Direct and structural injustice against refugees

IF 1.1 3区 哲学 Q3 ETHICS
Bradley Hillier-Smith
{"title":"Direct and structural injustice against refugees","authors":"Bradley Hillier-Smith","doi":"10.1111/josp.12486","DOIUrl":null,"url":null,"abstract":"<p>The dominant philosophical approach to understanding the moral duties that states in the Global North have toward the 26 million refugees worldwide is what we can call the <i>Duty of Rescue Approach</i>.<sup>1</sup> According to this approach, states in the Global North (hereafter Northern states) are mere innocent bystanders overlooking the humanitarian crisis of refugee displacement unfold, and these states have moral duties to rescue refugees from this situation, at least if such states are able to do so at little cost to themselves.<sup>2</sup></p><p>Serena Parekh's recent normative analysis (<span>2017</span>, <span>2020</span>) has sought to challenge this dominant approach. Parekh highlights certain Northern state policies and practices used in response to refugees while they are displaced and suggests that refugees endure extensive harms as result of such policies and practices, including the harms of containment and encampment, and their being prevented from accessing adequate refuge. These harms, Parekh argues, are an injustice. Thus, for Parekh, certain Northern states, far from being mere innocent bystanders, are responsible for injustice against refugees.</p><p>In this article, I fully endorse Parekh's claims that refugees endure certain harms as a result of Northern state practices, and that such harms constitute an injustice against refugees. Yet, I will explore how we ought to understand this injustice. I contest Parekh's claim that the harms refugees endure as a result of Northern state practices are, and ought to be understood as, a <i>structural injustice—</i>an unfortunate, unintended unjust outcome resulting from structural processes (call this Parekh's <i>Structural Injustice Approach</i>). Instead, I contend that these harms are, and ought to be understood as, a <i>direct injustice</i> against refugees<i>—</i>an unjust outcome directly resulting from specific and avoidable policies enacted by relatively unconstrained actors (call this the <i>Direct Injustice Approach)</i>. I argue that Parekh's Structural Injustice Approach fails to accurately capture the causal and normative relations between Northern state practices and the harms endured by refugees, and that this approach fails to provide any advancement on, and suffers from same the problems as, the standard Duty of Rescue Approach to which it is ostensibly an alternative. I instead advocate a Direct Injustice Approach to understanding the harms that refugees endure as a result of Northern states practices. If these harms are indeed a direct injustice, then responsible Northern states are certainly not mere innocent bystanders, and are not merely involved in structural processes that have an unintended unjust outcome (as on Parekh's Structural Injustice Approach), but are instead directly committing a grave injustice against innocent refugees and thus have urgent negative duties to refrain from unjustly harming the world's displaced.</p><p>Section 1 explains Parekh's arguments in more detail. Section 2 revisits Iris Marion Young's (<span>2010</span>) account of structural injustice (on which Parekh's arguments are based) to establish the necessary conditions of structural injustices. Section 3 casts doubt on whether the harms that refugees face due to Northern state practices can accurately be cast as a structural injustice according to the necessary conditions. Section 4 advances normative arguments against understanding these harms as a structural injustice, since such an understanding will (among other shortfalls) fail to provide any advancement on the Duty of Rescue Approach and will fail to ground (weighty) moral duties to address the injustice against refugees. Section 5 concludes.</p><p>Parekh (<span>2020</span>) criticizes the dominant Duty of Rescue Approach to understanding obligations to refugees on which “[Northern states] are often seen only as rescuers unconnected to the harms that refugees face once displaced.” On this “rescue frame” Northern states “have not done anything wrong. They have not caused refugees to come into harm's way, but are merely stepping in to help” (p. 18). This frame fails to capture the reality of “the harms experienced by refugees and the role that [Northern states] have played in this outcome” and “the harms that we [Northern states] have created” (pp. 19, 158). Parekh, across two books, draws attention to two particular harms that refugees endure as a result of Northern state practices: first the <i>containment and encampment of refugees</i>, and second the <i>inability of refugees to access refuge</i>.</p><p>In <i>Refugees and the Ethics of Forced Displacement</i> (2017), Parekh focuses on the <i>containment and encampment</i> of refugees. Northern states, through a variety of policies and practices, have sought to contain refugees in regions in the Global South away from Northern territories. In these regions, refugees are left to reside in refugee camps indefinitely, and Northern states financially and politically support housing refugees in such camps as their preferred response toward refugees (as opposed to resettling or granting asylum to large numbers of refugees; Parekh, 2017, pp. 37–9). The harms of such containment and encampment include “a sense of captivity as well as the denial of freedom, autonomy and basic human rights […] for prolonged periods of time” (p. 5). Refugees in camps are passively dependent on international aid, face anxiety-inducing uncertainty over future prospects, and lack the opportunities necessary for an adequately autonomous existence. Refugees endure such conditions for years, decades, and sometimes generations (p. 3).</p><p>Parekh further demonstrates how camps affect refugees' rights. “First refugee camps rarely uphold the rights that refugees are entitled to based on the [1951 Refugee Convention].” Second, “because refugees in camps are so vulnerable, basic human rights are routinely violated both by other refugees and by the state and NGOs, and refugees lack the ability to claim their rights or have violations redressed” (p. 31). Parekh draws upon empirical studies which find the full catalogue of human rights violations in certain camps and conclude that the very structure of camps<i>—</i>as enclosed spaces, beyond the rule of law, that deny free movement<i>—</i>entails that enclosing refugees in camps cannot be reconciled with respecting their human rights (Verdirame et al., <span>2005</span>). Parekh notes that among the most severe and pervasive violations in camps is sexual violence. “Domestic violence, sexual exploitation, and various kinds of sexual torture occur at extremely high rates.” This “is known to occur globally in all camp settings” (2017, p. 34).</p><p>In <i>No Refuge</i> (2020), Parekh focuses on the harm of refugees <i>being unable to access refuge</i>. Parekh understands <i>refuge</i> as “the minimum conditions of human dignity,” which consist of an adequate standard of living (including food, water, clothing, adequate housing, and medical care) as well as physical security against threats to basic human rights (pp. 11–3). Parekh notes that the vast majority of refugees (86%), once displaced from their states of origin, reside in regions in the Global South where they effectively face three options: spend prolonged periods of time without adequate autonomy or security in squalid refugee camps; live in destitution without formal assistance and face exploitation and human rights violations in urban areas; or risk their lives on dangerous journeys and endure extensive human rights abuses to reach adequate security and subsistence in Northern states. Each of these three options fails to provide the minimum conditions of human dignity, and thus the vast majority of the world's refugees are unable to access refuge (pp. 105–6).</p><p>For Parekh, this inability to access refuge is a harm that results from Northern state practices. Northern states, seeking to control their borders, have adopted a variety of policies and practices that serve to contain refugees away from Northern territories and prevent them accessing asylum. Parekh cites examples including pushbacks against refugees at European borders, child separation policies in the United States which deter refugees from seeking asylum, Australian interception at sea and returning refugees to off-shore detention centers in Nauru, the detention of refugees in camps and centers in Greece, an EU arrangement with Libya which detains refugees in centers on the Libyan coast and contains refugees in regions in North Africa, and the EU-Turkey Deal which blocks migratory routes and prevents refugees from arriving in Europe (<span>2016</span>, pp. 121–40). In addition, instead of providing adequate access to asylum, or resettling large numbers of refugees, Northern states have opted for providing and funding refugee camps in the Global South as their preferred response to refugees, which, as we saw above, entail a sense of captivity and extensive human rights violations (p. 105).</p><p>Due to these practices, refugees are precluded from effective access to asylum in Northern states, and are consigned to endure the squalid camps or destitution in urban areas in the Global South, or risk their lives on the now increasingly difficult and dangerous journeys to Northern states. Thus, as a result of Northern state practices, “we have created a situation in which the vast majority of refugees are effectively unable to get refuge in any meaningful sense; that is, they are not able to access the minimum conditions of human dignity” (p. 159).</p><p>For Parekh, the two above harms<i>—</i>the containment and encampment of refugees, and refugees' inability to find refuge<i>—</i>represent injustices against refugees. Thus, far from being innocent bystanders or mere potential rescuers, Northern states are responsible for injustices against refugees.</p><p>Though Young does not explicitly specify the necessary conditions, we can infer from her analysis that a structural injustice is: an unjust outcome that is (1) distinct from harms and wrongs that result from direct individual interaction; (2) distinct from harms and wrongs that are the direct result of actions and policies of states (or other institutions); and is instead (3) the unintended consequence of (4) structural processes constituted by (5) a multitude of uncoordinated agents and policies (6) adhering to morally acceptable ends.</p><p>I will now argue that the two harms<i>—</i>containment and encampment, and the inability to access refuge<i>—</i>which refugees endure as a result of Northern state practices are not structural injustices understood in the above way. My argument is comprised of two interconnected components. The first is a theoretical-conceptual claim: these harms do not fit the conceptual criteria of a structural injustice and are more accurately understood as direct injustices. The second is normative: a Structural Injustice Approach problematically distracts attention away from direct injustices that must be addressed, absolves state actors of wrongdoing, and entails a framework of weak responsibilities to address the injustice, which, in turn, provides no advancement on the standard Duty of Rescue Approach.</p><p>To pre-empt the implications of this discussion, if the harms that refugee endure as a result of Northern state practices are a structural injustice, then it is merely an unfortunate, unintended outcome, and no Northern state is blameworthy or acting wrongfully or causing direct harms to refugees, and these states will thereby have only weak, discretionary responsibilities to amend structural processes that cause the injustice. By contrast, if these harms are direct injustices, then certain Northern states have indeed acted wrongfully and <i>are</i> directly causing harms to refugees, and we are able to hold primary state actors and policies to appropriate account for the unjust harms caused, and such actors will have urgent and compulsory negative moral duties to refrain from causing this injustice against refugees. It matters greatly, therefore, whether these harms are indeed direct or structural injustices.</p><p>On my analysis, the unjust outcomes of the containment and encampment of refugees, and their prevention from accessing refuge, are not the unintended by-product of structural processes distinct from individual wrongdoing or unjust policies, but are instead the direct result of agents and specific, intentional and (importantly) avoidable policies. For example, consider the details of the 2017 EU arrangement with Libya and the 2016 EU-Turkey Deal.</p><p>In the EU arrangement with Libya, refugees are intercepted on the Mediterranean Sea and returned to indefinite detention in Libya (Human Rights Watch, <span>2018b</span>). This arrangement has two primary effects. First: <i>detention</i>: intercepted refugees are placed in detention centers on the Libyan coast, funded by EU states including the United Kingdom (D. Taylor, <span>2018</span>). Overcrowding and lack of sanitation in these centers has led to starvation, disease (in particular tuberculosis), and death. Refugees, including children, also face grievous maltreatment: being raped, beaten, abused, starved, and even traded as slaves (BBC News, <span>2018</span>; Human Rights Watch, <span>2019</span>). Documented footage depicts the torture of refugees being burned, maimed, and electrocuted.<sup>3</sup> The second effect is containment: this arrangement blocks refugees from traveling 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 so <i>contains</i> 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.