The Fact of Xenophobia and the Fiction of State Sovereignty: A Reply to Blocher and Gulati

Abstract

This Essay argues the shortcomings of a debt-based market solution to the problem of global refugee responsibility sharing, shortcomings that originate in the fact of widespread xenophobia, and the legal fiction of state sovereignty. In Competing for Refugees: A Market-Based Solution to a Humanitarian Crisis, Joseph Blocher and Mitu Gulati argue that global refugee admissions would be improved if refugee-receiving countries could enforce “refugee debt” against refugees’ countries of origin for each refugee admitted by the receiving countries. This Essay responds to that proposal, simultaneously addressing themes of general and significant importance in international refugee scholarship.

Fact and Fiction’s first contribution is to bring important nuance to the problem of refugee admissions that has implications for the success of refugee debt in solving the global refugee admission deficit. This nuance concerns who the priority targets of a proposal such as refugee debt ought to be in light of global displacement trends. I show why — if equity and sustainability concerns are taken into account — the priority targets of a proposal to increase refugee admissions are countries in the global north. Thereafter I argue that the problem of xenophobia — especially in the global north — makes it highly unlikely that the changes in rational incentives at the heart of refugee debt would result in a corresponding increase in refugee admissions. Identifying this efficacy concern is the second contribution of this essay.

The final contribution of Fact and Fiction it to challenge the normative appeal of the world that refugee debt would create. I show how the legal fiction of state sovereignty, which operates centrally in the refugee debt concept, interacts with the geopolitics of refugee displacement to generate counterproductive consequences. Holding refugees’ countries of nationality solely liable and culpable for refugee displacement ignores the reality that refugee displacement often implicates multiple sovereigns. This creates a complex accountability matrix within which liability and culpability cannot fall solely on the territorial sovereign. I argue that refugee debt risks reproduction of the very dynamic that compromises global refugee protection today: global south countries would continue disproportionately to bear the cost of global refugee protection, while hegemons in the north would escape liability for (and perhaps even profit from) their direct involvement in producing refugee displacement.

Keywords: International refugee law, International migration, International law, Discrimination, Third World Approaches to International Law, Xenophobia