Does a State’s Right to Control Borders Justify Harming Refugees?

2.1 Border Violence

The United Kingdom has funded barbed wire fences, concrete walls and the Compagnies Républicaines de Sécurité (CRS) riot police in the port of Calais in France to deter and prevent refugee arrivals, with numerous reported instances of violence and human rights abuses by the CRS against refugees (Human Rights Watch 2017, 2018a). The CRS have used extreme violence in forced evictions of camps involving beatings with batons, water cannon, tear gas and rubber bullets, including against children (see The Independent 2016). The CRS also roam the area and reportedly use pepper spray and tear gas in unprovoked attacks often whilst refugees are sleeping in makeshift shelters as well as confiscate and destroy personal property such as phones, documentation and medication (see also The Independent 2018).

In another example, Hungary has erected barbed wire and electrified fences at the border with Serbia. There have been violent pushbacks of refugees, with police reported to beat refugees for hours, causing life-changing injuries, and some then take ‘selfies’ with the injured persons. They are reported to confiscate warm clothing and douse refugees in water during freezing temperatures, increasing risk of hypothermia (see The Independent 2017; Human Rights Watch 2018a).

These cases are representative of a larger trend of ‘crackdowns’ on refugees with similar instances of violence and human rights abuses against refugees at Polish, Belarusian, Croatian, Slovenian, Greek and Italian borders, with children at particular risk of abuse (Amnesty International 2019; Save the Children International 2018).

2.2 Detention and Containment

In an agreement between EU member states and Libya, refugees crossing the Mediterranean Sea are intercepted and returned to indefinite and arbitrary detention in centres in Libya (Human Rights Watch 2019; 2018c). This has two primary effects. The first effect is detention. Refugees are detained in centres on the Libyan coast funded by EU states and the United Kingdom (Taylor 2018). Overcrowding and lack of sanitation in these centres has led to starvation, disease (in particular, tuberculosis) and death. Refugees including children face grievous human rights violations in and around the centres: being raped, beaten, tortured, abused, starved and traded as slaves (BBC News 2018; Human Rights Watch 2019), with documented footage depicting the torture of refugees being electrocuted (Channel 4 News 2019).

The second effect is containment. This arrangement blocks refugees from travelling from Libya to the EU, where they could otherwise have claimed asylum and found adequate safety. It thereby closes off the main migratory route from North Africa to Europe and resultantly contains refugees in harmful conditions in regions in North Africa where their basic subsistence and security needs are not met, and where they are subjected to extensive human rights violations (see UNHCR 2019).

2.3 Encampment and Containment

A 2016 EU-Turkey deal to stem refugee flows from Turkey to Greece also has two primary effects. The first is encampment: the forced enclosure of refugees into camps. Refugees who have made the dangerous sea-crossing to the Greek islands are encamped there without adequate supplies of food, shelter and medicine, and face extensive human rights violations, which has caused ‘immense suffering for asylum seekers’ (Human Rights Watch 2016). In certain camps ‘the sewage system is so overwhelmed, that raw sewage has been known to reach the mattresses where children sleep’ (International Rescue Committee 2018). There is also a significant threat of physical violence, with women and even children being subjected to sexual violence (Human Rights Watch 2018b). The mental toll caused by encampment is sufficiently significant that ‘many people have attempted to end their lives due to the extreme distress and emotional pain they experience’ (Human Rights Watch 2018b).

The second effect is containment as refugees are blocked from travelling to Greece from Turkey, and thus this main migratory route to safety in Europe is closed down. As a result, refugees are contained in regions nearer their countries of origin, in Turkey as well as in Jordan and Lebanon, where their security and subsistence needs are not met. In Turkey, refugees live in squalid camps and face destitution in urban areas without adequate human rights protection. They are denied the rights they are entitled to under the 1951 Refugee Convention and 80% live in severe poverty (Human Rights Watch 2016; UNHCR 2017, 55). In Jordan, there is a ‘rapid deterioration in living conditions’ with a significant number of refugees living in abject poverty (UNHCR 2017). And the UN Report on Conditions of Syrian Refugees in Lebanon revealed over 70% live under the Lebanese extreme poverty line, with a significant rise in food insecurity where ‘each day represents a monumental struggle to meet the most basic needs of food, water and healthcare’ (see UN News 2015).