<sup>4</sup></p><p>The 2016 EU-Turkey deal aims to stem refugee flows from Turkey to Greece and itself has two primary effects. The first is <i>encampment</i>: refugees who have crossed the Aegean Sea and arrived on the Greek islands are enclosed into camps without adequate supplies of food, shelter, and medicine and face extensive human rights violations; this has caused “immense suffering for asylum seekers” (Human Rights Watch, <span>2016</span>). In the Moria camp, “the sewage system is so overwhelmed, that raw sewage has been known to reach the mattresses where children sleep” (International Rescue Committee, <span>2018</span>).<sup>5</sup> There is also a significant threat of physical violence, with women and even children being subjected to sexual violence (Human Rights Watch, <span>2018a</span>). 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, <span>2018a</span>). The second effect of the deal is <i>containment</i> as refugees are blocked from traveling to Greece from Turkey and so 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, 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 and 80% of refugees live in severe poverty (Human Rights Watch, <span>2016</span>; UNHCR, <span>2016</span>, p. 55). In Jordan, there is a “rapid deterioration in living conditions” and a significant number of refugees live in abject poverty (UNHCR, <span>2017</span>). In Lebanon, 70% of refugees live under the extreme poverty line and “each day represents a monumental struggle to meet the most basic needs of food, water and healthcare.”<sup>6</sup></p><p>The arrangement with Libya and the EU-Turkey Deal directly result in the containment of refugees, prevent them from accessing adequate refuge, and consign refugees to endure a lack of adequate subsistence and security in camps and urban areas in the Global South. It seems immediately clear that such harmful outcomes cannot be accurately cast as a structural injustice. The containment policies above are precisely that: <i>policies</i>—devised and then deliberately enacted by states and institutions, with the express purpose of containing refugees. In these cases, the EU council, comprised of representatives from member states, devised, and implemented such policies with the intention of containing refugees and preventing them from arriving on European territories.<sup>7</sup></p><p>To add to these examples, the Australian government policy of interception and return of refugees either to Indonesia or to off-shore detention centers in Nauru or Manus Island under “Operation Sovereign Borders,” <i>is</i> an explicit policy (the latest in a successive trend of off-shoring policies) that forcibly and intentionally denies access to refuge, detains refugees in abusive conditions in centers, and contains refugees away from Australian territory in regions in the Global South where they endure a life in camps (BBC News, <span>2017</span>; “Operation Sovereign Borders (OSB),”). The US policy of detention and fast-track deportation of asylum seekers, as well as child separation practices, ‘Title 42’ expulsions and ‘Migrant Protections’ turn-back protocols, are again policies intended to deter and prevent refugees from accessing refuge in the United States, and contain those refugees in Central and South America. This forms part of a larger trend of successive deterrence policies enacted by the US against refugees.<sup>8</sup></p><p>Considering these examples, it becomes clear that the containment of refugees and their prevention from accessing refuge is not an unintended, unfortunate, by-product of structural processes, but instead the direct harmful and unjust outcome of explicit and intentional policies specifically designed and enacted by Northern state actors.<sup>9</sup> Therefore, the resulting harms cannot be understood as structural injustices, but are more accurately understood as direct injustices against refugees.</p><p>I now present the second component of my argument: the normative case against the Structural Injustice Approach. On a structural injustice model of responsibility, no one agent or policy or set of policies is directly responsible for causing the injustice, no agent has acted wrongfully, and no policy is itself necessarily unjust, and no agent should be blamed for their contribution to the injustice. Instead, the injustice has resulted from structural processes beyond any individual agent's control or policy contribution. Yet, all agents whose morally permissible actions nonetheless contribute in whatever small way to constituting and reconstituting the structural processes that cause the injustice share responsibility for fixing that injustice (Young, <span>2010</span>, pp. 100–10). Using this model, Parekh (2017) suggests that responsibility for fixing the structural injustice of containment and encampment, for example, is shared among all those states (and citizens of those states) whose legitimate pursuits of state sovereignty and border controls are nonetheless constituting and reconstituting structural processes that serve to contain and encamp refugees for prolonged periods of time (pp. 122–5).</p><p>I argue that this Structural Injustice Approach distracts attention away from directly unjust laws and practices that ought to be the focus for reform, absolves primary actors of (appropriate) moral responsibility and accountability for unjust harms caused, results in an unfair distribution of responsibilities, and entails a problematically weak framework of responsibilities to address the harms against refugees.</p><p>First, casting the harms that refugees endure as structural entails that it is difficult to arrive at tangible and actionable objectives when attempting to amend structural processes. How should all those individuals, whose non-wrongful, small-scale actions contribute to structural processes, recognize which and how their actions do so, and then proceed to change them? As Christian Neuhäuser (<span>2014</span>) argues, on the structural model there is no principled means of distributing responsibilities and actions among contributing actors such that “it remains unclear who has to do what” (p. 242). More pressingly, how should Northern states that (on the structural model) are not committing any wrongdoing or adopting unjust policies or directly causing the unjust situation change their ways? There may of course be answers to such questions, but they are not obvious, nor obviously likely to bring substantial change.</p><p>For example, promising frameworks of duties and responsibilities have been established by scholars in response to the objection that a structural model of responsibility fails to ground actionable imperatives. Elizabeth Khan (<span>2019</span>) argues that individuals are unable to unilaterally address structural injustices, yet they have a precautionary duty to take action to prevent or mitigate their contributions to ongoing and future structural injustices, which can be discharged through creating and maintaining suitable collectives that are able and willing to address the structural injustice (pp. 41–3). However, applied to the context of understanding state practices against refugees as a structural injustice, this proposal would presumably suggest that individual states are unable to unilaterally address the injustice, but ought to form collectives to address it. This proposal does not obviously yield specific and actional public policy proposals nor clear imperatives or objectives for reform. Robin Zheng (<span>2018</span>) argues that we can fulfill our responsibilities through the performance of our social roles in different ways according <i>a role ideal</i>, which (if done in accordance with others) can help bring about structural change (e.g., teachers can perform their roles in ways that diversify their syllabi to correct for systemic underrepresentation of minorities) (pp. 9–11). Applied to the context of understanding state practices against refugees as a structural injustice, presumably Zheng's proposal would entail that Northern state actors perform their roles in ways that would help mitigate or address structural injustices. This sounds promising. However, as Zheng acknowledges, performing an ideal social role is indeterminate in content and open to each agent's individual conception of the good and what an ideal social role would be (p. 17). As a result, this understanding does not specify which role-performances, policies, or actions would be mandated for Northern state actors, nor establish incentives or parameters for state actors to perform those roles in ways different to how they currently (wish to) perform them. Moreover, since on a structural injustice approach, no state is acting wrongfully, nor are their laws or policies necessarily unjust or directly causing the injustice, there is little grounds here to determine which actions to take or that amending laws or policies are the required actions, nor is there strong moral imperative for reform (a point I shall return to below). Thus, the Structural Injustice Approach, even with both Khan and Zheng's proposals, does not appear to ground actionable reform in the context of state practices toward refugees.</p><p>If instead we recognize specific policies that contain and encamp refugees, and deny their access to refuge as directly harmful and unjust, then this provides a clear and actionable objective for change: to amend or reject those policies. For example, states could end the practice of intercepting and returning refugees to abusive detention centers in Libya. The forced encampment of refugees on the Greek islands can be prohibited and the encamped refugees resettled. The containment policies with Libya and Turkey can be identified as harmful and unjust and their reform, to provide safe and legal routes to safety, can be called for. Moreover, current policies that contain refugees in regions where their lives, liberty, and human rights are under threat can be prohibited under International Law as morally equivalent to the (currently prohibited) refoulement of refugees to regions where their lives, liberty, and human rights are under threat, as I have recently argued elswhere (Hillier-Smith <span>2020</span>). These are actionable imperatives that will demonstrably improve the wellbeing of refugees if and when such policies are properly recognized as direct injustices and reformed. Thus, a structural model risks problematically distracting attention away from these imperatives to the detriment of urgent reform. In fact, one could press the point further and suggest that to be inattentive to these urgent reforms through mis-focusing on structural processes and unclear individual structural responsibilities objectionably fails those refugees whose wellbeing and human rights could be more adequately protected if such harmful practices were identified as directly unjust and prohibited.</p><p>Defenders of a Structural Injustice Approach may object and suggest that on their approach, one <i>can</i> point to certain policies and practices (such as those above) that are contributing to the structural processes as appropriate subjects for reform. However, in response, it is unclear why, on a structural model, such policies and practices <i>ought</i> to be subject to reform. After all, none of the policies or practices are themselves unjust but are instead adhering to morally acceptable ends; as Parekh (<span>2020</span>) writes: “structural injustice arises from the actions and policies of thousands of individuals acting according to morally acceptable rules and norms,” and such actions may be “morally neutral or even positive” (pp. 163, 169). Furthermore, on the structural model, none of these actions, policies, or practices are the (direct) cause of the injustice, which is instead the result of structural processes beyond the control and scope of specific actions, policies, and practices. It is hard then to see why, on a structural model, there is an(y) imperative to reform these morally just policies and practices that make little if any difference to the injustice.<sup>14</sup></p><p>Second, the Structural Injustice Approach absolves primary state actors of moral responsibility and accountability for unjust harms caused to refugees and thereby “lets them off the hook.” For instance, having detailed numerous practices that Northern state actors have introduced to deny refugees access to Northern territories, including the incarceration of refugees in detention centers in Libya, and the subsequent torture, sexual violence and slavery that refugees face (2020, p. 7), Parekh suggests, that for the harm of refugees being locked out of refuge, “we [Northern states] are responsible not because we have done something wrong [or] something that we should feel guilty about” and that on the structural model of responsibility “we should not blame each other or call each other guilty for [the injustice]” (2020, pp. 170, 171).</p><p>This above conception of Northern states' responsibility risks positing that (groups of) states adopting policies such as the EU arrangement with Libya, or the EU encampment and containment of refugees, or the Australian policy of interception and return—which contain and deny refuge and result in significant physical and mental suffering and human rights violations to innocents—are not doing anything wrong or directly harming refugees, but are simply permissibly pursuing their own legitimate interests and ought not to be blamed. This conception objectionably fails to hold these primary state actors and unjust policies sufficiently to account, undeservedly absolves such actors of any wrongdoing, and fails to capture the gravity of their moral responsibility for the significant harms and human rights violations caused to innocent refugees.</p><p>Further, on the structural model, responsibility is distributed away from these primary actors, and instead dispersed among many thousands of persons (e.g., any and all citizens of Northern states) whose small-scale contributions have been negligible and non-blameworthy. This unfairly burdens non-blameworthy actors with responsibilities to fix the injustice comparable to those of the primary actors that cause the injustice. This undiscerning distribution of responsibility is therefore unjustly disproportionate not only in absolving the blameworthy actors of proportionate responsibility, but also burdening non-blameworthy actors with disproportionate responsibility, resulting in the unfairness of distributive injustice. By contrast, on a direct injustice model of responsibilities, primary actors, and policies responsible for causing the injustice are held accurately and proportionately to account for the unjust harms caused to refugees, and these agents bear the primary duties to address the injustice.