Enough Spurious Distinctions: Refugees are Just People in Need of Refuge

Law and Philosophy  The Author(s). This article is an open access publication 2025 https://doi.org/10.1007/s10982-024-09516-1 KIERAN OBERMAN ENOUGH SPURIOUS DISTINCTIONS: REFUGEES ARE JUST PEOPLE IN NEED OF REFUGE (Accepted 9 September 2024) I. INTRODUCTION What makes refugees different to non-refugee migrants? A plausible answer is that refugees need refuge. Within their home state, they fall below some threshold. To fulfil their basic human needs, they must migrate elsewhere. Non-refugee migrants might be badly off in relative terms, but they don’t fall below this threshold. It is because refugees need refuge that they have a claim to refuge. States are obligated to admit them at least when they can do so without severe cost. Call this the ‘‘Needs Account’’ of refugeehood. The Needs Account combines a needs-based definition of a refugee with a needs-based argument for refugee protection. Refugees are people in need of refuge, and, for this reason, they have a claim to refuge. While the Needs Account is intuitive, it is also controversial. Part of the controversy is its departure from international law. The United Nations Convention Relating to the Status of Refugees defines a refugee as someone who is outside their country of nationality and cannot gain protection from it, nor return to it, because of a ‘‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’’.1 This is a much narrower definition. Out of all the reasons why someone might need refuge, the Convention selects just one, fear of persecution, as the basis for refugeehood, and, even then, insists that people must be persecuted for the particular reasons listed. Anyone who needs refuge for any other reason is not a refugee. 1 United Nations General Assembly, Convention Relating to the Status of Refugees (1951), Article 1A (2). K. OBERMAN Within public debate, politicians and the media use the Convention definition to help justify exclusion. Asylum applicants who do not fit the definition are branded ‘‘bogus’’ and ‘‘fraudulent’’. Since they are not Convention-definition refugees, they are assumed to have no moral claim to refuge. They can be excluded without shame. Even refugee organisations have, on occasion, sought to reinforce the distinction between Convention-definition refugees and other people in need. Adrian Edwards, of the United Nations High Commissioner for Refugees (UNHCR), argues that only Conventiondefinition refugees ‘‘need sanctuary elsewhere’’. Migrants, by contrast, ‘‘choose to move’’. They face no ‘‘impediment to return’’.2 Scholars studying the ethics of refugee policy have tended to be more careful. They realise that many migrants who do not fit the Convention definition do not choose to move but are forced. Still, there is a reluctance to endorse the Needs Account. While the account, or something close to it, was once proposed by Andrew E. Shacknove, it has since been widely criticised. Scholars have claimed there is some further factor, beyond need, essential to the definition of a refugee and the argument for refugee protection. Suggested factors include the impossibility of assistance in situ and the need to legitimise the state system. As we shall see, even Shacknove includes other factors alongside need. This article defends an unadulterated needs account. Refugees are just people in need of refuge. It is because they are in need that they have a claim to refuge. When politicians and the media brand asylum applicants ‘‘bogus’’ and ‘‘fraudulent’’ for failing to fit the narrow Convention definition of a refugee, they draw a morally spurious distinction between Convention-definition refugees and other people in need of refuge. Someone can fall outside the Convention definition and yet have an equally strong claim to refuge. Scholars who oppose the Needs Account do not all support the Convention definition, but they too draw questionable distinctions. They offer various reasons why the term ‘‘refugee’’ should be reserved for only a subset of those in need of refuge. As we shall see, none of these reasons prove persuasive. 2 Adrian Edwards, ‘‘UNHCR Viewpoint: ‘Refugee’ or ‘Migrant’—Which is Right?’’. https://www. unhcr.org/ph/10990-10990.html (accessed: April 27 2023). ENOUGH SPURIOUS DISTINCTIONS... II. METHODOLOGY The argument for the Needs Account starts with a point of methodology. Despite all the debate over the refugee definition, there is surprisingly little reflection on the criterion for choosing among definitions. Let me present the criterion I follow. The first point to clarify is that we are, at least initially, pursuing a non-legal definition. The term ‘‘refugee’’ has a life outside law. Politicians, the media and activists use the term in debates over policy. While their use of the term generally tracks the Convention definition, it does not always (see the discussion of ‘‘war refugees’’ below), nor need it. We could refer to some people as ‘‘refugees’’ in public debate even if they are not refugees in law. The law has no monopoly over our language. That said, the law is enormously consequential. This article thus also seeks to inform debate over the best refugee definition for international law. Given that the Convention definition is so narrow, there is a case for redrafting the Convention. Some worry that, in the current climate, redrafting would prove counterproductive. States would take the opportunity to weaken their obligations.3 If this is true, it is not the right time to redraft the Convention. But this does not mean that law could not be improved, nor that there will never be an opportunity for change in the future. We are then selecting a definition for political life and, potentially, the law. What is the relevant criterion for selection? Let us distinguish two questions: 1. The Definition Question: Who is a refugee? 2. The Normative Question: Who has a claim to refuge? These questions are generally conflated, with scholars giving the same answer to both. But the questions are logically distinct. One could, if one chose, define one group of people as refugees while believing some broader group have a claim to refuge. One reason why one might do this is out of respect for linguistic convention. Many people use the term ‘‘refugee’’ in line with the Refugee Convention. One might feel that any definition which radically departs from the Convention is too violent a break with current use. 3 Luara Ferracioli, ‘The Appeal and Danger of a New Refugee Convention’, Social Theory and Practice 40 (2014), 123–144. K. OBERMAN One might still believe that a broader group have a claim to refuge. One would just be insisting that this broader group pursue their claims using a different label. Distinguishing these two questions is helpful as it allows us to see that the Definition Question is less important than the literature implies. What really matters is the Normative Que (...truncated)