questions and complexities, the book seeks to present a nuanced framework for considering states’ reparative responsibilities to refugees in an age of displacement. Unfortunately, this framework looks set to retain a grim relevance as the twenty-first century progresses, in a context in which states can all too often produce refugees with impunity.

James Souter is a Lecturer in Political Theory and International Politics at the University of Leeds. Asylum as Reparation: Refuge and Responsibility for the Harms of Displacement is published by Palgrave Macmillan (2022).

Image credit: WikiMedia, licensed under Creative Commons Attribution 4.0 International.

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