</p><p>It may be objected that a direct injustice model is backward-looking, whereas a structural model is forward-looking. While on a direct injustice model, the aim is to trace causal and moral responsibility, assign blame and accountability, and “to demand punishment or compensation”; on the forward-looking structural model, the focus is on addressing the unjust outcome itself and “on how to make things more just in the future” (Parekh, <span>2020</span>, p. 164). Parekh takes it as an advantage of the structural model that the aim is not to single out particular actors or policies for blame, but to more appropriately focus on the unjust outcome and identify ways that we can work collectively to address it (2020, pp. 162, 170). It may also be objected that assigning blame on a direct injustice model will be counter-productive as one simply produces defensiveness, blame-switching, and resentment on the part of the accused (Young, <span>2010</span>, pp. 114–7).</p><p>In response, a direct injustice model does not preclude forward-looking reform nor addressing unjust circumstances. On the contrary, the aim of identifying certain harmful policies and practices as direct injustices and raising awareness of their unjust consequences is necessarily to seek their reform, and to instantiate more just policies and practices in their place. The aim of identifying persons (in particular state actors) as morally responsible for unjust outcomes is to hold them accountable and as subjects of normative criticism and public moral opprobrium, which in turn aims to incentivize conformity to certain norms and disincentivise their transgression in present and future practice.</p><p>Furthermore, as Neuhäuser (<span>2014</span>) has highlighted, producing counterproductive defensiveness similarly arises on the structural model. On a structural model, since no actor is primarily responsible or wants to assume (costly) responsibility for the injustice, there is a strong incentive to avoid responsibilities or pass those responsibilities onto others just as there would be with blame and guilt (p. 244). I further add that there is strong reason to doubt that singling out a policy or actor as directly unjust and subject for moral opprobrium is counterproductive. The identification of an unjust policy or act and resultant public moral outrage can exert a powerful influence and change policy. In fact, the policy of separating migrant families at the border in the United States is one such policy that has since been abandoned in part as a result of being identified as morally unjust and the public moral outrage that followed.<sup>15</sup> Therefore, it is not clear that the structural model can claim an advantage in effectiveness and forward-looking reform.</p><p>My last and most crucial claim is that the responsibilities on a Structural Injustice Approach are problematically diffuse and weak. Parekh criticizes the dominant Duty of Rescue Approach on the grounds that, on this approach, Northern states are framed as mere innocent potential rescuers who have done nothing wrong (2020, pp. 158–59) and that states then view the humanitarian crisis of global displacement as not their responsibility and view any obligations to help as discretionary (2017, p. 106). Parekh then aims to provide an alternative to the Duty of Rescue Approach by highlighting the injustices against refugees that Northern states are responsible for, and by advancing a new framework of responsibility to fix these injustices to which Northern states are connected. However, it is not clear that Parekh' approach provides much significant advancement. The responsibility to fix a structural injustice does not appear to be different in kind or have greater weight than duties on the conventional Duty of Rescue Approach, as I shall now explain.</p><p>On Parekh's (2017) analysis of containment and encampment, this injustice has occurred as a result of structural processes, which entails that Northern states are not responsible for causing this outcome, nor have they done anything wrongful. As part of the responsibility to fix the injustice, Parekh's account posits that states that are connected and well placed to do so ought to help: “[Northern] states have the capacity to help” and “derive benefits from the phenomenon of encampment by avoiding the costs of settling refugees on their territories.” Parekh suggests that “we [Northern states] have remedial responsibility [in part] based on capacity, effectiveness, and cost […] we have the capacity to aid effectively and at a relatively low cost” (p. 124).</p><p>Similarly, Parekh's (<span>2020</span>) conception of responsibility for fixing the injustice of refugees' inability to find refuge “stresses that we are responsible not because we have done something wrong, [and] allows discretion on what we can and should do to address this responsibility” (p. 171). It is true that Parekh suggests that Northern states share responsibility for fixing the injustice since “they played an influential role in how the system is set up,” and “because they have benefited” from the system in avoiding “the burden of hosting large numbers of refugees or processing their asylum claims.” However, Parekh specifies that a “crucial reason” Northern states have a responsibility to fix the injustice is because “we [Northern states] have the capacity to change it” (pp. 173–74). Parekh continues: “in many ways, [Northern] states are like the person watching a child drown in a shallow pond—we are able to do a lot without compromising anything of moral worth” (p. 175).</p><p>The above conception of responsibilities appear no different in kind from duties to alleviate the plight of refugees (if one can do so at little cost) on the standard Duty of Rescue Approach. Parekh's structural conception similarly casts Northern states as the innocent bystanders and potential rescuers, not doing anything wrong or directly harming refugees, but who have responsibilities to help insofar as they are able to do so at little cost.</p><p>Further, it is not clear that the responsibilities on a structural model are sufficiently weighty to motivate reform, or any weightier than the duties on a standard Duty of Rescue Approach. On the structural model it is hard to see why an agent should be especially compelled to fix the injustice, or why their obligations are particularly binding. After all, on the structural model, the agent did nothing wrong, is not blameworthy, they are not causally responsible for any of the harms caused, and all the harms are the outcome of structural processes beyond their control (Parekh, 2017, pp. 124–5). Why then, for example, ought a state be compelled to help fix a structural injustice against refugees they have not caused, or done anything wrong toward and should not be blamed for, beyond the fact that there is a morally problematic situation and they are in a position to help alleviate it? Thus, it is not clear how, having established that Northern states are connected to an injustice against refugees, the resulting responsibilities are particularly strong, or any stronger or less discretionary than a simple duty to rescue refugees in dire circumstances to which one is not in some way connected. Therefore, the responsibilities on Parekh's approach do not seem any stronger or provide any advancement on the standard Duty of Rescue Approach.</p><p>In fact, a more serious problem arises. As Martha Nussbaum (<span>2010</span>) identifies, on the structural model of responsibility, which is strictly forward-looking, if an agent fails to fulfill their responsibility in alleviating an injustice to which they are connected, they ought not to be blamed and have not done anything wrong.<sup>16</sup> Therefore, on Parekh's incorporation of this account of responsibility, states that do nothing to fix the structural injustice are not acting wrongfully and should not be blamed for their omission. This entails that on the structural model, the responsibilities are in fact <i>more discretionary</i> and <i>less weighty</i> than duties on the Duty of Rescue Approach, since on that approach, states have fundamental moral duties to help refugees if they can do so at little cost, and are acting morally wrongfully if they fail to perform such duties.<sup>17</sup> Therefore, it seems that, in fact, the standard Duty of Rescue Approach has the advantage over Parekh's approach in giving rise to weightier obligations to alleviate the plight of refugees, which would be wrongful not to perform. Unfortunately, in seeking to provide an alternative to the Duty of Rescue Approach<i>—</i>by showing how Northern states are connected to harms that refugees endure<i>—</i>Parekh's approach in fact provides a framework of responsibility which is less binding and allows states to fail to aid refugees without acting wrongfully.</p><p>Instead, I suggest that once we recognize the harms that result from Northern state practices as indeed <i>direct injustices</i> against refugees, we see that such states are certainly not mere innocent bystanders nor potential rescuers but are directly responsible for unjust harms against refugees. As such these states have primary, nondiscretionary, moral duties to amend or abolish specific policies and practices that cause harm. This Direct Injustice Approach leads to actionable and tangible objectives that have substantive impact. The duties are more fairly distributed in being concentrated on primary perpetrators. Such duties are also much stronger: since states are unjustly harming innocent persons, these states have decisive and compulsory negative moral duties to desist. These duties are particularly strong, stronger than a positive duty to help refugees at little cost; and much stronger than a discretionary responsibility to fix a structural injustice to which the states have non-wrongfully contributed.</p><p>Yet, it may be objected that the structural model could be amended to ground more stringent responsibilities. For example, Zheng (<span>2021</span>) argues that agents implicated in structural injustices can be held accountable and subjected to “formative moral criticism” which functions as supportive feedback to encourage them to improve and live up to their responsibilities to address relevant injustices (p. 525). Yet, this formative moral criticism does not involve blame or sanction on agents, nor implies that the agent who failed to live up to their responsibilities has acted wrongfully. This framework then does not appear to ground or motivate stringent moral duties on the part of states to address the injustice that would be wrongful not to perform. In another proposal, Khan (<span>2019</span>) argues that while agents cannot be blamed for past contributions to structural injustice, they each bear a precautionary duty to take action to avoid or mitigate future contributions, for which they can be blamed if they do not perform (p. 40). Similarly, Catherine Lu (<span>2017</span>) suggests that while individuals may not be blameworthy for contributions to a structural injustice, they are blameworthy if they fail to act on their responsibilities to address it (discussed in McKeown, <span>2021</span>). Thus, Khan's and Lu′s proposals would yield a framework of responsibilities, which would be blameworthy (and presumably wrongful) not to perform. Note however that this amended framework would still take us no further than a standard Duty of Rescue Approach, and would not ground (as) stringent duties as on the Direct Injustice Approach I advocate.<sup>18</sup> Therefore, proposals for an amended model of structural responsibilities may still fail to ground strong duties or stronger duties than the standard Duty of Rescue Approach to address the injustice against refugees. By contrast, the Direct Injustice Approach accurately captures the normative and causal relations between state actors' policies and practices and the unjust harms endured by refugees as indeed direct injustices, and is thus able to ground compulsory negative moral duties to reform or refrain from unjust harmful policies and practices against the world's displaced.</p><p>In my view, Parekh's analysis has done more to enhance philosophical understanding of how Northern states are connected to serious harms that refugees face while displaced than any recent work in moral and political philosophy. Parekh's insights have established how Northern state practices result in containment, encampment, and the prevention of refuge and that these harms represent an injustice against refugees. However, I have aimed in this article to constructively critique one aspect of Parekh's important analysis and show that this injustice is not, and ought not to be understood as, a structural injustice. Instead, certain Northern states unjustifiably harm innocent refugees looking for safety through practices of containment, encampment, and denying access to refuge. This <i>is</i> a direct injustice and ought to be identified as such. I personally believe this injustice is one of the most serious in which Northern states are directly implicated in the contemporary era, and that the movement toward the abolition of unjust harmful practices used against the world's displaced ought to be considered an urgent moral priority.</p>","PeriodicalId":46756,"journal":{"name":"Journal of Social Philosophy","volume":null,"pages":null},"PeriodicalIF":1.1000,"publicationDate":"2022-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/josp.12486","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Social Philosophy","FirstCategoryId":"98","ListUrlMain":"https://onlinelibrary.wiley.com/doi/10.1111/josp.12486","RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"ETHICS","Score":null,"Total":0}
引用次数: 0

