Excerpted From: E. Tendayi Achiume, Empire, Borders, and Refugee Responsibility Sharing, 110 California Law Review 1011 (June, 2022) (101 Footnotes) (Full Document)

ETendayiAchiumeInternational lawyers have been preoccupied with refugee responsibility sharing for decades, and with good reason. They have invested energy both in critiquing the existing regime and developing proposals for alternatives. However, the corresponding literature has largely, though not entirely, neglected two related but distinct phenomena: imperial domination and imperial intervention. I argue that attention to imperial domination and imperial intervention, which I define shortly, should unsettle the very frame of responsibility sharing and even asylum for many who are coerced into migration.

Refugee responsibility-sharing scholars, for the most part, are concerned with persons who, due to serious violations of human rights--including severe forms of deprivation--cross international borders as a survival strategy. The nature of the international system is such that especially when large numbers of persons are forced to or make the decision to cross borders, their treatment and conditions after doing so expose them to further harm because of the acts and omissions of the nation-states territorially, ethically, legally, or otherwise implicated in the international displacement of these persons.

In the last decade, the displacement of Syrian refugees is a case in point. A decade of conflict in Syria has driven over 6.6 million people out of the country in search of refuge, including refugees from other conflicts that had settled in Syria. Most Syrian refugees have remained in countries neighboring Syria, but many, for complex reasons including difficult living conditions, have sought refuge further afield in North Africa, Europe, North America, and elsewhere. Reception of Syrian refugees has varied. Countries in the neighboring region have taken in the greatest numbers but have repeatedly expressed the need for support from the broader international community to protect Syrian refugees. Countries beyond the region, including the wealthiest countries, have with few exceptions failed to extend necessary protections to Syrian refugees. This is a typical dynamic. Countries in the Global South that are geographically proximate to the conflict and instability that result in large scale displacement tend to host the vast majority of refugees. This is striking when compared with the regular complicity of countries in the Global North in causing that displacement, and in the reluctance of these countries to take responsibility for that complicity.

The so-called Syrian Refugee Crisis generated a significant body of legal scholarship under the rubric of refugee responsibility sharing. Indeed, the responsibility-sharing--previously the burden-sharing--frame has been the umbrella under which legal scholars have articulated, theorized, and attempted to address concern for the way that nation-states collectively treat internationally displaced persons, including those who proactively cross borders as a survival strategy.

Although rarely made explicit in responsibility-sharing literature, much of this literature's analysis is heavily informed--and constrained--by the prevailing doctrine of sovereignty in international law. This is evident in the specific way that the majority of this literature constructs the problem, the corresponding solutions, and the means through which these solutions might be achieved. International lawyers focus on the consent-based regime of international refugee law--the U.N. Refugee Convention and its Protocol--and recent international human-rights-law-based non-refoulement obligations. They mostly agree that this global refugee regime does not include international legal obligations for non-refugee-hosting states to assist refugee-hosting states with the protection of refugees in the latter's territories. The problem then becomes one of how to get non-hosting states, which given the geopolitics of refugee displacement centrally include wealthy Global North countries, to share responsibility with hosting states voluntarily. Underlying this problem is, of course, the contemporary doctrine of state sovereignty, according to which international legal obligations derive from the consent of the respective nation-state, which enjoys independence from and equality with all others.

The ethical arguments for more expansive and equitable responsibility-sharing regimes are typically based on broadly cosmopolitan principles, and advance distributive justice claims often involving the relative capacity among nation-states. They implicitly or explicitly treat all nation-states as having equal ethical obligations to ensure the fundamental human rights of all human beings, irrespective of citizenship. And whereas refugee-protection responsibilities under the status quo are predominantly allocated based on proximity to conflict and displacement, the emphasis in the responsibility-sharing literature has been to argue the case for and means of requiring wealthy but typically remote states to share in the cost and responsibility of refugee protection. The responsibility-sharing literature has rarely, if at all, launched a concerted challenge against the legitimacy of the political and territorial borders that states rely upon to justify their treatment of refugees.