These practices of border violence, detention, encampment and containment result in significant mental and physical suffering and extensive human rights violations, and constitute instances of doing harm to refugees (Hillier-Smith 2020).^[6] Let us now assess whether current harmful practices such as these can be justified by Wellman’s account of a state’s right to control borders.

3.1 Wellman’s Conditions for Excluding Refugees

Wellman seeks to further justify the exclusion of refugees by arguing that duties towards them can instead be discharged through ‘exporting justice’: ‘one can intervene, militarily if necessary, in an unjust political environment to ensure that those currently vulnerable to the state are made safe in their homelands’ (2008, 129), or create a ‘safe haven’ through establishing ‘no-fly zones’ to protect citizens from persecutory regimes (2014, 121). Thus, for Wellman:

Affluent societies have a duty to help [refugees] but it is a disjunctive duty … the presence of those desperately seeking political asylum renders those of us in just political communities duty bound either to grant asylum or to ensure that these refugees no longer need fear their domestic regimes. (2008, 129)

On this view, states are permitted to exclude refugees if and only if they are exporting justice. Can this account, with its conception of duties to refugees and conditions for exclusion, justify current harmful practices?

First, Wellman’s means of exporting justice fail to respond appropriately to the nonideal circumstances and needs of contemporary refugees and appear to conflate refugees with internally displaced persons (IDPs). Refugees, by definition, have fled their states of origin, so Wellman’s means of exporting justice through military intervention in those states will do little to meet the acute needs of those displaced outside, residing in squalid camps or facing destitution in urban areas in the Global South, or risking their lives on perilous journeys to seek safety in the Global North.^[7] Such refugees qua refugees have distinctive needs in the form of, at a minimum, human rights protection, protection for Refugee Convention rights and adequate subsistence outside their state of origin.^[8] Wellman’s means of exporting justice are thus more suited to IDPs. Even still, such military intervention is highly controversial, carries substantial risk and is uncertain (at best) to help such persons or restore the stability necessary for refugees to return. And, as Parekh (2016) warns, Wellman’s proposals ‘would either be impossible or mean committing ourselves to permanent and global warfare’ (63).

Wellman’s proposals for exporting justice are thus inadequate. An obvious objection could then be pressed: on Wellman’s account, states must help refugees either by exporting justice or by accepting them into their political communities. Wellman’s means of exporting justice are inadequate and do not help refugees. Therefore, states must accept refugees into their political communities.^[9] Since states must accept refugees, a fortiori states may not harm those refugees to prevent them arriving.

To avoid this objection, Wellman’s account must be strengthened to include adequate means of ‘exporting justice’ that meet the acute needs of refugees. Some theorists have suggested that ‘open’ and democratically run camps, which provide security and subsistence, a dignified existence, and autonomy through free movement and a right to work, are a viable means of addressing (or at least mitigating) harms of displacement (Parekh 2016, 2). Other proposals include supported local integration programmes or economic and development projects in host states near refugees’ states of origin which again protect human rights, autonomy, means of subsistence and Refugee Convention rights (Betts and Collier 2017; Centre for Global Development 2019). And Wellman (in a separate article) himself suggests that states might incentivise and financially support another state to accept and adequately protect refugees (2014, 122). Though it is debatable that such measures fully address the harms of displacement, let us grant these as viable means of exporting justice.

Even accordingly amended, this account will fail to justify current practices. States can only refuse entrance on this account if they instead fulfil their then compulsory obligations to provide sustained funding for open camps, local integration programmes, economic projects and means for other states to protect refugees. Each of which, to meet the acute needs of refugees, must (at least) provide security and subsistence, an autonomous and dignified existence, and adequately protect their human rights and Refugee Convention rights. Already then, what is being envisioned would represent a radical departure from the status quo and a fundamental reform of current practices in favour of alternatives that would greatly improve the lives, wellbeing and human rights protection of thousands (potentially millions) of refugees. Furthermore, it is only once states are ‘exporting justice’ in the above way that such states are then permitted to refuse entrance. Therefore, when applied, it is unclear whether this account can justify even refusing entrance to refugees (much less harming them) since very few states (if any) are fulfilling their obligations to export justice in this way (In addition, and as I demonstrate in Section 6, Wellman’s account cannot endorse proposals for exporting justice that unilaterally contain or relocate refugees against their will since such proposals violate refugees’ rights to freedom of association).