Abstract

The dominant philosophical approach to understanding the moral duties that states in the Global North have toward the 26 million refugees worldwide is what we can call the Duty of Rescue Approach.1 According to this approach, states in the Global North (hereafter Northern states) are mere innocent bystanders overlooking the humanitarian crisis of refugee displacement unfold, and these states have moral duties to rescue refugees from this situation, at least if such states are able to do so at little cost to themselves.2

Serena Parekh's recent normative analysis (2017, 2020) has sought to challenge this dominant approach. Parekh highlights certain Northern state policies and practices used in response to refugees while they are displaced and suggests that refugees endure extensive harms as result of such policies and practices, including the harms of containment and encampment, and their being prevented from accessing adequate refuge. These harms, Parekh argues, are an injustice. Thus, for Parekh, certain Northern states, far from being mere innocent bystanders, are responsible for injustice against refugees.

In this article, I fully endorse Parekh's claims that refugees endure certain harms as a result of Northern state practices, and that such harms constitute an injustice against refugees. Yet, I will explore how we ought to understand this injustice. I contest Parekh's claim that the harms refugees endure as a result of Northern state practices are, and ought to be understood as, a structural injustice—an unfortunate, unintended unjust outcome resulting from structural processes (call this Parekh's Structural Injustice Approach). Instead, I contend that these harms are, and ought to be understood as, a direct injustice against refugeesan unjust outcome directly resulting from specific and avoidable policies enacted by relatively unconstrained actors (call this the Direct Injustice Approach). I argue that Parekh's Structural Injustice Approach fails to accurately capture the causal and normative relations between Northern state practices and the harms endured by refugees, and that this approach fails to provide any advancement on, and suffers from same the problems as, the standard Duty of Rescue Approach to which it is ostensibly an alternative. I instead advocate a Direct Injustice Approach to understanding the harms that refugees endure as a result of Northern states practices. If these harms are indeed a direct injustice, then responsible Northern states are certainly not mere innocent bystanders, and are not merely involved in structural processes that have an unintended unjust outcome (as on Parekh's Structural Injustice Approach), but are instead directly committing a grave injustice against innocent refugees and thus have urgent negative duties to refrain from unjustly harming the world's displaced.

Section 1 explains Parekh's arguments in more detail. Section 2 revisits Iris Marion Young's (2010) account of structural injustice (on which Parekh's arguments are based) to establish the necessary conditions of structural injustices. Section 3 casts doubt on whether the harms that refugees face due to Northern state practices can accurately be cast as a structural injustice according to the necessary conditions. Section 4 advances normative arguments against understanding these harms as a structural injustice, since such an understanding will (among other shortfalls) fail to provide any advancement on the Duty of Rescue Approach and will fail to ground (weighty) moral duties to address the injustice against refugees. Section 5 concludes.

Parekh (2020) criticizes the dominant Duty of Rescue Approach to understanding obligations to refugees on which “[Northern states] are often seen only as rescuers unconnected to the harms that refugees face once displaced.” On this “rescue frame” Northern states “have not done anything wrong. They have not caused refugees to come into harm's way, but are merely stepping in to help” (p. 18). This frame fails to capture the reality of “the harms experienced by refugees and the role that [Northern states] have played in this outcome” and “the harms that we [Northern states] have created” (pp. 19, 158). Parekh, across two books, draws attention to two particular harms that refugees endure as a result of Northern state practices: first the containment and encampment of refugees, and second the inability of refugees to access refuge.

