#1251 Bradley Hillier-Smith: The Ethics of State Responses to Refugees

00:00 Ricardo Lopes: Hello everyone. Welcome to a new episode of The Dissenter. I'm your host, as always, Ricardo Lops, and today I'm joined by Dr. Bradley Hillier-Smith. He's an associate lecturer at the University of St. Andrews in the UK and today we're going to talk about his book, The Ethics of State Responses to Refugees. So Doctor Hillier Smith, welcome to the show. It's a big pleasure to everyone.

00:25 Bradley Hillier-Smith: Um, THANK you for having me. It's a pleasure to be here.

00:27 Ricardo Lopes: Uh, SO, let me ask you, uh, before we get into the actual content of your book. So what motivated you to write this book? I mean, is it because of the current, uh, political moment we're going through, or at least Some of our recent political history in terms of uh refugee crisis and dealing with the refugees politically? Is it because it's just a topic that you've been interested in or both or something else?

01:02 Bradley Hillier-Smith: Yeah, well, thank you. Well. I've always had, uh, an interest in migration ethics, um, but it was. My interest really uh developed uh in 2015, 2016, uh, when there was a so-called refugee crisis with significant numbers of refugees arriving in Europe and at the time, um. I was involved in a lot of charity work trying to support refugees and um. And that took me to Calais in France, uh, which is, well, for those of you who don't know, um. There was an informal refugee settlement in Calais in northern France, where refugees from different nationalities, Syria, Sudan, Afghanistan, and so forth, um. They would Stay in this informal settlement in Calais, uh, attempting to reach the UK to claim asylum. And I was a long term, uh, volunteer there, um, in aid distribution. And then, uh, there was a particular event that had a really profound impact on me, which was in, I think February 2016, the French authorities decided to clear, uh, a portion of the camp. And so I was there and I witnessed hundreds of riot police. Enter the camp, uh, rip refugees from their shelters, um, use violence, beating refugees with batons, uh, tear gas, water cannon, including against women and children. I saw one refugee attempt to commit suicide, um, to, uh, protest against his, his, his being arrested, um. And and and it was a horrendous experience, and in the aftermath of the event, uh, I think. Around 100 refugee children went missing. Um, NO one knew where they were, and so. I was profoundly shocked by what I had witnessed, um, in 21st century Western Europe, and it obviously struck me as this is a profoundly unethical, wrong response for states to adopt in response to, um, innocent refugees seeking safety. So if this is. An unethical response, so I wanted to know, well, what would an ethical response to refugees be, um. So that's what motivated me to do some research on this topic, try to understand what an ethical response would be. And so the book is, um, the culmination of that effort, that research, uh, where I seek to develop an understanding of the specific moral obligations that states have towards refugees and those obligations form the components of what an ethical response would be.

03:52 Ricardo Lopes: No, that it's a very interesting topic and, uh, I mean, one of the main reasons why I, uh, wanted to have you on the show was because I, I think not only it's a very, uh, I mean, it's something that people have been dealing with in recent years and even are dealing now, are dealing with now. Uh, AND, uh, also because it's a topic that, uh, to be very honest, I haven't explored before on the show, so I think it's very important to talk about it. Uh, I wanted to ask you, what is a refugee, and I mean, I, I, I imagine that you will give me the legal or political definition here, right? So I mean, I, and I think it's important to clarify for the audience what a refugee is because Uh, refugee has a different status than what we could consider a regular migrant, for example, not only in terms of international law, but also in terms of how the national law of each country works and deals with refugees. So what is the definition?

05:08 Bradley Hillier-Smith: Oh, good, um, well, you're exactly right. There is the official definition in international law. Um, WHICH is a refugee is a person who, owing to a well-founded fear of persecution for reasons of their race, their religion, their nationality, the membership of a particular social group, or their political opinion, is outside the country of their nationality and because of that fear of persecution is unwilling to avail themselves of the protection of that country. So that's the legal definition as set out in the 1951, um, Geneva Convention relating to the status of refugee. Now, of course, a number of philosophers have contested this definition as being arbitrarily narrow. One of the primary reasons why philosophers suggest this definition is arbitrarily narrow is it seems to have, uh, an undue focus on persecution in, in particular. So why is it only for reasons of persecution that we should understand our people as refugees? So this might not cover, for example, refugees who are displaced because of war or conflict or generalized violence or environmental degradation or catastrophe. People who are forced to flee their country in order to seek adequate safety elsewhere, but not necessarily because they've been persecuted on the basis of their identity, for example, right? So for example, um, Ukrainian refugees. Might not necessarily be persecuted by it per se. Rather, they're displaced as a result of war and conflict and severe threats to their lives, um, and they're certainly refugees, although they might not necessarily fit the, uh, conventional definition. So in practice, um. States will, uh, adhere to a a broader definition and that's what a lot of philosophers agree with. So, uh, in the book, I understand the refugee as a person who has been forcibly displaced, that is forced to flee their own state of origin. And is unable to return to it because of severe threats to their lives, their human rights or their basic needs, and their own state is unable or unwilling to adequately protect them from these threats. And that you're also right to say that. There is in the law, a distinction between uh refugees and migrants more broadly. So the key feature of, uh, a refugee that distinguishes them from migrants more broadly is the fact that they're forcibly displaced. They are forced to flee, right? And they're unable to return to their state of origin because of severe threats to them. So this might distinguish them from other migrants who may not be facing such severe threats, but who voluntarily migrate for other reasons, um, and may be able to return. Now, of course. Many philosophers have said that this is not necessarily a sharp or clean distinction. And for example, at the marginal cases, there will be a migrant who's, uh, leaving severe economic deprivation, uh, severe poverty, uh, in order to migrate to another state to significantly improve their material prospects and their quality of life. And that person's gonna have very strong claims to admission. um, BUT what I suggest in the book is that. It's appropriate to have a broad, albeit imperfect distinction, uh, without denying the claims to admission for certain migrants. It's important to have a broad distinction because refugees in being forcibly displaced and unable to return, uh, will face and will continue to face very significant harms and injustices in virtue of that particular circumstance. And also one reason I think it's important to maintain the imperfect distinction. Is because it allows us to avoid the debate on immigration more broadly, because many people will conflate the, uh, which is a very natural thing to do, the question of whether states have a right to control their borders and whether they have a right to control immigration with the question of obligations towards refugees. But these are distinct but related questions. One can believe states have a right to control their borders and immigration, yet still agree they have obligations. To protect refugees. So allowing that distinction means we can, we don't have to settle the debate on immigration. Rather, we can focus specifically on what obligations states have towards refugees, and I think that helps us move past sometimes often volatile and unproductive public debates about immigration.