Consequently, Wellman’s account as it stands, with its disjunctive duty to admit or export justice, cannot justify current harmful practices. However, let us bracket this consideration and suppose that states have a right to freedom of association, which is not contingent on performing duties to export justice, and may exclude refugees. Let us analyse then if (Wellman’s account of) a right to freedom of association can itself justify current harmful practices.

4.1 Necessity

According to the necessity constraint, it is permissible to harm in order to preserve freedom of association if and only if causing that harm is a necessary means to preserve freedom of association.

One violates this constraint if one causes harm when there are alternatives available that would also achieve one’s aims that would not cause harm (or would cause less harm).^[11] For example, if Canada could prevent the US annexation either through a short diplomatic negotiation, or through a missile strike on a US military target that would foreseeably kill some innocent civilians, it would clearly be impermissible to cause these unnecessary deaths.

The necessity constraint explains, in part, the permissibility of harm in Harassment and Annexation. The victim of Harassment, we can suppose, had no available alternatives to protect her free association (suppose the harasser ignored legal restraining orders) and so inflicting the harm was necessary for the harasser to desist. So too in Annexation, we can suppose the US president was impervious to reason and the only means to repel the annexation would be to use military force and cause harm as a last resort.

In contrast, harming refugees through current practices is not necessary. As canvassed in Section 3.1, there are available means to support refugees in regions near their states of origin. One proposal is to invest in and fund infrastructure development and local integration programmes in host states’ communities and economies to provide for refugees’ security and subsistence needs as well as opportunities for an autonomous and dignified existence.^[12] Another is supporting adequately funded, open and democratically run camps that provide security and subsistence, as well as autonomy through free movement and a right to work (see Parekh 2016, 2). Another is the establishment of specialised economic zones that provide jobs, wages, skills development and autonomy for refugees (Betts and Collier 2017, 179–80). Though these measures arguably may not fully mitigate the harms of displacement, such measures can provide security and subsistence in regions close to refugees’ states of origin, and demonstrably disincentivise onward journeys to states in the Global North (see Betts and Collier 2017, 154–55, 206). Current harmful practices against refugees are therefore not necessary to preserve freedom of association, but are a policy choice among numerous (nonharmful) alternatives.

It may be objected that nonharmful alternatives would be (more) economically costly and avoidance of such costs justifies the use of cheaper but harmful current practices to preserve free association. In response, the costs of regional programmes are not obviously substantially greater than the costs of current practices. The building, funding and maintenance of the border infrastructure of barbed wire, walls and armed personnel, as well as of the network of detention centres and encampments, are costly. As are the financial incentives provided to states to contain refugees. The EU-Turkey deal itself saw the transfer of nine billion euros (Betts and Collier 2017, 92). By contrast, as an example, fulfilling the entire annual budget of the UNHCR (consistently unmet by donor states) to help provide regional programmes would cost 8.6 billion dollars (see UNHCR, n.d.). This is not a comprehensive empirical analysis; however, the cost disparity would plausibly not be significant. If states can fund practices that harm refugees, states can instead fund practices that help refugees, which would also preserve free association.

Furthermore, even if nonharmful alternatives are more costly, the avoidance of economic costs alone is not a sufficiently compelling moral consideration to justify current harms (or demonstrate them as necessary). Even granting that states have agent-relative permissions to prioritise their own interests and the interests of their own citizens over the equal (or even greater) interests of noncitizens, this priority cannot plausibly be absolute. To hold that avoiding economic costs justified current harmful practices would entail that the economic interests of a state and its citizens are sufficiently more morally important to be able to override the urgent interests of refugees to avoid the abuse, violence, torture, rape, disease, starvation and death (that result from current practices used against them). Such a priority-weighting of interests would discount refugees’ most fundamental interests and human rights to an implausible extreme, which would be inconsistent with recognising refugees as human beings with equal moral worth. Agent-relative permissions cannot plausibly extend to failing to respect the equal moral worth of persons in this way.^[13] For example, it is uncontroversial that a state may not permissibly aggress against other states or harm or violate the rights of foreign populations even if doing so was economically advantageous or necessary to avoid significant economic costs. This would be impermissible precisely because such an aggression, in subordinating those outsiders’ fundamental interests and human rights to economic considerations, would fail to respect the moral worth of those outsiders and would be a perverse distortion of agent-relative permissions. Thus, avoiding economic costs lacks the moral significance to justify harming or violating the rights of innocent others. Therefore, even if nonharmful alternatives cost more, avoiding this cost cannot justify harming and violating the rights of refugees.

