Humanitarian Externalisation

Why are the reasons given in support of the declared aim of the current asylum policies in the UK, EU and USA of breaking the business model of smugglers expressed in humanitarian terms? For example, Boris Johnson declared when introducing the UK’s Rwanda deal:

This innovative approach – driven our shared humanitarian impulse and made possible by Brexit freedoms – will provide safe and legal routes for asylum, while disrupting the business model of the gangs.

It is, no doubt, tempting to simply dismiss this humanitarian rhetoric as hypocrisy, as the compliment that vice pays to virtue. Yet however justified that dismissal may be in particular cases, to turn away too quickly from this phenomenon would be to miss something of political significance in its form and to fail to register the historical entanglement of humanitarianism and border externalisation.

Human Beings as Objects of Moral Compassion

Writing back in 2016, Didier Fassin remarked:

Over the past four decades, the status of refugees and the parameters of asylum in Europe have been reshaped by changes in both the political representation of the individuals concerned and the evaluation of their claims’ legitimacy by government officials. Whereas many European states once regarded asylum as a right, they now increasingly treat it as a favor. In parallel, the image of refugees had to be transformed, from victims of persecution entitled to international protection to undesirable persons suspected of taking advantage of a liberal system.

This transformation involved a shift from a political picture of the refugee as a subject of rights to a humanitarian conception of the refugee as an object of moral compassion. It is a crucial part of what has enabled the justification of policies of border externalisation, first, by supporting a logic of containing refugee flows in neighbouring states and the development of the legal and political discourses of the ‘safe third country’ – and, second, by providing justifications for intensifying border externalisation policies.

The key feature of humanitarian discourse is a focus on human being as suffering bodies who are owed compassion which is expressed as the protection of their basic needs. This works to remove the link to civic integration and the presumption of membership acquisition in the state of asylum that are central to the 1951 Refugee Convention from the regime of refugee protection. It thereby legitimates a shift to a global regime of protection in which ‘presence’ and ‘resourcing’ can be sharply separated. The outcome, as Alex Aleinikoff and I have noted, is:

an unholy grand bargain at the heart of the international refugee regime: states of the Global South take refugees in so long as states of the Global North provide (albeit inadequate) financial support and don’t press human rights concerns [474].

Neighbourhood containment becomes the default norm of the protection system.

This is, in turn, reinforced by the politics of ‘third safe country’ discourse. Violeta Lax-Moreno has nicely reconstructed the key political logic at work here:

an obligation to recognize and protect refugees arises solely with regard to those in genuine need of protection; and only those who come “directly” from the country in which they fear persecution are believed to be real refugees. The supposition is that, being in genuine need, protection is sought in the geographically closest place. Therefore, those who choose to transit through intermediary countries after they escape to reach destinations afar are deemed not to be seeking protection but some form of improved living conditions and are hence considered liable to ordinary immigration rules; accordingly, their claims are handled as manifestly unfounded. On this reading, only immediate flight from persecution is covered by the exemption from penalties enshrined in Article 31 of the 1951 Convention 28 and this, in turn, is held to impact on the merits of the claim. Subsequent movement amounts to “asylum shopping” and is portrayed as an abuse of the protection system [669-70].

This political logic has a surface plausibility precisely because the refugee and refugee protection are construed in humanitarian terms.

Restricting Refugees’ Choices

The immediate upshot of this situation is that the realistic choice set of refugees is restricted to three options:

1)         Typically long-term residence in a refugee camp with very limited opportunities for shaping one’s life.

2)         Precarious lives in urban or peri-urban settings with a potentially wider range of opportunities but significant risks of exploitation, domination and marginalization.

3)         Dangerous journeys to advantaged states.

It is unsurprising, given these circumstances, that some take up the third option and it is equally unsurprising, given the emergence of this travel market, that providers of border-crossing services arise to meet the demand. The rise of the smuggling industry is best seen as a response to the failure of the refugee protection regime to provide access to forms of protection in which refugees can coherently understand themselves as effective social and political agents able to navigate their environment and shape the development of their lives without incurring unreasonable risks.

The tragic irony of this development is not only that it increases the dangers of refugee journeys given that the illegality of border-crossing services means their supply is most likely to draw in providers already operating in zones of criminality. What is more, this fact is then also taken up and mobilized as a humanitarian reason for further intensification of externalisation policies and technologies of remote-control.

An exemplary articulation of this politics is provided by the Australian Prime Minister Tony Abbot in 2015 as part of his response to the charge by the UN special rapporteur on torture that Australia’s refugee policy was in breach of its international commitments:

The most humanitarian, the most decent, the most compassionate thing you can do is stop these boats because hundreds, we think about 1200 in fact, drowned at sea during the flourishing of the people smuggling trade under the former government.

This rationale is one that has been embraced more recently by the EU in relation to Mediterranean sea crossings (see below) and by the UK in relation to boats crossing the Channel.