In Refugees and the Ethics of Forced Displacement (2017), Parekh focuses on the containment and encampment of refugees. Northern states, through a variety of policies and practices, have sought to contain refugees in regions in the Global South away from Northern territories. In these regions, refugees are left to reside in refugee camps indefinitely, and Northern states financially and politically support housing refugees in such camps as their preferred response toward refugees (as opposed to resettling or granting asylum to large numbers of refugees; Parekh, 2017, pp. 37–9). The harms of such containment and encampment include “a sense of captivity as well as the denial of freedom, autonomy and basic human rights […] for prolonged periods of time” (p. 5). Refugees in camps are passively dependent on international aid, face anxiety-inducing uncertainty over future prospects, and lack the opportunities necessary for an adequately autonomous existence. Refugees endure such conditions for years, decades, and sometimes generations (p. 3).

Parekh further demonstrates how camps affect refugees' rights. “First refugee camps rarely uphold the rights that refugees are entitled to based on the [1951 Refugee Convention].” Second, “because refugees in camps are so vulnerable, basic human rights are routinely violated both by other refugees and by the state and NGOs, and refugees lack the ability to claim their rights or have violations redressed” (p. 31). Parekh draws upon empirical studies which find the full catalogue of human rights violations in certain camps and conclude that the very structure of campsas enclosed spaces, beyond the rule of law, that deny free movemententails that enclosing refugees in camps cannot be reconciled with respecting their human rights (Verdirame et al., 2005). Parekh notes that among the most severe and pervasive violations in camps is sexual violence. “Domestic violence, sexual exploitation, and various kinds of sexual torture occur at extremely high rates.” This “is known to occur globally in all camp settings” (2017, p. 34).

In No Refuge (2020), Parekh focuses on the harm of refugees being unable to access refuge. Parekh understands refuge as “the minimum conditions of human dignity,” which consist of an adequate standard of living (including food, water, clothing, adequate housing, and medical care) as well as physical security against threats to basic human rights (pp. 11–3). Parekh notes that the vast majority of refugees (86%), once displaced from their states of origin, reside in regions in the Global South where they effectively face three options: spend prolonged periods of time without adequate autonomy or security in squalid refugee camps; live in destitution without formal assistance and face exploitation and human rights violations in urban areas; or risk their lives on dangerous journeys and endure extensive human rights abuses to reach adequate security and subsistence in Northern states. Each of these three options fails to provide the minimum conditions of human dignity, and thus the vast majority of the world's refugees are unable to access refuge (pp. 105–6).

For Parekh, this inability to access refuge is a harm that results from Northern state practices. Northern states, seeking to control their borders, have adopted a variety of policies and practices that serve to contain refugees away from Northern territories and prevent them accessing asylum. Parekh cites examples including pushbacks against refugees at European borders, child separation policies in the United States which deter refugees from seeking asylum, Australian interception at sea and returning refugees to off-shore detention centers in Nauru, the detention of refugees in camps and centers in Greece, an EU arrangement with Libya which detains refugees in centers on the Libyan coast and contains refugees in regions in North Africa, and the EU-Turkey Deal which blocks migratory routes and prevents refugees from arriving in Europe (2016, pp. 121–40). In addition, instead of providing adequate access to asylum, or resettling large numbers of refugees, Northern states have opted for providing and funding refugee camps in the Global South as their preferred response to refugees, which, as we saw above, entail a sense of captivity and extensive human rights violations (p. 105).

Due to these practices, refugees are precluded from effective access to asylum in Northern states, and are consigned to endure the squalid camps or destitution in urban areas in the Global South, or risk their lives on the now increasingly difficult and dangerous journeys to Northern states. Thus, as a result of Northern state practices, “we have created a situation in which the vast majority of refugees are effectively unable to get refuge in any meaningful sense; that is, they are not able to access the minimum conditions of human dignity” (p. 159).

For Parekh, the two above harmsthe containment and encampment of refugees, and refugees' inability to find refugerepresent injustices against refugees. Thus, far from being innocent bystanders or mere potential rescuers, Northern states are responsible for injustices against refugees.

Though Young does not explicitly specify the necessary conditions, we can infer from her analysis that a structural injustice is: an unjust outcome that is (1) distinct from harms and wrongs that result from direct individual interaction; (2) distinct from harms and wrongs that are the direct result of actions and policies of states (or other institutions); and is instead (3) the unintended consequence of (4) structural processes constituted by (5) a multitude of uncoordinated agents and policies (6) adhering to morally acceptable ends.

I will now argue that the two harmscontainment and encampment, and the inability to access refugewhich refugees endure as a result of Northern state practices are not structural injustices understood in the above way. My argument is comprised of two interconnected components. The first is a theoretical-conceptual claim: these harms do not fit the conceptual criteria of a structural injustice and are more accurately understood as direct injustices. The second is normative: a Structural Injustice Approach problematically distracts attention away from direct injustices that must be addressed, absolves state actors of wrongdoing, and entails a framework of weak responsibilities to address the injustice, which, in turn, provides no advancement on the standard Duty of Rescue Approach.

To pre-empt the implications of this discussion, if the harms that refugee endure as a result of Northern state practices are a structural injustice, then it is merely an unfortunate, unintended outcome, and no Northern state is blameworthy or acting wrongfully or causing direct harms to refugees, and these states will thereby have only weak, discretionary responsibilities to amend structural processes that cause the injustice. By contrast, if these harms are direct injustices, then certain Northern states have indeed acted wrongfully and are directly causing harms to refugees, and we are able to hold primary state actors and policies to appropriate account for the unjust harms caused, and such actors will have urgent and compulsory negative moral duties to refrain from causing this injustice against refugees. It matters greatly, therefore, whether these harms are indeed direct or structural injustices.

On my analysis, the unjust outcomes of the containment and encampment of refugees, and their prevention from accessing refuge, are not the unintended by-product of structural processes distinct from individual wrongdoing or unjust policies, but are instead the direct result of agents and specific, intentional and (importantly) avoidable policies. For example, consider the details of the 2017 EU arrangement with Libya and the 2016 EU-Turkey Deal.

In the EU arrangement with Libya, refugees are intercepted on the Mediterranean Sea and returned to indefinite detention in Libya (Human Rights Watch, 2018b). This arrangement has two primary effects. First: detention: intercepted refugees are placed in detention centers on the Libyan coast, funded by EU states including the United Kingdom (D. Taylor, 2018). Overcrowding and lack of sanitation in these centers has led to starvation, disease (in particular tuberculosis), and death. Refugees, including children, also face grievous maltreatment: being raped, beaten, abused, starved, and even traded as slaves (BBC News, 2018; Human Rights Watch, 2019). Documented footage depicts the torture of refugees being burned, maimed, and electrocuted.3 The second effect is containment: this arrangement blocks refugees from traveling 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 so 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.4

The 2016 EU-Turkey deal aims to stem refugee flows from Turkey to Greece and itself has two primary effects. The first is encampment: refugees who have crossed the Aegean Sea and arrived on the Greek islands are enclosed into camps without adequate supplies of food, shelter, and medicine and face extensive human rights violations; this has caused “immense suffering for asylum seekers” (Human Rights Watch, 2016). In the Moria camp, “the sewage system is so overwhelmed, that raw sewage has been known to reach the mattresses where children sleep” (International Rescue Committee, 2018).5 There is also a significant threat of physical violence, with women and even children being subjected to sexual violence (Human Rights Watch, 2018a). 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, 2018a). The second effect of the deal is containment as refugees are blocked from traveling to Greece from Turkey and so 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, 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 and 80% of refugees live in severe poverty (Human Rights Watch, 2016; UNHCR, 2016, p. 55). In Jordan, there is a “rapid deterioration in living conditions” and a significant number of refugees live in abject poverty (UNHCR, 2017). In Lebanon, 70% of refugees live under the extreme poverty line and “each day represents a monumental struggle to meet the most basic needs of food, water and healthcare.”6

The arrangement with Libya and the EU-Turkey Deal directly result in the containment of refugees, prevent them from accessing adequate refuge, and consign refugees to endure a lack of adequate subsistence and security in camps and urban areas in the Global South. It seems immediately clear that such harmful outcomes cannot be accurately cast as a structural injustice. The containment policies above are precisely that: policies—devised and then deliberately enacted by states and institutions, with the express purpose of containing refugees. In these cases, the EU council, comprised of representatives from member states, devised, and implemented such policies with the intention of containing refugees and preventing them from arriving on European territories.7

To add to these examples, the Australian government policy of interception and return of refugees either to Indonesia or to off-shore detention centers in Nauru or Manus Island under “Operation Sovereign Borders,” is an explicit policy (the latest in a successive trend of off-shoring policies) that forcibly and intentionally denies access to refuge, detains refugees in abusive conditions in centers, and contains refugees away from Australian territory in regions in the Global South where they endure a life in camps (BBC News, 2017; “Operation Sovereign Borders (OSB),”). The US policy of detention and fast-track deportation of asylum seekers, as well as child separation practices, ‘Title 42’ expulsions and ‘Migrant Protections’ turn-back protocols, are again policies intended to deter and prevent refugees from accessing refuge in the United States, and contain those refugees in Central and South America. This forms part of a larger trend of successive deterrence policies enacted by the US against refugees.8

Considering these examples, it becomes clear that the containment of refugees and their prevention from accessing refuge is not an unintended, unfortunate, by-product of structural processes, but instead the direct harmful and unjust outcome of explicit and intentional policies specifically designed and enacted by Northern state actors.9 Therefore, the resulting harms cannot be understood as structural injustices, but are more accurately understood as direct injustices against refugees.