Current harmful practices thus violate the necessity constraint, and this is no trivial point: the suffering and human rights violations that refugees endure as a result is needless and avoidable.

4.2 Proportionality

According to the proportionality constraint, it is permissible to harm in order to preserve freedom of association if and only if that harm is proportionate relative to the severity of the prospective imposition (and relative to the liability of the agents harmed).

Proportionality concerns comparing the severity of the harm caused to protect one’s freedom of association to the severity of the imposition on one’s freedom of association if one refrained from that harm.^[14] Thus, even if harm is necessary, it ought to be proportionate to the severity of the imposition, rather than excessive. To take an example, if the only means to prevent someone from pinching you is by killing them, then killing them would be clearly impermissible, precisely because that harm is grossly disproportionate (McMahan 2013, 6–7). Proportionality is also sensitive to the liability of the agents harmed (yet I will discuss this liability dimension within Section 4.3.).

This proportionality constraint explains, in part, the permissibility of harm in Harassment and Annexation. In Harassment, if the victim did not cause harm, then the potential incursion on her freedom of association would be substantial indeed: invading her personal space, constantly and intimately associating with her such that she is unable to continue her life uninhibited by this unwanted association. Therefore, kicking the harasser would be proportionate. So too in Annexation, where Canadian citizens, if annexed, would be completely subjected to the dominating, arbitrary will of a foreign state with no political self-determination whatsoever. This would be a total abolition of their freedom of association, where millions of citizens would have their rights to determine their political future comprehensively and indefinitely violated.^[15] A targeted military strike therefore (if necessary) could constitute a proportionate response.

By contrast, consider a variation on Wellman’s golf club case:

Harmful Golf Club: There is a persistent applicant to the golf club who will not take ‘no’ for an answer. The existing club members do not wish him to join. Perhaps if the group broke his arms he would be dissuaded.

This harm is intuitively impermissible. This judgement is explained by the fact that an additional member does not count as a sufficiently significant imposition, and the grievous harm caused to the applicant would be disproportionate relative to that imposition. In fact, it seems that if there is no other way to exclude him without breaking his arms, the group must begrudgingly accept him into their club.

In terms of imposition, accepting refugees into political communities in the Global North is closer to Harmful Golf Club than it is to Harassment or Annexation. In contrast to Harassment, individual citizens’ most intimate and personal associations would not be constantly infringed, and citizens could continue to live and self-determine their lives and freely choose with whom to associate, socialise, join groups or form relationships. An individual right to freedom of association plausibly does not include a right to determine who is allowed to live down the street from oneself, or who works in one’s office, or who one shares public transport with or who one passes in the street (if it did, then my right would (absurdly) be violated each time I board the tube, and an incalculable number of times every day). More plausibly, one’s right to freedom of association includes a right to choose with whom (not) to socialise, join groups or form relationships. It is not clear that the presence of refugees within a community would infringe one’s right or undermine one’s ability to do such things any more than the presence of any other group of persons in one’s community would do so. Thus, the inclusion of refugees would not represent a significant imposition on individual freedom of association. Moreover, in contrast to Annexation, nor would the inclusion of refuges entail that the state and its citizens were deprived of political free association or self-determination at the collective and state level. The citizens and state would not be subjected to the dominating arbitrary will of an external state with no self-determination over the direction of their political community. Rather, the state and its citizens would retain full abilities to freely (participatively) determine the policy and the future direction of the demos.

It may be objected that the inclusion of refugees would undermine political self-determination since new refugee arrivals could, through political participation, then have a say on the policy priorities of the state (see Wellman and Cole 2011, 39–40). In response, a certain number of additional votes from enfranchised refugees does not appear to be any substantial imposition on the free association or self-determination of the state and its electorate in precisely the same way that the enfranchisement of an equal number of a new generation coming of voting age is not taken to be any substantial imposition. Moreover, any putative impact can itself be mitigated as it is contingent on domestic policies regarding refugees’ political participation rights (in most states for instance, refugees are presently denied voting rights).^[16] Thus, the inclusion of refugees represents a nonsubstantial imposition on free association at the individual level (in contrast to Harassment) and a nonsubstantial (and contingent) imposition at the collective state level (in contrast to Annexation).