09:55 Ricardo Lopes: No, yeah, I think it's very important to establish that distinction for us to or for people to avoid as much as possible conflating refugees with broader, broad migrants because, you know, nowadays the far right and the conservative right many times take advantage of people's ignorance because, I mean, to be very honest, I don't think that most people have a proper understanding of what a refugee is and the distinction between a refugee and a regular migrant, but then That contributes to the sort of anti-immigration narratives put forth by the far right and the conservative right where they sort of amalgamate refugees with regular migrants and, and then they point to refugees and say, oh why are they here we should control our borders. They have no right to. HERE that they call themselves refugees, but they are migrants, blah, blah, blah, you know, that sort of rhetoric and if when it comes to just regular migrants, uh, the way we, I mean, many people tend to deal with them and think about them nowadays is already inhumane. I mean, it becomes even more severe if we're talking about refugees, I guess.

11:22 Bradley Hillier-Smith: Um, INDEED, so I think. There's sometimes in, in, in the public discourse, um, the. Significant dangers, threats, harms and justice that refugees are fleeing and have faced is often lost, and I think focusing again on um. The actual situation of refugees, um, the experiences that they face trying to find safety, um, and the barriers they face in trying to access protection. And the stories that they have um. Uh, OFTEN very, uh, upsetting stories, um, and their voices, uh, just completely lost, um, in this debate, and I think it's really worthwhile paying close attention to that because this helps us understand, well, why in particular we have obligations towards refugees, we, I mean states in the global north, um. And what precisely those obligations are, so I think it's really important to maintain a close focus on that, yeah.

12:32 Ricardo Lopes: Mhm. Um, WHAT would you say uh characterizes contemporary refugee movements?

12:42 Bradley Hillier-Smith: Good. So, uh, I think according to the latest figures that are available, there's 42.5 million refugees, uh, worldwide, um, who have been. Forcibly displaced, forced to flee their own states, um, because of war, conflict, persecution, uh, widespread generalized violence and extensive human rights violations, um, to seek adequate safety elsewhere. Now. Having fled these threats, the vast majority of those refugees having fled their own states of origin, have not adequately found that safety. Rather, the vast majority of refugees. Will live in squalid refugee camps for prolonged periods of time, or they'll face destitution in urban areas, um, in low and middle-income countries nearer their states of origin. Um, AND in these conditions, refugees will also face, uh, severe poverty, extensive violence, human rights violations. A small minority, around 10%, um, embark on perilous journeys to try and reach the, uh, global North to try and claim asylum. And thousands will die on their way. And so this is. Obviously a very serious situation and in my view, there's two morally significant features of global refugee displacement which we need to focus on in order to understand obligations towards them. And one is that. States in the global north, by which I mean, uh, the affluent and stable liberal democracies, um, so, uh, European countries, the UK, Canada, the US, Australia, and so forth.

14:34 Ricardo Lopes: Japan

14:36 Bradley Hillier-Smith: indeed, yes, uh, so. One important feature of global refugee displacement is that these countries, these global north countries are not necessarily mere innocent bystanders overlooking these harms that are occurring to refugees, um, but rather they adopt a variety of policies and practices in response to those refugees trying to seek safety on their territories. Practices such as border violence, detention, uh, forced encampment. And forced containment, which I can go into more detail later on if you wish, um, which result in significant harms and human rights violations for refugees. And I think understanding that feature of global refugee displacement is really important to understanding states' negative obligations towards refugees, and I can explain what I mean by negative obligations later on if you wish. And then the second feature that I think is really important to understand. Um, IS that Refugees are in virtue of their displacement, um, subjected to human rights violations, both in the causes of their displacement and also whilst they're displaced. So they're continually subjected to. Extreme and extensive human rights violations, both in the cause of displacement while they're fleeing and also whilst they're displaced. And I think this is very significant to help us understand what states positive obligations are to, to assist them. Provide protection to them. So I think those two features of global refugee displacement, the practices that states use in response to refugees, and the fact that refugees endure significant human rights violations are really important to understanding the obligations that states have towards them.

16:22 Ricardo Lopes: Yes, we're going to certainly explore all of those points that you touched on later in our conversation, but I wanted to ask you before getting into more of the philosophy of surrounding this discussion, discussion about refugees. According to international law, for example, you mentioned there, uh, forced detention, forced encampment, uh, are those measures illegal according to international law or

16:54 Bradley Hillier-Smith: not? Not necessarily. So as. As we'll see potentially later as we go through, there's one core principle in international refugee law, uh, and that principle is the principle of non-refoulement, which means that if a refugee arrives on one state's territory. 1 may not. Uh, RETURN that refugee to any territory where their life, freedom, or human rights would be under threat. So if a refugee arrives on your territory, you may not return them. To a territory where they may be under threat. Now, that is the law. So if you foul a refugee, you are breaking international refugee law. Now, what a number of states do is they adopt a variety of policies and practices. To prevent or deter refugees from arriving. To try and avoid that principle being operative. And so, these practices of detention in third countries, encampment, and containing refugees away from one's territory are not necessarily under illegal under international law. Although some people may argue that they constitute various human rights abuses or crimes against humanity and so forth, um. They're not necessarily illegal under international refugee law, but we might think, and in fact, I do argue in the book that these practices are ethically equivalent to refoulement and ought also to be prohibited under international law.

