[This paper develops further some points first presented with Maja Janmyr in the Nansen Minneforelesning 2022: Om Nansenpasset og flyktningsituasjonen i Europa – da og nå.]
The 1951 Refugee Convention (United Nations (UN) 1951) has a narrow, Eurocentric definition of refugees.[1] ‘Convention refugees’ are persecuted, on certain grounds, and outside their home state. Real-politik and expediency may explain the narrow definition but is no justification. Several critics deny that these refugees have distinct and strong normative claims on other states and individuals, compared to many others in dire need.
The present article justifies the special claims of Convention refugees and defends this argument against several objections. An improved Refugee Convention compensates for a normative ‘construction flaw’ of the system of sovereign nation states, to render this state system and its individual states more legitimate. This argument combines insights of several scholars to address thought-provoking criticisms raised by Daniel Sharp, David Miller, Christopher Wellman and others. In particular, how can it be that we are all involved in “refugee production” everywhere, in such a way that failure on the part of any one state to participate in refugee protection would undermine its political legitimacy. (Miller 2021, 451)
Several authors also deny that our obligations to Convention refugees go beyond humanitarian duties and should override the special duties among compatriots (Miller 2005, Miller 2016, Miller 2021, Wellman 2008, Wellman 2011).
Why does the legitimacy of a state depend not only on how it treats its inhabitants and respects other states’ sovereignty, but also on a satisfactory refugee regime? Section 1 presents and criticizes the Convention definition of refugees. Its 20th century history buttresses claims that political expediency shaped its narrow scope. [Section 2 sketches parts of the 1000-year history of European political and legal thought that links the special claims of refugees to the legitimacy of territorial states.]
Section 3 offers a brief account of the state system, before section 4 addresses why the claims of these ‘Convention refugees’ must be honoured for the system of sovereign states to be more legitimate. Legitimate authorities must serve all subjects, but the state system renders Convention refugees worse off compared to a world order without states. Governments enjoy sovereignty - immunity and self governance – which allows them to persecute some persons more without outside intervention. Unbridled nation-state ideology increases the risks, and the system of states covers the globe leaving the persecuted no territory to escape. A legitimate state system must therefore include several corrective mechanisms to ensure that it benefits all subjects. One such mechanism is a refugee regime that coordinates states’ responsibilities for Convention refugees. [This argument draws on and combines several similar arguments about the refugee regime as a legitimacy repair mechanism or corrective (Owen 2020, 47; Brock 2020, 34; Carens 2013, 196; Bertram 2018; Lister 2013).
Section 5 addresses some criticisms by showing that state sovereignty is constituted by states’ practice, as a ‘global social primary good.’ This explains how all states and their inhabitants contribute to ‘refugee production.’ We therefore also share a responsibility to alleviate the harms we contribute to cause, which is not just a matter of charity. The claims of refugees may also be understood as special duties in David Miller’s sense, so that any trade off with duties among compatriots are among different special duties.
Section 6 concludes.