Compare this nonsubstantial potential imposition to the harms that many thousands of refugees currently endure as a result of border violence, detention, encampment and containment, which include immense physical and mental suffering, violations of their human rights (against torture, rape, sexual violence, exploitation and enslavement) and death. No further argument is necessary to demonstrate that these practices cause a substantially greater amount of harm compared to refugees’ potential imposition. These practices thus cause (grossly) disproportionate harm to refugees.

4.3 Moral Responsibility

According to the final and crucial constraint, the moral responsibility constraint, harm is permissible to preserve freedom of association if and only if that harm is proportionate relative to the moral responsibility of the agent(s) harmed for the imposition.

This constraint draws upon the plausible view that liability to harm is grounded in moral responsibility for posing an unjust threat (Frowe 2014, 73; McMahan 2009, 158). Agents who are morally responsible for posing an unjust threat are thereby liable to harm (or in other words have forfeited their rights not to be harmed). Agents who are not morally responsible for posing an unjust threat are morally innocent, have not forfeited their rights and are thus not liable to harm. The permissibility of defensive harm is sensitive to liability: harming persons who are morally responsible for posing an unjust threat (who are thereby liable to harm) may be permissible where harming nonresponsible or innocent persons (who are thereby nonliable) may not be. More precisely, the amount of harm it is permissible to inflict on liable persons is much greater than the amount of harm it is permissible to inflict on nonliable innocent persons. (I consider this more precise formulation later.)

Frowe’s (2014) framework is useful in explaining moral responsibility further (72–76). On this framework, an agent (A) is morally responsible for posing a threat to a victim (V) if A intentionally failed to avail herself of a reasonable opportunity to avoid posing this threat to V. A intentionally failed to avail herself of such a reasonable opportunity if

1. V has a right not to suffer the harm,

2. A believes that a given course of action will endanger V,

3. A believes that she has alternative courses of action available to her that are not unreasonably costly to her or other innocent people and that will not endanger V (or will not endanger V to the same degree), and

4. A chooses not to take any of those alternative courses of action (Frowe 2014, 73).

In short, A is morally responsible for the threat if she intentionally failed to take an alternative course of action to avoid posing that threat, and that action was not unreasonably costly to her. To determine whether an alternative to posing the threat is unreasonably costly for A or not, we compare the cost to A of taking the alternative and the severity of the prospective harm to V if she fails to take the alternative and consider whether we can reasonably expect A to bear those costs to avoid posing that threat to V. For our purposes then, an agent will be morally responsible for an imposition on freedom of association if that agent had reasonable alternatives to avoid posing the imposition that were not unreasonably costly to that agent, and the agent intentionally failed to take those alternatives. Only those agents who are morally responsible for imposing on freedom of association in the above way are liable to be harmed.

So understood, the moral responsibility constraint explains, in part, the permissibility of harm in Harassment and Annexation. In Harassment, the harasser had reasonable and costless alternatives to avoid posing the threat but chose to neglect them and threaten the victim instead. The harasser is, therefore, morally responsible for posing an unjust threat to the victim and, in so doing, is liable to harm, which renders the defensive harm proportionate and permissible. So too in Annexation, the US aggressor had reasonable and costless alternatives to simply avoid posing this threat yet opted to pose the threat instead. The US aggressor is, therefore, morally responsible for posing this unjust threat, and, in so doing, is liable to be harmed, which renders the defensive harm proportionate and permissible.

However, it strikes us as far less permissible to harm an agent who would impose on one’s free association but is not morally responsible for that imposition. Compare:

Solitude is bliss (enemy): You wish to live a life of solitude in a cave and don’t wish to associate with anyone. However, your enemy knows how much it would distress you to associate with others and so, of their own free choice, seeks to enter your cave to disrupt your solitude.

Solitude is bliss (innocent): You wish to live a life of solitude in a cave and don’t wish to associate with anyone. However, someone is forced to seek refuge in your cave to escape a threat to her life and disrupts your solitude.