Humanitarianism as a Justificatory Discourse

To understand the “moral” logic of these new developments in the use of humanitarianism as a justificatory discourse, however, we should note that humanitarian reason is situated within, and involves the negotiation of the tension between, two distinct justificatory poles:

1) a commitment to the view that humanitarianism means acknowledging that the suffering of each and every person matters in and of itself,

2) a commitment to the view that humanitarianism means aiming at the reduction of overall suffering.

This enables two distinct forms of humanitarian justification of externalisation policies.

Justification 1: Realistic versus Naïve Humanitarianism

This justification takes advantage of an existing tension within humanitarianism. This arises with the recognition that a form of humanitarian government focused on addressing the distinct suffering of each and every life as mattering equally may generate outcomes that are, in terms of overall suffering, bad. One way of negotiating this tension is to construct a distinction between ‘naïve’ and ‘realistic’ modes of humanitarianism, a mode of argument in which humanitarian practices oriented to the first pole can be represented as self-defeating. This takes the form of arguing that, for example, the operation of humanitarian search and rescue operations in the Mediterranean serves as a “pull” factor that increases the numbers of people who are willing to undertake the journey with all the suffering and risks of death that it involves, and hence is liable to increase overall suffering and deaths. This was an objection already raised in relation to the Italian Mare Nostrum policy of 2013-14 and following the withdrawal of state-based SAR activities has been extended to humanitarian NGO’s. Thus, for example, as Cusumano and Villa note:

As stated by the European Border and Coast Guard (still better known as Frontex), “SAR missions close to, or within, the 12-mile territorial waters of Libya … influence smugglers’ planning and act as a pull factor”. Such operations may “unintentionally help criminals achieve their objectives at minimum cost, strengthening their business model by increasing the chances of success. Migrants and refugees… attempt the dangerous crossing since they are aware of and rely on humanitarian assistance to reach the EU.”

The implication is that, in this context, the humanitarian conduct of SAR missions, while no doubt ethically admirable in its motivations, is ethically irresponsible.

Justification 2: Proper and Improper Asylum-Seekers

The second justification also takes advantage of this tension within humanitarianism. This one arises with the recognition that a form of humanitarian government directed solely towards the goal of reducing overall suffering fails to acknowledge the importance of the distinction between persons, that is, that the suffering of each individual matters. Hence, it is liable to produce outcomes that are, from the standpoint of the first pole, wrongful. One way of negotiating this tension is the construction of justifications for why some should be treated differently to others, that is, drawing a set of normative distinctions designed to distinguish those seeking irregular entry from the wider population of refugees and offering a moral justification of differential treatment in the service of reducing overall suffering.

An early example of this practice is the Australian introduction of the term ‘queue-jumper’ to describe those arriving by boat. The context here is that Australia operates an annual refugee resettlement quota (which was over 21,000 in 2016-17 but down to under 14,000 in 2020-21). Given its geographical distance from refugee producing states as well as its established visa regime, it has historically also been reasonably well isolated from the issue of ‘spontaneous arrivals’. Against this background, the Australian government was able, by presenting its contribution to refugee protection as fixed, to cast those asylum seekers aiming to arrive at its shores without humanitarian visas as cheating. They were attempting to queue jump rather than playing by the rules and, hence, seeking to steal the place of more worthy refugees who are more worthy just in virtue of their respect for fair play.

In the case of the UK, a primary argument has concerned the fact that travel to the British Isles involves passing through EU states, most obviously France from where irregular Channel crossings embark. Hence those seeking irregular entry could and should have already claimed asylum in these safe states. Here’s Boris Johnson again: “They have passed through manifestly safe countries, including many in Europe, where they could – and should – have claimed asylum.” Here, as Moreno-Lax’s reconstruction illustrated, the normative work being done here is the suggestion that those seeking irregular entry are deliberately exploiting the refugee protection system for reasons that are unrelated to humanitarian protection, rendering them akin to illegal economic migrants.

A Hierarchy of Refugees

In these two cases, then a key part of the strategy is to introduce a hierarchy into the field of refugee protection that distinguishes those who conduct themselves appropriately according to what are presented as the relevant norms and those who’s conduct breaches such norms. In neither case does this hierarchy simply deny that the latter are entitled to humanitarian protection. Instead, it exploits it as a reason for the denial of protection here by presenting ‘protection here’ as rewarding wrongful conduct and doing so in a way that is encouraging others to imitate it, where this increase the risks of outcomes that are bad from a humanitarian perspective.

The point about these humanitarian justifications is that, whether or not they are being deployed cynically, they are formally coherent justifications. They illustrate a compatibility between humanitarianism and border externalisation that should not, in the historical light of their mutual entanglement, surprise us. The conclusion that we should draw from this is, I think, that whatever moral comfort we derive from picturing the refugee in humanitarian terms, it is not a politically helpful way of envisaging refugee protection. We need to reclaim the political picture of the refuge as, first and foremost, a subject of rights, a member of global political society who is owed as a matter of right, not charity, a form of protection that recognizes the centrality of membership to that end.