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

HRLR Online April 14, 2017
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E. Tendayi Achiume is an Assistant Professor of Law at the UCLA School of Law.

For any given refugee crisis, securing equitable and sustainable arrangements for refugee protection and assistance remains a fundamental problem. An instructive example is the ongoing and deliberate regional containment of most Syrian refugees to countries neighboring Syria. Four countries in the Middle East currently bear a disproportionate and unsustainable share of the responsibility and cost, hosting over 4.5 million Syrians. Yet, many wealthy European Union (“EU”) states are working tirelessly to keep Syrian refugees out of their territories, despite the capacity of this relatively large and objectively well-resourced regional community to host far more than the 1.2 million Syrian refugees currently seeking protection there. Elsewhere, the Kenyan government is threatening to close the world’s largest refugee camp, in part due to the disproportionate share of the responsibility of assisting refugees it currently bears.

Despite these and other examples, the existing international refugee regime provides no widely accepted legal obligation for third states to assist refugee hosting states with the cost and responsibility of hosting refugees. This is the case notwithstanding the scale or causes of the refugee crisis. The current international response to massive contemporary refugee crises is untenable, and addressing this problem calls for, among other things, international legal and policy innovation.

As such, the concern motivating Joseph Blocher and Mitu Gulati’s (“the authors”) proposal in Competing for Refugees is urgent and their engagement timely. I will argue in this Essay, however, that the authors’ market-based proposal (“the Proposal”) faces a formidable challenge to its feasibility in the form of xenophobia. Furthermore, I argue that even if this pragmatic concern is set aside, the world the Proposal would create would be deeply problematic on normative grounds.

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