Though it arguably may be permissible to harm the enemy to protect your freedom of association (say, by throwing stones at them to cause some physical injury), it is clearly impermissible to harm the innocent person. This is explained by the difference in moral responsibility and liability. The enemy had reasonable alternatives to not impose but culpably chose to disrupt your solitude and is therefore morally responsible for an unjust imposition and is thus liable to harm. By contrast, the innocent person faced life-threatening circumstances and, through no fault of her own, had no reasonable alternative but to seek refuge and is thus not morally responsible for the imposition and is not liable to harm.

So too with refugees, who (unlike the harasser or US aggressor) are not morally responsible for any supposed imposition. Contemporary nonideal circumstances of refugee movements are such that, once displaced from extensive human rights violations in their own state, most refugees in the Global South effectively face either a life of further extensive human rights violations in squalid refugee camps or face destitution, exploitation and further human rights violations in urban areas. Neither of these possibilities provide adequate security or subsistence (Parekh 2016, 2020; UNHCR 2017, 2022) Given the relative lack of safe and legal routes for refugees to access asylum and the lack of active resettlement by Northern states^[17] together with the diminished possibility of repatriation owing to long term instability in states of origin (see UNHCR 2017, 2022), the only de facto available means through which refugees might escape extensive human rights violations and unmet subsistence needs is to seek adequate safety in Northern states. Consequently, though refugees arguably may impose, the alternative for those refugees to avoid this imposition is unreasonably costly—having their human rights extensively violated and enduring a lack of subsistence—which is a cost beyond what one could reasonably expect a person to bear. Therefore, refugees do not intentionally fail to avail themselves of a reasonable opportunity to avoid infringing the state’s free association quite simply because there is no reasonable opportunity. Refugees are therefore not morally responsible for the imposition. Refugees, as innocent persons, are not liable to be harmed and thus harming such refugees to preserve free association is impermissible.

It may be objected that it is not always impermissible to harm nonmorally responsible or nonliable persons. While narrow proportionality concerns the harm that is proportionate to inflict on liable agents, wide proportionality concerns the harm that is proportionate to inflict on nonliable agents (see McMahan 2020). Though the amount of defensive harm it is permissible to inflict on liable persons within narrow proportionality is much greater than the amount of defensive harm it is permissible to inflict on nonliable persons within wide proportionality, it may nonetheless be widely proportionate and permissible to harm a nonliable person if necessary to prevent a substantially greater harm to other nonliable persons. Therefore, it may be argued, even though refugees are not liable, harming them through current practices might be permissible within wide proportionality.

It is demonstrably clear, however, that current harmful practices will fail to be widely proportionate, since such practices do not prevent any substantially greater harm to other nonliable persons. Indeed, Section 4.2 demonstrated that current harms to refugees were disproportionate relative to their potential nonsubstantial imposition even on the implicit assumption that refugees were morally responsible for that imposition and were thus liable to some defensive harm. Current harms to refugees are disproportionate in the narrow sense (against liable persons) let alone in the wide sense (against innocent persons). Therefore, this consideration of wide proportionality, far from justifying current practices, reveals that (since refugees are innocent and not liable to harm) current practices inflict an even greater amount of disproportionate harm and are thus an even more egregious violation of the proportionality constraint than suggested in Section 4.2.

Another possible way to justify harm to nonresponsible persons could be drawn from Frowe’s (2014) analysis of how innocent lethal threats have an enforceable duty to bear certain costs in virtue of the fact that they threaten harm (67–70). For Frowe, the permissibility of defensively killing innocent threats is based on the fact that killing the threat inflicts less morally weighted harm, calculated as the harm of death minus the costs the threat has an enforceable duty to bear, than the victim of the threat would incur if she did not kill the innocent lethal threat (the nondiscounted harm of death).

Applying Frowe’s analysis to our context would nonetheless still entail that current practices are impermissible. This is because, assuming Frowe is correct, though refugees may have an enforceable duty not to impose, harming in self-defense through current practices inflicts a far greater amount of morally weighted harm (which far outstrips the costs refugees have an enforceable duty to bear), than would obtain as a result of the imposition.

Thus, the moral responsibility constraint prohibits harming refugees through current practices since refugees, as innocent persons seeking safety, are not morally responsible for an(y) unjust threat and as such are not liable to harm. And this conclusion is not undermined by considerations of wide proportionality, nor enforceable duties to bear harm.