18:32 Ricardo Lopes: Mhm. Uh, SO, I, I mean, in a broad way, I, I mean, give us an overview of the different kinds of takes that philosophers have on how states should deal with refugees and whether they should er er receive them or accept them or not.

18:54 Bradley Hillier-Smith: OK, good. So There's lots of different philosophical approaches to understanding obligations towards refugees. Um, SO the primary methodology by which political philosophers will engage with this question is, um, through what I can call a state-centric approach, which is a perfectly understandable and natural approach to take when seeking to understand this, this phenomenon. And the state-centric approach starts with a state as the primary site of normative analysis. So we start from the perspective of the state and then we ask questions such as, well, how many refugees should this state take in before it's taken in its fair share? What costs are, are relevant to the state when considering how it should, uh, whether it should take in refugees, um, how should the state interact with other states to share the responsibility of refugee protection and so on and so forth. And these are, of course, really important and vital questions to ask. But what I suggest is that, uh, myself and a number of other philosophers, uh, adopt instead, uh, a refugee-centered methodology where instead we just focus on the situation of refugees themselves, um, to see. Um, THE situation that they're facing, and then we theorize from there as the primary site of normative analysis. And so then from that starting point, you start asking, uh, different questions, but equally important questions such as, well, what are the experiences and barriers that these refugees are facing when they're trying to seek protection? Uh, WHAT are the particular harms and injustices that these refugees are subjected to whilst they're displaced, um. What would be required for those harms and injustices to be alleviated and so forth. So from this, uh, methodology, you, you raised these, uh, equally important questions which I think are as essential to understanding state's obligations towards refugees. Now, um, the dominant philosophical approach is an example of the state-centric methodology, and it's called the duty of rescue approach to understanding obligations to refugees. Now, this approach, you know, has this state-centered methodology and it holds that states in the global North are mere innocent bystanders overlooking the harms that refugees are facing. And these states have duties to rescue refugees from this situation, either through resettlement, granting asylum, providing humanitarian assistance. At least if they're able to do so at little cost to themselves. Now, I think this is an appropriate foundation for understanding obligations towards refugees, but there's certain problems with it. And one of the problems is that many philosophers adhere to this approach, but nonetheless have wildly disagree about what it entails. So some philosophers think that the duty of rescue means we need to completely open all state borders. And continue to admit refugees until the point of societal collapse. Whereas other philosophers adopting the duty of rescue. Argue we we're not necessarily obligated to admit a single refugee. Some philosophers suggest the appropriate response is, uh, expansive resettlement schemes. Some philosophers suggest that military intervention in refugee states of origin is the appropriate response. So despite agreement on this duty of rescue principle, there's significant disagreement between philosophers about, well, what are the weight and the specification of the obligations towards refugees. And so what I tried to do in the book then is we take the refugee center methodology, we focus closely on the situation of refugees. To try and provide more clarity on this question. And if we take this refugee centered methodology. It reveals at least two limitations of the duty of rescue approach. Now, the first limitation is that it doesn't pay enough attention to those policies and practices that states use in response to refugees, for example, border violence, detention, encampment, and containment, which may make us question whether they really are playing the role of the innocent bystander as the duty of rescue approach presumes, but rather, they might be, um. Directly harming refugees, and I think that's important for understanding states' negative duties. And the other thing, the other limitation of the duty of rescue approach is this widespread disagreement on the specification and weight of, uh, duties to protect refugees. And again, if we focus closely on the situation of refugees. Uh, WHICH will reveal that they, uh, endure significant human rights violations in virtue of their displacement. And understanding this fact helps us understand the precise nature, weight, and specification of obligations towards them such that we can break through that impasse and arrive at an accurate understanding of obligations towards them.

24:03 Ricardo Lopes: Uh, WHEN it comes to, uh, an, uh, an, an approach like the one you mentioned, the duty to rescue approach which starts from a standpoint or assumes a starting position where countries, particularly from the global north, are just innocent bystanders. I mean, uh, uh, do you think that because we're talking about ethics here, do you think that, uh, arguments put forward Particularly by people that fall more on the left of the political spectrum. I mean, socialists, for example, um, where when it comes to refugees and even, for example, I, I don't want to mix different categories of migrants here, but even sometimes when it comes to economic migrants, uh, they say, oh yeah, but we, we can't really start from the This sort of innocent bystander position because we have an entire history of colonization, for example, that has consequences and effects even nowadays in terms of how the political system is structured that facilitates oppression and exploitation and also in a more direct way how countries from the global north still Through a form of what sometimes is called neo-colonization, economic colonization, exploit people from the global south. And also in an even more direct way, I would argue when, for example, uh, countries from the global north, uh, particularly Western Europe and the United States participate or initiate even wars, for example, in the Middle East, in Northeastern Africa, and so on. I mean they are contributing to a refugee crisis if we want to use that kind of uh term. Uh uh SO I, I mean, do you think that Those things and uh I mean, I don't know if you want to comment on whether they are all valid arguments or not, but do you think that we should also take into account all of those things when it comes to evaluating the ethics and particularly the duties that countries from the global north should have toward refugees from global south countries?