I now present the second component of my argument: the normative case against the Structural Injustice Approach. On a structural injustice model of responsibility, no one agent or policy or set of policies is directly responsible for causing the injustice, no agent has acted wrongfully, and no policy is itself necessarily unjust, and no agent should be blamed for their contribution to the injustice. Instead, the injustice has resulted from structural processes beyond any individual agent's control or policy contribution. Yet, all agents whose morally permissible actions nonetheless contribute in whatever small way to constituting and reconstituting the structural processes that cause the injustice share responsibility for fixing that injustice (Young, 2010, pp. 100–10). Using this model, Parekh (2017) suggests that responsibility for fixing the structural injustice of containment and encampment, for example, is shared among all those states (and citizens of those states) whose legitimate pursuits of state sovereignty and border controls are nonetheless constituting and reconstituting structural processes that serve to contain and encamp refugees for prolonged periods of time (pp. 122–5).

I argue that this Structural Injustice Approach distracts attention away from directly unjust laws and practices that ought to be the focus for reform, absolves primary actors of (appropriate) moral responsibility and accountability for unjust harms caused, results in an unfair distribution of responsibilities, and entails a problematically weak framework of responsibilities to address the harms against refugees.

First, casting the harms that refugees endure as structural entails that it is difficult to arrive at tangible and actionable objectives when attempting to amend structural processes. How should all those individuals, whose non-wrongful, small-scale actions contribute to structural processes, recognize which and how their actions do so, and then proceed to change them? As Christian Neuhäuser (2014) argues, on the structural model there is no principled means of distributing responsibilities and actions among contributing actors such that “it remains unclear who has to do what” (p. 242). More pressingly, how should Northern states that (on the structural model) are not committing any wrongdoing or adopting unjust policies or directly causing the unjust situation change their ways? There may of course be answers to such questions, but they are not obvious, nor obviously likely to bring substantial change.

For example, promising frameworks of duties and responsibilities have been established by scholars in response to the objection that a structural model of responsibility fails to ground actionable imperatives. Elizabeth Khan (2019) argues that individuals are unable to unilaterally address structural injustices, yet they have a precautionary duty to take action to prevent or mitigate their contributions to ongoing and future structural injustices, which can be discharged through creating and maintaining suitable collectives that are able and willing to address the structural injustice (pp. 41–3). However, applied to the context of understanding state practices against refugees as a structural injustice, this proposal would presumably suggest that individual states are unable to unilaterally address the injustice, but ought to form collectives to address it. This proposal does not obviously yield specific and actional public policy proposals nor clear imperatives or objectives for reform. Robin Zheng (2018) argues that we can fulfill our responsibilities through the performance of our social roles in different ways according a role ideal, which (if done in accordance with others) can help bring about structural change (e.g., teachers can perform their roles in ways that diversify their syllabi to correct for systemic underrepresentation of minorities) (pp. 9–11). Applied to the context of understanding state practices against refugees as a structural injustice, presumably Zheng's proposal would entail that Northern state actors perform their roles in ways that would help mitigate or address structural injustices. This sounds promising. However, as Zheng acknowledges, performing an ideal social role is indeterminate in content and open to each agent's individual conception of the good and what an ideal social role would be (p. 17). As a result, this understanding does not specify which role-performances, policies, or actions would be mandated for Northern state actors, nor establish incentives or parameters for state actors to perform those roles in ways different to how they currently (wish to) perform them. Moreover, since on a structural injustice approach, no state is acting wrongfully, nor are their laws or policies necessarily unjust or directly causing the injustice, there is little grounds here to determine which actions to take or that amending laws or policies are the required actions, nor is there strong moral imperative for reform (a point I shall return to below). Thus, the Structural Injustice Approach, even with both Khan and Zheng's proposals, does not appear to ground actionable reform in the context of state practices toward refugees.

If instead we recognize specific policies that contain and encamp refugees, and deny their access to refuge as directly harmful and unjust, then this provides a clear and actionable objective for change: to amend or reject those policies. For example, states could end the practice of intercepting and returning refugees to abusive detention centers in Libya. The forced encampment of refugees on the Greek islands can be prohibited and the encamped refugees resettled. The containment policies with Libya and Turkey can be identified as harmful and unjust and their reform, to provide safe and legal routes to safety, can be called for. Moreover, current policies that contain refugees in regions where their lives, liberty, and human rights are under threat can be prohibited under International Law as morally equivalent to the (currently prohibited) refoulement of refugees to regions where their lives, liberty, and human rights are under threat, as I have recently argued elswhere (Hillier-Smith 2020). These are actionable imperatives that will demonstrably improve the wellbeing of refugees if and when such policies are properly recognized as direct injustices and reformed. Thus, a structural model risks problematically distracting attention away from these imperatives to the detriment of urgent reform. In fact, one could press the point further and suggest that to be inattentive to these urgent reforms through mis-focusing on structural processes and unclear individual structural responsibilities objectionably fails those refugees whose wellbeing and human rights could be more adequately protected if such harmful practices were identified as directly unjust and prohibited.

Defenders of a Structural Injustice Approach may object and suggest that on their approach, one can point to certain policies and practices (such as those above) that are contributing to the structural processes as appropriate subjects for reform. However, in response, it is unclear why, on a structural model, such policies and practices ought to be subject to reform. After all, none of the policies or practices are themselves unjust but are instead adhering to morally acceptable ends; as Parekh (2020) writes: “structural injustice arises from the actions and policies of thousands of individuals acting according to morally acceptable rules and norms,” and such actions may be “morally neutral or even positive” (pp. 163, 169). Furthermore, on the structural model, none of these actions, policies, or practices are the (direct) cause of the injustice, which is instead the result of structural processes beyond the control and scope of specific actions, policies, and practices. It is hard then to see why, on a structural model, there is an(y) imperative to reform these morally just policies and practices that make little if any difference to the injustice.14

Second, the Structural Injustice Approach absolves primary state actors of moral responsibility and accountability for unjust harms caused to refugees and thereby “lets them off the hook.” For instance, having detailed numerous practices that Northern state actors have introduced to deny refugees access to Northern territories, including the incarceration of refugees in detention centers in Libya, and the subsequent torture, sexual violence and slavery that refugees face (2020, p. 7), Parekh suggests, that for the harm of refugees being locked out of refuge, “we [Northern states] are responsible not because we have done something wrong [or] something that we should feel guilty about” and that on the structural model of responsibility “we should not blame each other or call each other guilty for [the injustice]” (2020, pp. 170, 171).

This above conception of Northern states' responsibility risks positing that (groups of) states adopting policies such as the EU arrangement with Libya, or the EU encampment and containment of refugees, or the Australian policy of interception and return—which contain and deny refuge and result in significant physical and mental suffering and human rights violations to innocents—are not doing anything wrong or directly harming refugees, but are simply permissibly pursuing their own legitimate interests and ought not to be blamed. This conception objectionably fails to hold these primary state actors and unjust policies sufficiently to account, undeservedly absolves such actors of any wrongdoing, and fails to capture the gravity of their moral responsibility for the significant harms and human rights violations caused to innocent refugees.

Further, on the structural model, responsibility is distributed away from these primary actors, and instead dispersed among many thousands of persons (e.g., any and all citizens of Northern states) whose small-scale contributions have been negligible and non-blameworthy. This unfairly burdens non-blameworthy actors with responsibilities to fix the injustice comparable to those of the primary actors that cause the injustice. This undiscerning distribution of responsibility is therefore unjustly disproportionate not only in absolving the blameworthy actors of proportionate responsibility, but also burdening non-blameworthy actors with disproportionate responsibility, resulting in the unfairness of distributive injustice. By contrast, on a direct injustice model of responsibilities, primary actors, and policies responsible for causing the injustice are held accurately and proportionately to account for the unjust harms caused to refugees, and these agents bear the primary duties to address the injustice.

It may be objected that a direct injustice model is backward-looking, whereas a structural model is forward-looking. While on a direct injustice model, the aim is to trace causal and moral responsibility, assign blame and accountability, and “to demand punishment or compensation”; on the forward-looking structural model, the focus is on addressing the unjust outcome itself and “on how to make things more just in the future” (Parekh, 2020, p. 164). Parekh takes it as an advantage of the structural model that the aim is not to single out particular actors or policies for blame, but to more appropriately focus on the unjust outcome and identify ways that we can work collectively to address it (2020, pp. 162, 170). It may also be objected that assigning blame on a direct injustice model will be counter-productive as one simply produces defensiveness, blame-switching, and resentment on the part of the accused (Young, 2010, pp. 114–7).