4.4 Violating the Constraints on Permissible Harm

A right to freedom of association does not extend to an unconditional permission to harm in order to preserve one’s association. Rather, the necessity, proportionality and moral responsibility constraints entail that it is permissible to harm in order to preserve freedom of association if and only if (1) the harm is necessary; (2) the harm is proportionate relative to the severity of the imposition; and (3) the harm is proportionate relative to the moral responsibility of the agent(s) harmed. Current harmful practices against refugees are not necessary to preserve freedom of association; the harms caused are disproportionate; and refugees are not morally responsible for the imposition. Therefore, current practices used against refugees today cause unnecessary and disproportionate harm to innocent persons. For this reason, they cannot be justified by a state’s right to freedom of association.

5.1 A Right to Freedom of Association

To demonstrate the value of a right to freedom of association as an essential component of self-determination, Wellman envisages a nightmarish dystopia where a state agency arbitrarily decides for us whom and for how long we will form (romantic and sexual) associations with. Such forced associations would entail our lives would not be self-determined, as substantial parts of our life scripts would be instead ‘written’ for us by the agency. Wellman rightly suggests that we would be ‘aghast at this imaginary society’ (Wellman and Cole 2011, 29–31).

As Wellman acknowledges, all persons possess this important right to freedom of association. It follows obviously that refugees have a right to freedom of association, essential to their self-determination. Now, recall that, as part of current practices, refugees are forced into detention centres where they face being beaten, raped, tortured and traded as slaves by others and enclosed in camps where refugees—including women and children—face sexual violence and harassment. Parekh’s (2016) analysis has shown how encampment engenders a sense of captivity and pervasive sexual violence: ‘domestic violence, sexual exploitation, and various kinds of sexual torture occur at extremely high rates’ (34). The pervasiveness of sexual violence is due in part to the structure of the camps themselves: as enclosed spaces that deny free movement, it becomes very difficult for women and children to find safety from sexual violence (36). The practice of containment, illustratively labelled ‘caging’ by some theorists, similarly functions to actively confine refugees in certain regions and conditions (in camps and urban areas) in the Global South where their human rights are systematically violated by others, and to prevent their escape from such conditions to access safety in the Global North (FitzGerald 2019, 6–7, 263–64).

In addition to the immense suffering caused to refugees, we must also note the violation of their right to freedom of association. If I force you into a place where you do not wish to be and to associate with others whom you do not wish to, this is a paradigmatic violation of your freedom of association. Detention, encampment and containment force refugees against their will to associate in places where they would not have wished to be (in detention centres, encampments and areas of containment) and to associate with persons they did not wish to. Moreover, this violation of freedom of association resultantly devastates self-determination. Rather than determining for themselves, refugees are denied any say as states arbitrarily determine for them where and with whom they will associate, what their associations and future prospects will be, and thus unilaterally ‘write’ substantial parts of refugees’ life scripts against their will. It is not necessary to use our imagination to envisage Wellman’s nightmarish dystopia, it is a reality for many refugees today.

Moreover, the most egregious and repugnant violation of freedom of association is being forced into an unwanted sexual association. This is the most pernicious imposition on one’s most personal and intimate association. Therefore, for the refugees forced into sexual slavery, violence and exploitation owing to their being detained, encamped and contained, this is an egregious violation of their right to freedom of association. States, in forcing refugees into enclosed conditions where their free movement to escape from threats is denied, thereby force them into close proximity and interaction with persons whom they do not wish to associate with and force them into risk of sexual attack. Forcing someone into an unwanted association with a person who poses a threat of sexual assault is a violation of their right to freedom of association, and perhaps the most abhorrent conceivable.

Thus, current harmful practices constitute a serious violation of refugees’ rights to freedom of association (and resultant self-determination). Therefore, any appeal to a right to freedom of association (as an essential component of self-determination), far from justifying current practices against refugees, will more plausibly prohibit them.

5.2 Relational Egalitarianism

Wellman’s account also endorses relational egalitarianism—the view that egalitarian justice requires removing oppressive unequal relations between persons—and Wellman acknowledges that ‘achieving relational equality is [arguably] important enough to trump other values like freedom of association’ (2008, 122). Since refugees exist within social relations with states through current practices, questions of relational egalitarianism are applicable (Sharp 2022).^[18] To see how, consider that the specific aims of relational equality, as advanced by Anderson (1999) and endorsed by Wellman, are ‘negatively … to abolish oppression—that is, forms of social relationship by which some people dominate, exploit, marginalize, demean, and inflict violence upon others’ (313). In light of these aims, consider the features of current practices.