26:36 Bradley Hillier-Smith: I see. So yes, I am sympathetic to that argument. It's not an argument I personally make in, in the book because there's a number of philosophers who've made that argument very, very powerfully. Um, uh, SO for example, James Suter has developed this argument. Thoroughly, and I recommend his work on this issue. So yes, you might think that states in the global North are not innocent bystanders with reference to refugee displacement, either because they are directly involved in the conflicts that cause displacement, so invading other states, for example. So, um, we can all think of conflicts in which that would be the case, um, but also it may be the case that they are involved in, um. Selling arms to particular regimes or particular factions in the civil war, or maybe simply in virtue of, um, being the main participants and architects in a global economic system, uh, which foreseeably results in certain conflicts and, and so forth. And then also perhaps the legacies of colonialism, um, which have, um, drawn arbitrary lines on maps which cause conflicts and also resource extraction, which results in sort of resource depletion, which can then lead to conflicts and so forth. So insofar as that may be true, um. Then these states will have particularly strong obligations to those refugees whom they've caused to be displaced, and that, that, that would be true, but, um. I'm skeptical of grounding obligations to all refugees on this basis because it may be the case, for example, that not all refugee crises are the result of the acts of states in the global north, right? And we would still want to say we have obligations to protect those refugees, even if we're not necessarily responsible for their plight. Um, SO for example, um. The Ukrainian displacement is not necessarily the result of the actions of states in the global north, but we still would have obligations to protect Ukrainian refugees, I would assume. And so. I think this is a really important, um, tool to understanding obligations towards refugees. It's certainly a factor that can ground obligations to refugees, but I would resist grounding obligations to all refugees on this basis because some injustices are not necessarily the, the product of. States and global. So what I, when I say that states in the global north may not be the innocent bystanders as according to the duty of rescue approach, I mean something slightly different, which is not that they are responsible for the harms that refugees have endured in the causes of their displacement, but rather they're responsible for the harms that refugees endure whilst they're displaced. So whilst refugees have. Fled their states, states in the global north will adopt certain practices like border violence, putting refugees in detention centers, forcing them into camps, containing them in certain regions where they face severe threats to their human rights. Now these are, I argue in the book, harmful towards, uh, refugees, and in that sense, states and global health are not innocent bystanders vis a vis the harms that refugees experience whilst they're displaced.

29:54 Ricardo Lopes: Right. Uh, I would, uh, like to ask you, why do you think it's important to establish in this particular context the distinction between negative duties and positive duties?

30:07 Bradley Hillier-Smith: OK, good, so. You're right that I've um. Draw a distinction between negative and positive duties, um, which I'll explain the terminology. So moral obligations can be divided into, uh, negative and positive obligations or negative and positive duties. I use duties and obligations interchangeably. Now, negative duties or obligations are an agent's duties not to harm or violate the rights of others. So, for example, we all have negative duties not to subject people to torture, not to put people in conditions where torture will occur to them. These are negative duties not to harm or violate the rights of others. Now negative duties are taken to be particularly strong duties, perhaps the most fundamental moral duties that we all have. Our duty is not to harm others. Now positive duties. Or obligations are duties to perform an act that would benefit or otherwise assist, uh, another person. So for example, you may have a positive duty to save someone from being tortured if you could simply warn them, for example, right? And it would be morally wrong to let them be tortured if you could save them at a little cost to yourself. Now, Negative duties are primarily understood to be particularly strong duties and stronger than one's, uh, positive duties. That's not to say that one's positive duties are weak, but that all else being equal, one has a stronger negative duty not to subject someone to harm, uh, compared to one's positive duty to save them from comparable harm. And so these duties are grounded in what I call basic normative commitments, that is. They are endorsed by all plausible normative ethical theories. They're endorsed by the ethical tenets of all, um, ethical religious doctrines, and they're widely accepted in common morality across, uh, an overlapping consensus of reasonable comprehensive doctrines, so. Nearly everyone agrees that we have these obligations, these moral obligations. And so I'm trying to draw on these core common moral commitments, um, to understand states' negative and positive duties towards refugees. Now, I think this is important, this distinction, because most of the philosophical literature has focused only on the positive duties to protect refugees. What positive obligations the states have to perform an act to help refugees. And there hasn't been sufficient attention focused on the negative obligations of states not to harm or violate the rights of refugees. So I think an account of this has been missing in the philosophical literature and it's very, very important. And the distinction is also important because focusing on the positive duties we, as we saw earlier, there's a lot of disagreement about, well, what precisely are the positive obligations, right? And so, um. As I suggest in the book, we need to focus on the situation of refugees, and that's a way in which you can more properly understand the positive duties. And the thought is we need an account of both the negative and the positive duties, uh, of states towards refugees if we want a full account of state's obligations towards refugees.

33:34 Ricardo Lopes: So what kinds of state practices are used, or at least which are the more commonly used in response to refugees, and which of them do you think can be or should be classified as either doing or allowing harm? And I mean in this particular case of dealing with refugees, what counts as harm?