In response, a direct injustice model does not preclude forward-looking reform nor addressing unjust circumstances. On the contrary, the aim of identifying certain harmful policies and practices as direct injustices and raising awareness of their unjust consequences is necessarily to seek their reform, and to instantiate more just policies and practices in their place. The aim of identifying persons (in particular state actors) as morally responsible for unjust outcomes is to hold them accountable and as subjects of normative criticism and public moral opprobrium, which in turn aims to incentivize conformity to certain norms and disincentivise their transgression in present and future practice.

Furthermore, as Neuhäuser (2014) has highlighted, producing counterproductive defensiveness similarly arises on the structural model. On a structural model, since no actor is primarily responsible or wants to assume (costly) responsibility for the injustice, there is a strong incentive to avoid responsibilities or pass those responsibilities onto others just as there would be with blame and guilt (p. 244). I further add that there is strong reason to doubt that singling out a policy or actor as directly unjust and subject for moral opprobrium is counterproductive. The identification of an unjust policy or act and resultant public moral outrage can exert a powerful influence and change policy. In fact, the policy of separating migrant families at the border in the United States is one such policy that has since been abandoned in part as a result of being identified as morally unjust and the public moral outrage that followed.15 Therefore, it is not clear that the structural model can claim an advantage in effectiveness and forward-looking reform.

My last and most crucial claim is that the responsibilities on a Structural Injustice Approach are problematically diffuse and weak. Parekh criticizes the dominant Duty of Rescue Approach on the grounds that, on this approach, Northern states are framed as mere innocent potential rescuers who have done nothing wrong (2020, pp. 158–59) and that states then view the humanitarian crisis of global displacement as not their responsibility and view any obligations to help as discretionary (2017, p. 106). Parekh then aims to provide an alternative to the Duty of Rescue Approach by highlighting the injustices against refugees that Northern states are responsible for, and by advancing a new framework of responsibility to fix these injustices to which Northern states are connected. However, it is not clear that Parekh' approach provides much significant advancement. The responsibility to fix a structural injustice does not appear to be different in kind or have greater weight than duties on the conventional Duty of Rescue Approach, as I shall now explain.

On Parekh's (2017) analysis of containment and encampment, this injustice has occurred as a result of structural processes, which entails that Northern states are not responsible for causing this outcome, nor have they done anything wrongful. As part of the responsibility to fix the injustice, Parekh's account posits that states that are connected and well placed to do so ought to help: “[Northern] states have the capacity to help” and “derive benefits from the phenomenon of encampment by avoiding the costs of settling refugees on their territories.” Parekh suggests that “we [Northern states] have remedial responsibility [in part] based on capacity, effectiveness, and cost […] we have the capacity to aid effectively and at a relatively low cost” (p. 124).

Similarly, Parekh's (2020) conception of responsibility for fixing the injustice of refugees' inability to find refuge “stresses that we are responsible not because we have done something wrong, [and] allows discretion on what we can and should do to address this responsibility” (p. 171). It is true that Parekh suggests that Northern states share responsibility for fixing the injustice since “they played an influential role in how the system is set up,” and “because they have benefited” from the system in avoiding “the burden of hosting large numbers of refugees or processing their asylum claims.” However, Parekh specifies that a “crucial reason” Northern states have a responsibility to fix the injustice is because “we [Northern states] have the capacity to change it” (pp. 173–74). Parekh continues: “in many ways, [Northern] states are like the person watching a child drown in a shallow pond—we are able to do a lot without compromising anything of moral worth” (p. 175).

The above conception of responsibilities appear no different in kind from duties to alleviate the plight of refugees (if one can do so at little cost) on the standard Duty of Rescue Approach. Parekh's structural conception similarly casts Northern states as the innocent bystanders and potential rescuers, not doing anything wrong or directly harming refugees, but who have responsibilities to help insofar as they are able to do so at little cost.

Further, it is not clear that the responsibilities on a structural model are sufficiently weighty to motivate reform, or any weightier than the duties on a standard Duty of Rescue Approach. On the structural model it is hard to see why an agent should be especially compelled to fix the injustice, or why their obligations are particularly binding. After all, on the structural model, the agent did nothing wrong, is not blameworthy, they are not causally responsible for any of the harms caused, and all the harms are the outcome of structural processes beyond their control (Parekh, 2017, pp. 124–5). Why then, for example, ought a state be compelled to help fix a structural injustice against refugees they have not caused, or done anything wrong toward and should not be blamed for, beyond the fact that there is a morally problematic situation and they are in a position to help alleviate it? Thus, it is not clear how, having established that Northern states are connected to an injustice against refugees, the resulting responsibilities are particularly strong, or any stronger or less discretionary than a simple duty to rescue refugees in dire circumstances to which one is not in some way connected. Therefore, the responsibilities on Parekh's approach do not seem any stronger or provide any advancement on the standard Duty of Rescue Approach.

In fact, a more serious problem arises. As Martha Nussbaum (2010) identifies, on the structural model of responsibility, which is strictly forward-looking, if an agent fails to fulfill their responsibility in alleviating an injustice to which they are connected, they ought not to be blamed and have not done anything wrong.16 Therefore, on Parekh's incorporation of this account of responsibility, states that do nothing to fix the structural injustice are not acting wrongfully and should not be blamed for their omission. This entails that on the structural model, the responsibilities are in fact more discretionary and less weighty than duties on the Duty of Rescue Approach, since on that approach, states have fundamental moral duties to help refugees if they can do so at little cost, and are acting morally wrongfully if they fail to perform such duties.17 Therefore, it seems that, in fact, the standard Duty of Rescue Approach has the advantage over Parekh's approach in giving rise to weightier obligations to alleviate the plight of refugees, which would be wrongful not to perform. Unfortunately, in seeking to provide an alternative to the Duty of Rescue Approachby showing how Northern states are connected to harms that refugees endureParekh's approach in fact provides a framework of responsibility which is less binding and allows states to fail to aid refugees without acting wrongfully.

Instead, I suggest that once we recognize the harms that result from Northern state practices as indeed direct injustices against refugees, we see that such states are certainly not mere innocent bystanders nor potential rescuers but are directly responsible for unjust harms against refugees. As such these states have primary, nondiscretionary, moral duties to amend or abolish specific policies and practices that cause harm. This Direct Injustice Approach leads to actionable and tangible objectives that have substantive impact. The duties are more fairly distributed in being concentrated on primary perpetrators. Such duties are also much stronger: since states are unjustly harming innocent persons, these states have decisive and compulsory negative moral duties to desist. These duties are particularly strong, stronger than a positive duty to help refugees at little cost; and much stronger than a discretionary responsibility to fix a structural injustice to which the states have non-wrongfully contributed.

Yet, it may be objected that the structural model could be amended to ground more stringent responsibilities. For example, Zheng (2021) argues that agents implicated in structural injustices can be held accountable and subjected to “formative moral criticism” which functions as supportive feedback to encourage them to improve and live up to their responsibilities to address relevant injustices (p. 525). Yet, this formative moral criticism does not involve blame or sanction on agents, nor implies that the agent who failed to live up to their responsibilities has acted wrongfully. This framework then does not appear to ground or motivate stringent moral duties on the part of states to address the injustice that would be wrongful not to perform. In another proposal, Khan (2019) argues that while agents cannot be blamed for past contributions to structural injustice, they each bear a precautionary duty to take action to avoid or mitigate future contributions, for which they can be blamed if they do not perform (p. 40). Similarly, Catherine Lu (2017) suggests that while individuals may not be blameworthy for contributions to a structural injustice, they are blameworthy if they fail to act on their responsibilities to address it (discussed in McKeown, 2021). Thus, Khan's and Lu′s proposals would yield a framework of responsibilities, which would be blameworthy (and presumably wrongful) not to perform. Note however that this amended framework would still take us no further than a standard Duty of Rescue Approach, and would not ground (as) stringent duties as on the Direct Injustice Approach I advocate.18 Therefore, proposals for an amended model of structural responsibilities may still fail to ground strong duties or stronger duties than the standard Duty of Rescue Approach to address the injustice against refugees. By contrast, the Direct Injustice Approach accurately captures the normative and causal relations between state actors' policies and practices and the unjust harms endured by refugees as indeed direct injustices, and is thus able to ground compulsory negative moral duties to reform or refrain from unjust harmful policies and practices against the world's displaced.

In my view, Parekh's analysis has done more to enhance philosophical understanding of how Northern states are connected to serious harms that refugees face while displaced than any recent work in moral and political philosophy. Parekh's insights have established how Northern state practices result in containment, encampment, and the prevention of refuge and that these harms represent an injustice against refugees. However, I have aimed in this article to constructively critique one aspect of Parekh's important analysis and show that this injustice is not, and ought not to be understood as, a structural injustice. Instead, certain Northern states unjustifiably harm innocent refugees looking for safety through practices of containment, encampment, and denying access to refuge. This is a direct injustice and ought to be identified as such. I personally believe this injustice is one of the most serious in which Northern states are directly implicated in the contemporary era, and that the movement toward the abolition of unjust harmful practices used against the world's displaced ought to be considered an urgent moral priority.