Domination: Refugees, in having (relatively) no political power whilst displaced or effective recourse to any authority, cannot but be subjected to the arbitrary will of states that detain, encamp or contain them. Their will—for example, their wish to seek safety, or have their human rights protected, or to rebuild their lives, or simply to not be detained, encamped or contained—is ignored and overruled. Instead, refugees are subjected to the will of others who arbitrarily control them, their movements and ultimately their life prospects.

Exploitation: Parekh (2016) has analysed how Northern states benefit from harmful practices that contain refugees away from their territories since those states then avoid costs of accommodating such refugees (115). If Parekh’s analysis is correct, then current practices may constitute exploitation insofar as states benefit from harming refugees. Moreover, these practices force refugees into conditions in which they can easily be exploited by others: traffickers, criminal groups, police or border officials.

Marginalization: As Parekh’s (2016) analysis has also highlighted (90–99), such practices marginalize and exclude refugees from participation in society, a community and what Hannah Arendt termed ‘mankind as a whole’. Refugees are cast as unwanted and undesirable elements, enclosed or pushed away from society to the margins of an adequate human existence.

Degradation: Current practices reduce refugees to live below acceptable standards for a dignified human existence. Consider the disease-ridden detention centres or encampment amongst raw sewage. Furthermore, refugees being detained, encamped and contained in these ways—treated as undesirable or as mere pests to be kept away—is not consistent with their being treated with respect as human beings with (equal) moral worth. Aside from the degrading conditions refugees are made to endure, this treatment of them is itself degrading.

Violence: Such practices involve the direct infliction of violence either at borders or through forced apprehension, incarceration, coercion as part of detention, encampment and containment. And violence and human rights violations are endemic within detention centres, camps and areas of containment.

From this brief analysis then, current practices are plausibly paradigm examples of unequal relations which instantiate domination, exploitation, marginalization, degradation and violence. These are the precise criteria for an unjustified inequality on the relational view. Wellman’s account, therefore, with its commitment to the importance of relational equality and its potential to outweigh the moral importance of freedom of association, far for justifying these practices, more plausibly rules them out.

Against structurally similar arguments (for example, Wilcox 2014), Wellman suggests that duties to offset any relational inequality that results from states exercising their free association can be discharged through distribution of resources or reform of practices rather than in ‘the currency of open borders’ (Wellman 2014, 120; Wellman and Cole 2011, 66).

Applying Wellman’s potential response to our present context, distribution of resources alone to refugees who are detained, encamped or contained would manifestly fail to alleviate the relational inequality in the form of their domination by controlling states, or the exploitative nature of their treatment, or their marginalisation from political societies, or the degrading subjection as undesirable elements, or the violence they are subjected to. Instead, radical reform would be required to remove unequal relations of domination, exploitation, marginalisation, degradation and violence. This concession itself confirms my conclusions that (Wellman’s account of) a right to control borders cannot justify current practices, which must be reformed (if not abolished). Moreover, there is reason to doubt, though I cannot demonstrate this fully here, that any practice that similarly functioned to forcibly detain, encamp or contain refugees could adequately be reformed to remove unjustified relational inequalities (in particular of domination, exploitation, marginalisation and degradation), since such practices may necessarily function to dominate refugees through arbitrarily controlling them and their movements against their will, exploit refugees through benefitting from their exclusion, degradingly treat refugees as undesirable elements, and marginalise refugees from societies and adequate state protection. Any reform required to eliminate the unjustified relational inequality of current practices would thus plausibly take the form of abolition.

5.3 Conclusion of Wellman’s Account

Wellman’s account of a state’s right to control borders is unable to justify current harmful practices against refugees. A right to freedom of association cannot justify causing such unnecessary and disproportionate harm to innocent persons. Moreover, Wellman’s account, with its commitments to individuals’ rights to freedom of association and to relational egalitarianism, is in fact more likely to prohibit current practices. Therefore, since Wellman’s account (the most restrictive available) will fail to justify current practices, no normative justification of a state’s right to control borders will be able to do so. Thus, a state’s right to control borders cannot justify current harmful practices against refugees.