34:02 Bradley Hillier-Smith: OK, good. So So I appeal to the doctrine of doing and allowing harm, um. Which to explain is uh. The principle that It's morally worse and requires a higher level of justification to do harm rather than fail to aid and simply allow harm to someone. So this maps onto the distinction between negative and positive duties. One has stronger negative duties not to torture a person oneself compared to one's positive duties to save someone from torture, right? And so I employ this distinction which is widely accepted in common morality owing to the widely accepted robust moral constraint against harming people. Uh, I appealed to this. To draw attention to certain practices and try and classify them as doing or allowing harm. And if these practices are doing harm. Then states that employ them are not mere innocent bystanders disconnected from the harms refugees, but are actively harming innocent refugees looking for safety. And if that's true, then they will have urgent negative duties to refrain from unjustly harming those refugees and or rectify the harm caused. So a lot matters on whether these practices are in fact doing and allowing harm. So then I look at certain practices. In the book, uh, and classify them as either doing and allowing harm. Now some practices I look at include border violence. So for example, um, the UK has invested millions in supporting the CRS riot police in France who are reported to engage in violence against refugees, beaten with batons, often during evictions of camps. Also tactics of intimidation, harassment, confiscation of personal property, and so forth. And to take another example, on the Hungarian border with Serbia, there's been reports of violent pushbacks of refugees, refugees being beaten for hours on end, causing life changing injuries and so forth. And these are just two examples of a wider trend of violence, pushbacks, crackdowns of refugees at many European state borders, including Greece and Italy and so forth, as well as the US-Mexico border. Now border violence is straightforwardly doing harm to refugees, um. It causes them, um, to occupy a level of well-being that's far lower than it would have been in the nearest possible world in which they weren't subjected to these tactics of violence and so forth. So that's one practice. Uh, ANOTHER practice is detention. So, for example. Um, IN an arrangement between, um, Italy and other EU states on the one hand and Libya on the other hand, um. Refugees who are trying to make that crossing across the Mediterranean Sea from North Africa to Italy are intercepted and returned to be placed in detention centers on the Libyan coast as well as in the Libyan mainland, and in these detention centers, refugees face overcrowding, disease, starvation, as well as, um, human rights abuses from the Libyan authorities, including uh rape and sexual violence, torture, even being traded as slaves. Now of course, detention again is. A practice that harms these refugees, it causes them to be much worse off, uh, much worse off, sorry, in aspects of their well-being, their mental and physical health, their freedom, their human rights, than they would have been in the nearest possible world in which they were not placed in these detention centers. So that straightforwardly harms them. Another practice is, uh, sorry, uh, encampment. Um, SO for example, Uh, as part of the EU-Turkey deal, uh, initiated in 2016, uh, refugees who had made the crossing across the Aegean Sea from Turkey to Greece and arrived on those Greek islands, um, were forcibly enclosed into camps and denied onward movement to the Greek mainland and to, uh, the European mainland. And, um, they're made to stay in these camps and there was a lack of adequate sanitation and, um, subsistence support and also extensive human rights violations within these camp settings. Uh, MANY of them have since been closed and replaced with these controlled access centers which similarly deny refugees free movement and so forth, and there's all reports for, uh, concerning human rights abuses in these centers as well. So this similar detention is harmful to refugees, uh, insofar as it makes them much worse off than they would have been had they not been forced into these camps. Um, AND then the final practice that I consider, which is not exhaustive of all the practice, by the way, um, but, uh, one important practice to consider is the practice of containment. Now containment, um. Containment policies are exactly that, they are policies initiated by states that seek to contain refugees away from the state's territory. In regions closer to refugee states of origin. Um, BUT the direct result of these containment policies is that refugees are contained in certain regions. Where they face extreme poverty, uh, severe threats to their lives and freedoms, and extensive human rights violations. So, for example, that arrangement with Libya, um, blocks that migratory route to seek safety in, in, in Europe and. Thereby contains refugees in Libya and other regions in North Africa, where they face immense, uh, extensive human rights abuses and so forth. And that EU Turkey deal blocks that migratory route from Turkey to Greece and in doing so, contains refugees in regions closer to their states of origin in Turkey, Jordan and Lebanon where they face, um, severe harms, uh. Poverty, extreme human rights abuses, especially for those refugees right now, um, in Lebanon who, uh, are facing increased risks as a, as a result of the conflict there. And so these policies of containment. Um, THEY'RE quite difficult to classify. So I spent some time in the book trying to classify whether containment is doing or allowing harm to refugees. And I, and I can explain if you wish, my conclusion there.

40:47 Ricardo Lopes: No, yes, please, please do so. Yeah.

40:50 Bradley Hillier-Smith: OK, so what I suggest is that containment should be understood as what I call a denial of escape case. Now, a denial of escape case is where. There's a potentially harmful sequence of events that's threatening a person, but there's a pre-existing means for that person to simply escape that threat of harm, um. But what happens is then an agent acts to place an obstacle in the way, which prevents the victim from escaping the harm. Such that the victim is in fact harmed, um, by that sequence of events. So for example, if there was uh a person. Um, WHO was on some train tracks through no fault of their own, and there was a train coming towards them, but they could simply step aside and let the train go by so they could escape the threat of harm, but then you act to tie them to the tracks such that they cannot escape. Um, SUCH that they are then harmed, then. That's a denial of escape case, and I suggest denial of escape cases like that are, uh, doing harm. They count as doing harm. So, and I think containment is a denial of escape case. Refugees are in harm's way. They're facing human rights abuses, um, uh, severe threats to their lives and freedoms, extreme poverty and whatever, um, but fortunately, there's, uh, a pre-existing means of escape. They are. They can claim asylum and seek safety in northern states territories, as is their human right. By the way, Article 14 of the Universal Declaration of Human Rights, they have the right to seek and claim asylum. Mhm. Um, BUT then what these states do is they perform an act to introduce a containment policy, right, which blocks that means of escape. Such that they are no longer able to escape those harms, such that they then endure those harms. So it'd be the equivalent of, say, well, it wouldn't necessarily be the equivalent, but another denial of escape case would be, for example, um, blocking the fire exit to a burning building such that people cannot escape, and that I suggest constitutes doing harm. So I think if we understand containment. As a denial of escape case, which I think it is, then this yields the conclusion that it constitutes doing harm. So states that uh initiate containment policies are, are doing harm and then I think an interesting implication follows from this. Uh, SO at the top of the interview, we were talking about whether some of these practices like containment are illegal, and currently containment is not illegal under international refugee law. But, uh, refoulement is illegal under the international refugee law. So that is the practice of, so the principle of non-refoulement holds that if a refugee arrives in your territory. You may not return that refugee to any territory where their life, freedom, or human rights would be under threat. So that is a principle of international law, uh, it's widely adhered to, uh, among states, um. Now violating non-refoulement, that is um. Returning a refugee to a situation. In which harms may occur to them does not necessarily cause the harms or the harmful circumstances, but place refugees in those circumstances. So refoulement would be the equivalent of returning, um, so throwing an innocent child who had escaped onto your dry land back into a pond where they may drown. That's what refoulement would be. And it's widely agreed that this would be morally unthinkable and it's prohibited in international refugee law. But now consider containment, which uh concerns. Containing refugees away from one's territory in regions where they face severe threats to their lives, human rights and basic needs. Now this would be the equivalent of holding an innocent child at arm's length, uh, in a, in a pond where they may drown, uh, preventing them from swimming to safety onto one's dry land. So it's holding them at arm's length such that they will face this harm. Now what I suggest in the book is that there's no more difference between these acts. There's no moral difference between throwing an innocent child back into the pond where they may drown and holding an innocent child at arm's length in the pond where they may drown, preventing them from swimming to safety onto your dry land. And if refoulement is equivalent to throwing an innocent child, uh, back into the water where they may drown, and if containment is the equivalent to holding an innocent child in the water where they may drown, and if there's no moral difference between holding and throwing an innocent child into the water, then there's no moral difference between refinement and containment. So, containment ought to also be prohibited under international law, um, as an implication of. It being a denial of escape case and morally equivalent to refoulement. It's the same moral wrong being committed in both refoulement and containment, and so containment ought to also be prohibited under international law.