In the discussion that follows, I propose that there are theoretical as well as pragmatic benefits to be derived from a different approach to the refugee responsibility-sharing problem. This alternative approach challenges the validity of contemporary borders and the operation of sovereignty doctrine in international relations. I advocate greater attention to the operation of empire for identifying the respective duties and duty bearers where refugee responsibility is concerned. Specifically, I call attention to imperial domination, which I define as conditions of transnational political and economic interconnection that bind nation-states on unequal terms and are characterized by dominant hegemons that informally constrain the sovereignty of the subordinate nation-states bound to them. As I have argued elsewhere, nation-states interconnected in this way should be understood as cohesive, transnational political communities that give national borders a different meaning from that assigned to them under existing international law.

I also highlight a distinct though related dimension of empire: imperial intervention. This includes a range of interventions--military, political, and economic--that may not themselves forge bonds of ongoing imperial domination and duties that domination entails, but nonetheless generate duties to protect refugees that bear on what has traditionally been framed as a responsibility-sharing problem.

This empire-centric approach ultimately reframes refugee responsibility sharing--which is typically treated as a distributive justice problem--as a failure to fulfill sovereign obligations, as well as a failure of corrective justice. The approach also challenges the parameters of the institution of asylum, particularly the individualized persecution standard provided by the U.N. Refugee Convention, arguing that it does not exhaust the suite of obligations that imperial hegemons owe to those they displace through domination or intervention. My reframing builds on novel arguments I have made elsewhere regarding borders, sovereignty, and empire. This reframing also highlights arguments that other scholars have made foregrounding imperial intervention in accounts of responsibility sharing for refugee displacement.

Two caveats are necessary. The first is that I do not view empire-centric approaches to asylum and refugee responsibility sharing to be the exclusive approaches or solutions desirable for addressing international displacement. There are other normative ideals, such as commitments to human rights and human dignity, religious values of different kinds, and even distributive justice considerations, that can meaningfully be pursued alongside the approaches I prioritize in my account. Rather than seeking to displace all other approaches, my claim is that empire-centric approaches are necessary even if they are not sufficient to address responsibility for all refugee displacement, and that they offer some advantages over the status quo.

My second caveat is that the empire-centric approaches I propose are non-ideal. They attempt to shore up remedies and equality-enhancing responses to the conditions of imperial subordination, without making any claims to undoing directly the fundamental structures of imperial subordination. In other words, at best, my proposals are decolonial in orientation but not necessarily in effect. I cannot characterize them as a blueprint for undoing relations of imperial domination. That said, foregrounding an imperial account of asylum and responsibility sharing may contribute in some way towards generating politics and knowledge production more capable of delivering equitable interconnection across political communities.

This Article proceeds as follows. Part I introduces the concept of imperial domination and illustrates its implications for asylum and responsibility sharing. Part I does so by examining the United States' imperial domination of nations in Central America and the Middle East, arguing that this imperial domination generates powerful claims for admission and inclusion of persons displaced from these regions, claims that are otherwise unaccounted for under the status quo. Part II highlights existing literature that has productively engaged with empire in a different way, namely through arguments for asylum and other immigration measures as reparations for imperial intervention. Part III briefly describes potential processes for pursuing empire-centric approaches to asylum and refugee responsibility sharing. Part III also canvasses the pragmatic value of empire-centric approaches relative to the status quo.

[. . .]

As debates around asylum and refugee responsibility sharing rage on, different approaches to international displacement remain urgent. I have argued above that a lens highlighting the role of imperial hegemony in international displacement is one such urgent approach, considering the ethical obligations generated by this hegemony. Imperial domination invalidates the borders between imperial nations and the nations whose sovereignty they undermine and constrain. And imperial intervention--whether military, political, or economic--generates reparative obligations owed to those displaced by this intervention, as other scholars have argued. The status quo in the asylum and responsibility regimes and literature largely ignores the imperial dimensions of international displacement, and in doing so belies the nature and extent of the injustices of this status quo. Realizing empire-centric approaches to international displacement is admittedly a project of profound complexity. But it is a project towards which greater intellectual, creative, and political energy should be directed.

Alicia Miñana Professor of Law, UCLA School of Law.