46:04 Ricardo Lopes: Are there circumstances where certain harms to refugees might be justified, and if so, on what grounds and which kinds of harms?

46:18 Bradley Hillier-Smith: OK, good. So, We can imagine there might be, so the first thing to say is harm to others is not always. Unjustified, always wrong, um. So harm might be permissible in self-defense, for example, or harm might be permissible as a lesser evil, uh, to prevent some greater harm or wrong. Mhm. So we can imagine some extreme circumstances in which it might be permissible to harm refugees in these ways. Um, SO perhaps, for example, to prevent some moral catastrophe to, uh, that would. Cause a greater amount of harm to a far greater amount of innocent people, so there might be some extreme circumstances. In which these harms, uh, might be justified. But what I suggest in the book is that. In nearly all foreseeable and likely circumstances, current practices that harm refugees. Are not justified and are not going to be justifiable, um. And the way I show this is, well, we might think, well, one natural potential justification for these practices would be, look, um, states have a right to control their borders. Um, THIS is recognized in international law, states have a right to control their borders. And so states are permitted to adopt certain practices, uh, to prevent and deter refugee arrivals, even if those practices are harmful. Um, BUT what I argue in the book is that the justifications, the philosophical justifications for a right to control borders are not gonna be sufficient to justify these harms against refugees. And so. For example, a. States are held to have a right to self-determination to determine their own internal affairs, uh, which includes a right to control their borders, admissions onto their territory, and, uh, entrance into the political community. Now, this right is grounded on numerous philosophical grounds or has been argued to be justified on numerous philosophical grounds. For example, states may have. Uh, IMPORTANT political, economic, or cultural interests, um, in determining who joins the political community. Uh, STATES and their citizens may have associative ownership claims over the state institutions and the public goods, and a state and its citizens have a right to freedom of association. Um, TO decide who, if anyone, it would like to join their association, and they have a right to exclude anyone that they don't wish to join their association. Now, what I say is that these justifications are not going to be able to justify current harmful practices against refugees. So, for example, take the political, cultural, and economic interests. First of all, It's not obviously the case that refugees would have a negative impact on a state's political, cultural, or economic interests. Refugees can and do provide a significant economic and cultural contribution to states, for example. But even if that's true, even if they, they would pose such a cost, um, even the defenders of that view make an exception for refugees, because refugees have particularly urgent claims to protection, to protect their, um, their lives, their human rights, their basic needs. And so Defend defenders of this justification of a right to control borders will make exceptions for refugees. So refugees should not even be denied entrance, let alone harmed, right? So it's not gonna work there. But the only philosophical justification that might be able to justify harmful practices towards refugees is this right to freedom of association because. If we think of like an individual case of freedom of association, you have a right to preserve your freedom of association from the unwanted association of others. So for example, if someone was trying to constantly harass you or follow you around, now you would be permitted to harm them. In order to preserve your freedom of association, so perhaps also then states and citizens of those states in order to maintain their free association and not to associate with people that don't want to may harm refugees in order to prevent them from associating. Now what I suggest is that, well, there are important moral constraints. On whether it's permissible to harm others in order to preserve one's freedom of association. So, these are, for example, uh, there's 3 constraints, the necessity constraint, the proportionality constraint, and the moral responsibility constraint. So the necessity constraint simply holds that, well, harm is permissible to preserve one's freedom of association. If and only if that harm is necessary to preserve one's freedom of association, it's the least harmful means one has available of preserving one's freedom of association. So in that harasser case, maybe inflicting some harm on them is necessary to preserve one's freedom of association. But that's not the case with states and refugees. Rather, there's numerous policy alternatives available to states aside from these particular harmful practices. So if the aim is to, for example, Prevent irregular journeys across dangerous journeys, then these harmful practices are not necessary or effective, uh, at dissuading these, uh, uh, dangerous journeys, but providing safe and regular routes would be effective at preventing these dangerous journeys. Whereas if the aim is simply to prevent refugee arrivals. Overall, then again, there's non-harmful alternatives. States could, uh, massively increase their foreign aid spending to provide the infrastructure and support in refugees, uh, so in regions near refugee states of origin, um, to provide adequate human rights protection, the infrastructure required so refugees are able to work, participate in the local economy, have education. These kind of, um, interventions demonstrably disincentivize onward journeys to states in the global North, so these harmful practices are not necessary. Um, NOW the proportionality constraint is that harm to preserve freedom of association is permissible, uh, if and only if that harm is proportionate. So that involves comparing the harm you're going to inflict to preserve one's freedom of association relative to the potential imposition, uh, one's seeking to avert. So in the harassment case, for example, inflicting some harm on the harasser seems permissible, um, because that's proportionate relative to the threat that they're posing you constantly trying to, uh, uh, associate with you, such that you're unable to continue your life uninhibited by this unwanted association. But when we consider The potential imposition of the inclusion of a given number of refugees within one's political community. Um, THERE doesn't seem to be a substantial individual imposition on everyone's everyday interactions. Your right to freedom of association does not include a right to decide who lives down the street from you, who you share a neighborhood with, who you share public transport with. So it's not a significant imposition on one's freedom of association any more so than the existence of any other human being within one's community would be an imposition on one's freedom of association. And it's not a significant imposition at the political level because states and their citizens retain rights to political self-determination, to participate in the political processes and so forth. So it's not a substantial imposition there either. And then if you compare that to the significant harms caused to tens if not hundreds of thousands of refugees, including immense mental and physical suffering, extensive human rights abuses, torture, sexual violence, kidnapping, and so forth, um, and also death, it seems these harms are grossly disproportionate. And then the final constraint is the moral responsibility constraint. In order to be permissible to harm in order to preserve one's freedom of association, that harm must be concentrated on persons who are morally responsible for posing an unjust threat to oneself. So what this means is that in order to be liable to harm, one must be morally responsible for posing an unjust threat. So that harasser. In the harassment case is morally responsible for posing an unjust act because they're acting wrongfully, they're acting culpably, um, they could have avoided posing that threat to you, but they chose to do it anyway. They've acted wrongfully, therefore they're liable to defensive harm, which makes it permissible to harm them, whereas refugees. Are not morally responsible for the imposition because they lack reasonable alternatives to avoid it. Because they're facing extensive harms and threats to their lives and human rights and basic needs and. Their only means of escaping these threats, in many cases, is to try and seek safety in another state, in the global north. And so they're innocent people. Um, AND so harming them is gonna violate this moral responsibility constraint. So through this analysis, we see that current harmful practices against refugees, um, cause unnecessary disproportionate harm to innocent people. And for that reason, they cannot be justified by a state's right to control their borders.

55:47 Ricardo Lopes: So another topic that you explore in your book has to do with direct and structural injustices. So what are direct and structural injustices, and could you give us an example of them?

56:03 Bradley Hillier-Smith: Good, um. So a direct injustice is quite straightforward. A direct injustice is an unjust outcome that's the direct result of and attributable to a specific act or a policy which was enacted by a relatively unconstrained actor who could have acted otherwise. So for example, um, if a legislator decides to deprive, uh, an ethnic minority of the right to vote. That's a direct injustice, right? It's an unjust outcome that's directly the result of a specific policy enacted by a specific actor who could have done otherwise, right? That's a direct injustice. Now a structural injustice, as I understand it, is an unjust outcome which is not the direct result of a specific individual's act. Uh, AND it's not the direct result of a specific state policy or a specific, um, institution's policy, but rather, it is the unintended consequence of, um, structural processes which are constituted by a multitude, sometimes thousands, sometimes millions of different agents who are each acting for their morally acceptable ends. So Iris Marion Young introduces this um concept of structural injustice and she uses this example of an individual facing homelessness in the US in where the fact that she's facing homelessness is an unjust outcome, but it's not necessarily the result of someone who specifically wronged her or violated her right or specific policy. Um, THAT'S been directed against her. Rather, it's the, it's the outcome of all these different processes, um, wage rates, rent increases, uh, legislation governing, so, um, where new housing will be built, um, public transport, accessibility, all these kind of processes, um, landlords seeking to increase profits, all these kind of different processes interact to create this unjust outcome. But no one could be necessarily blamed for this outcome. No one's necessarily acted wrongfully, but nonetheless, everyone who's connected to this, uh, unjust outcome has responsibilities to help address it. Now the reason why this is. Uh, RELEVANT to this debate on state practices towards refugees is that, um, There's a philosopher, Serena Perek, whose work on um. Obligations to refugees is a huge source of inspiration to me, it's brilliant, um. Uh, HER work, she understands the harms that refugees endure as a result of Northern state practices. She suggests that it's a structural injustice, right? Uh, I disagree with her. Uh, I agree that refugees face an injustice as a result of Northern state practices, um. But I just disagree that it's a structural injustice. Rather, I suggest that it's a direct injustice. And I suggest that this is, well, it's a direct injustice insofar as the harms that refugees face can be traced to specific policies. Enacted by particular states. Um, WHO I think are acting wrongfully, could have acted otherwise, and I worry that. If we adopt a structural. Um, INJUSTICE model of responsibility, it, it lets actors who've acted wrongfully off the hook, so to speak. It absolves them of moral responsibility for the unjust harms that they've caused, and instead it, um. It distributes responsibility very widely and it entails that state actors, for example, who are connected to the injustice only have a sort of weak remedial responsibility to help, uh, address the injustice. Whereas if we understand it as a direct injustice, uh, which I think is accurate. Uh, THEN we see that states who enact these harmful policies are acting wrongfully and have urgent, compulsory negative moral duties to refrain from these unjust policies and rectify the harms caused. So, I think it matters greatly whether, um, these are direct obstructural injustices, and I think there's good reason to think that they are, in fact, direct injustices against refugees.

1:00:28 Ricardo Lopes: So what are then the positive duties of states toward refugees?

1:00:36 Bradley Hillier-Smith: OK, so, So that was the first half of my book, as it were. So focusing on the negative duties of, uh, refugees, where I've argued that. Certain states in the global North are not innocent bystanders, um, they adopt practices that harm refugees. These practices are not justified, and this is a direct injustice. Um, SO this grounds strong negative duties of states to reform current practices. But what about, as you said, these, um, these positive duties. Uh, POSITIVE duties to provide a benefit or otherwise assist or protect refugees. I suggest again if we focus on the situation of refugees, um, this helps us to understand the nature, weight, and specification of positive duties towards them. So if we look at the situation of refugees. We see that, well, Most refugees come from um. Are fleeing severe human rights violations in their states of origin as a result of war, conflicts and persecution or whatever it might be. So this includes targeted bombing of civilian areas, um, Um, generalized violence, cruel and degrading treatment, torture, sexual and gender-based violence, ethnic cleansing, uh, forced disappearances, extrajudicial killings, um. And potential genocide. So these are the causes of refugee displacement. This is why refugees are fleeing their states of origin. Uh, AND that's true in, um, for example, the, the six states that produce the most refugees, um, Ukraine, Afghanistan, Syria, uh, Sudan, Venezuela, South Sudan. Uh, SO they're, they're facing human rights violations in their states of origin. That's why they've fled. And then once they've left their states of origin, again, they haven't necessarily found safety, but rather they'll either reside in refugee camps for prolonged periods of time. This is true for the vast majority of, of, of refugees. They'll either face a life in refugee camps for prolonged periods of time or a life in urban areas where they'll have a sub-citizen status. They won't be granted equality before the law, so they'll be subjected to. Additional human rights violations without protection or recourse to the, the law, or they'll risk their lives on dangerous journeys to try and reach the global North, in which case, again, they're vulnerable to significant human rights violations from traffickers, from border officials, and so forth. So refugees are also facing these human rights violations whilst they're displaced, either in camps. Or urban areas or um on journeys and this is important for understanding obligations towards them because. The violations that refugees are subjected to. In virtue of their displacement involve significant additional harms that I think are often not sufficiently recognized. So it's not merely the case that refugees are severely like physically suffering and have certain biological needs of food, water, shelter, and so forth, but additionally, they're facing these harms as a result of these violations which include a violation of their autonomy. Their control over their life has been completely disrupted, um. And they have very little opportunities to live their lives or rebuild their lives according to their own wishes. And they don't have much control over their own environment or their existence or, or anything like that. So this violation of autonomy is, is profound. They also endure a violation of, uh, a dignified existence, uh, of their dignity insofar as. They're often forced to endure conditions and treatment which are below acceptable standards for a dignified existence. Think of, um, squalid refugee camps, for example, or facing extreme destitution in urban areas without any sort of protection from the local authorities and so forth. They also endure a violation of their moral worth or, uh, you might describe this as a violation of their humanity insofar as they're not viewed and treated as equal human beings with equal moral worth, but rather, they're viewed and treated as less, as subhuman, as having inferior moral worth. And that would be true. In the violations they're subjected to, the people subjecting them to this treatment will be treating them as inferior, but also it's true, as we can see in various media representations, um, or representations by the political class and states in the global North that refugees aren't, um, recognized necessarily as equal human beings, but rather that they're viewed and treated as something less. So these, these harms are very significant, and I think they're, um. Relevant to understanding obligations towards them. Um And then there's also another important phenomenon that refugees endure whilst they're displaced. Um, WHICH is one that Hannah Arendt identified, and it's the phenomenon of rightlessness. Which entails that. Well, refugees may have human rights on paper, right, because all human beings have equal human rights, um, but they are subjected to abuses and violence regardless, as if they had no human rights whatsoever, right? So in this sense, they are rightless, uh, as Hannah Arendt identified, which I understand as. They lack the capabilities to enjoy the content of their human rights. So, though they may have a right against torture, for example, on paper. Uh, THEY lack the substantive right because they do not have the capabilities to enjoy that human right against torture because they can be subjected to that rights violation regardless. So, one way of trying to understand this phenomenon of rightlessness is like to imagine you're um like a citizen of the UK. And then you consider your rights, your human right against cruel and degrading treatment, for example. Now, you would probably barely even need to think about this right against cruel and degrading treatment because there's a, a vast infrastructure in place in the UK that protects your right. Uh, THERE'S, uh, enforcement mechanisms, there's, uh, laws, there's police, there's these, um. There's vast infrastructure in place as well as an economic system in place to facilitate this protection mechanism, such that you can go through your life never even worrying about your right against cruel and degrading treatment. But then suppose that the UK descends into a civil war, uh, the government collapses, there's extensive violence everywhere, and then you have to flee the UK and so you make it across the Channel on a small boat to France to try and claim asylum. Um, And you end up in a refugee camp with lots of other, um, British refugees. And then Imagine now your human right against cruel and degrading treatment if someone tries to threaten your right. Now that that infrastructure is not in place anymore. There's no one you can turn to, there's no British government who's going to try and protect your right. So if someone threatens your right, whether that be a border official, a trafficker or something like that. Your right very likely will be violated and in this sense, you don't really have the right against cruel and degrading treatment because you're going to be subjected to that abuse regardless and there's no one you can turn to. So, this is a phenomenon that refugees face, and I think that's also really important to understanding obligations towards them. And so, looking at this situation, the harms that refugees face as a result of the violations and their rightlessness means that positive duties towards them. Shouldn't merely be to alleviate any physical harms, but need to address this violation of autonomy by providing opportunities for refugees to have an autonomous existence, um, to rebuild their lives according to their own wishes. It needs to respond to the harm to dignity by providing opportunities for refugees to have a dignified existence away from the squalor of certain, uh, refugee camps, for example, that have a decent standard of living, um. It needs to respond to that harm to moral worth, so refugees need to be viewed and treated with respect as moral equals, um, and also, Um, conditions should be secured in which they're viewed and treated as moral equals by others, and there needs to be this human rights protection in order to, um, address the rightlessness that they experience. So I think that then is the proper understanding of positive duties towards them.

1:09:37 Ricardo Lopes: So I have one final question or topic I would like to explore here. So are there any circumstances or instances where the states can violate human rights in regards to how they treat refugees?

1:09:58 Bradley Hillier-Smith: Do you mean Are there any circumstances in which it would be permissible for states to violate human rights?

1:10:06 Ricardo Lopes: Yes, exactly, yeah.

1:10:07 Bradley Hillier-Smith: I mean this may relate to a question we spoke about earlier where. We might think that. Rights provide strong constraints against actions towards persons, um, but they might not necessarily be absolute constraints. We might think that there could be some extreme circumstances in which it might be permissible, um, to violate rights in order to prevent some moral catastrophes such as like the deaths of many millions of people or some such. But I think it's going to be very hard, if not impossible, to justify the violating of refugees' human rights that we currently see as a result of state practices because such violations, as I suggested earlier, are are not necessary, proportionate, um, and they're against innocent persons. And I think this. So I, I, in principle, yes, but I can't foresee any circumstance, um. In in the real world in, in, in which that would be permissible, no.

1:11:21 Ricardo Lopes: Mhm. No, that, that's fair enough. So, uh, the book is again, the ethics of state Responses to refugees, and I'm of course leaving a link to it in the description of the interview. And Doctor Hilliard Smith, uh, apart from the book, where can people find you and your work on the internet?

1:11:43 Bradley Hillier-Smith: Um, YEAH, I have a website, Bradley HilliersSmith.com, I think. Uh, SO you can find out about my research there, and, yeah.

1:11:52 Ricardo Lopes: OK, I will add that to the description of the interview and thank you so much for taking the time to come on the show. It's been great to talk with you.

1:12:00 Bradley Hillier-Smith: OK, thank you so much, it's been great to talk with you too.

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