对难民的直接和结构性不公正
理解全球北方国家对全球2600万难民的道德义务的主要哲学方法是我们可以称之为“救援责任方法”。1根据这种方法,全球北方国家(以下简称北方国家)仅仅是无辜的旁观者,忽视了难民流离失所的人道主义危机的展开,这些国家有道德责任从这种情况中拯救难民。至少如果这些国家能够以很少的代价这么做的话。2Serena Parekh最近的规范分析(2017,2020)试图挑战这种主导方法。Parekh强调了北方各州在难民流离失所时采取的某些政策和做法,并指出,由于这些政策和做法,难民遭受了广泛的伤害,包括围堵和扎营的危害,以及他们无法获得适当的庇护。帕瑞克认为,这些伤害是不公平的。因此,在帕雷克看来,某些北方国家远不是无辜的旁观者,而是对难民的不公正负有责任。在这篇文章中,我完全赞同Parekh的说法,即由于北方国家的做法,难民遭受了某些伤害,这种伤害构成了对难民的不公正。然而,我将探讨我们应该如何理解这种不公正。我不同意帕瑞克的观点,即北方国家的做法导致难民遭受的伤害是,也应该被理解为一种结构性的不公正——一种由结构性过程导致的不幸的、意想不到的不公正结果(称之为帕瑞克的结构性不公正方法)。相反,我认为这些伤害是,而且应该被理解为,对难民的直接不公正——由相对不受约束的行为者制定的具体和可避免的政策直接导致的不公正结果(称之为直接不公正方法)。我认为,Parekh的结构性不公正方法未能准确地捕捉到北方国家的做法与难民所遭受的伤害之间的因果关系和规范关系,而且这种方法未能提供任何进步,并遭受与标准的救援义务方法相同的问题,它表面上是一种替代方法。相反,我主张用直接不公正的方法来理解北方各州的做法给难民带来的伤害。如果这些伤害确实是一种直接的不公正,那么负责任的北方各州肯定不仅仅是无辜的旁观者,也不仅仅是参与了产生意外不公正结果的结构性过程(如Parekh的结构性不公正方法),而是直接对无辜的难民犯下了严重的不公正,因此有紧急的消极责任来避免不公正地伤害世界上的流离失所者。第1节更详细地解释了Parekh的论点。第二节回顾了Iris Marion Young(2010)对结构性不公正的描述(Parekh的论点基于此),以建立结构性不公正的必要条件。第三节对难民因北方国家的做法而面临的伤害是否可以根据必要的条件准确地描述为结构性不公正提出了质疑。第4节提出了反对将这些伤害理解为结构性不公正的规范性论点,因为这样的理解(除了其他不足之外)将无法在救援责任方法上提供任何进展,也无法为解决针对难民的不公正问题提供(重要的)道德责任。第5节总结。Parekh(2020)批评了在理解对难民的义务方面占主导地位的“救援责任”方法,在这种方法中,“(北方各州)往往只被视为与难民一旦流离失所所面临的伤害无关的救援者。”在这个“救援框架”上,北方各州“没有做错任何事”。他们没有让难民陷入危险,而只是介入帮助”(第18页)。这一框架未能捕捉到“难民所经历的伤害以及[北方各州]在这一结果中所扮演的角色”和“我们[北方各州]所造成的伤害”的现实(第19,158页)。在两本书中,Parekh让人们注意到由于北方国家的做法,难民所遭受的两种特别的伤害:首先是对难民的遏制和营地,其次是难民无法获得庇护。在《难民与被迫流离失所的伦理》(2017)一书中,Parekh关注了难民的收容和营地问题。北方各州通过各种政策和做法,设法将难民收容在远离北方领土的全球南方地区。 在这些地区,难民被无限期地留在难民营中,北方各州在财政和政治上支持将难民安置在难民营中,因为这是他们对难民的首选反应(而不是重新安置或给予大量难民庇护;Parekh, 2017,第37-9页)。这种封锁和营地的危害包括"一种被囚禁的感觉,以及长时间剥夺自由、自治和基本人权[.]"(第5页)。难民营中的难民被动地依赖国际援助,对未来前景感到焦虑不安,缺乏充分自主生存所必需的机会。难民在这样的条件下忍受数年、数十年,有时甚至几代人(第3页)。帕雷克进一步证明了难民营如何影响难民的权利。“第一难民营很少维护难民根据1951年《难民公约》所享有的权利。”第二,“因为难民营中的难民非常脆弱,基本人权经常受到其他难民、国家和非政府组织的侵犯,难民没有能力要求他们的权利或得到纠正”(第31页)。Parekh借鉴了一些实证研究,这些研究发现了某些难民营中侵犯人权的完整目录,并得出结论,难民营的结构本身——作为封闭空间,超越法治,否认自由流动——意味着将难民封闭在难民营中,与尊重他们的人权是不相容的(verdiame et al., 2005)。帕瑞克指出,难民营中最严重、最普遍的侵犯行为是性暴力。“家庭暴力、性剥削和各种性折磨的发生率极高。”这“已知在全球所有营地设置中都会发生”(2017年,第34页)。在《无避难所》(2020)中,帕瑞克关注的是难民无法获得避难所的危害。Parekh将避难理解为“人类尊严的最低条件”,包括适当的生活水平(包括食物、水、衣服、适当的住房和医疗)以及免受基本人权威胁的人身安全(第11-3页)。Parekh指出,绝大多数难民(86%)一旦离开原籍国,就会居住在全球南方地区,在那里他们实际上面临着三种选择:在肮脏的难民营中度过很长一段时间,没有足够的自主权或安全保障;在没有正式援助的情况下生活在赤贫中,在城市地区面临剥削和侵犯人权的行为;或冒着生命危险踏上危险的旅程,忍受广泛的侵犯人权行为,以在北方各州获得足够的安全和生存。这三种选择中的每一种都不能提供人类尊严的最低条件,因此世界上绝大多数难民无法获得庇护(第105-6页)。对帕瑞克来说,无法获得庇护是北方各州惯例造成的伤害。寻求控制其边界的北方各州采取了各种政策和做法,旨在将难民挡在北方领土之外,防止他们获得庇护。Parekh列举的例子包括在欧洲边境对难民的抵制,美国阻止难民寻求庇护的儿童分离政策,澳大利亚在海上拦截并将难民送回瑙鲁的离岸拘留中心,将难民拘留在希腊的难民营和中心,欧盟与利比亚的安排将难民拘留在利比亚海岸的中心,并将难民收容在北非地区,以及欧盟-土耳其协议,该协议封锁了移民路线,阻止难民抵达欧洲(2016年,第121-40页)。此外,北方国家没有提供获得庇护的适当途径或重新安置大量难民,而是选择在全球南方提供和资助难民营,作为它们对难民的首选反应,正如我们在上面看到的那样,这带来了一种被囚禁和广泛侵犯人权的感觉(第105页)。由于这些做法,难民无法有效地获得北部各州的庇护,只能在南方国家的城市地区忍受肮脏的难民营或贫困,或者冒着生命危险前往北部各州,现在越来越困难和危险。因此,由于北方各州的做法,“我们造成了这样一种局面:绝大多数难民实际上无法获得任何有意义的庇护;也就是说,他们不能享有人类尊严的最低条件”(第159页)。对帕瑞克来说,上述两种伤害——对难民的收容和营地,以及难民无法找到避难所——代表了对难民的不公正。因此,北方各州远不是无辜的旁观者或仅仅是潜在的救援者,而是对难民的不公正负有责任。 虽然杨没有明确指出必要条件,但我们可以从她的分析中推断出,结构性不公正是:一种不公正的结果,它(1)不同于直接的个人互动造成的伤害和错误;(2)不同于由国家(或其他机构)的行为和政策直接导致的伤害和错误;相反,它是(3)(4)由(5)众多不协调的行为者和政策(6)坚持道德上可接受的目的构成的结构过程的意外后果。我现在要说明的是,由于北方国家的做法,难民所遭受的两种伤害——收容和营地,以及无法进入避难所——并不是以上述方式理解的结构性不公正。我的论点由两个相互关联的部分组成。第一个是理论-概念的主张:这些伤害不符合结构性不公正的概念标准,更准确地理解为直接的不公正。第二种是规范性的:结构性不公正方法有问题地分散了对必须解决的直接不公正的注意力,赦免了国家行为者的不法行为,并且需要一个解决不公正的薄弱责任框架,而这反过来又没有在标准的救助义务方法上提供任何进步。为了避免这种讨论的影响,如果北方各州的做法导致难民遭受的伤害是一种结构性的不公正,那么它只是一个不幸的、意想不到的结果,北方各州不应该受到指责,也不应该采取错误的行动,也不应该对难民造成直接伤害,因此这些州只有微弱的、自由裁量的责任来修改导致不公正的结构性过程。相比之下,如果这些伤害是直接的不公正,那么某些北方国家确实采取了错误的行为,并直接对难民造成了伤害,我们能够让主要的国家行为者和政策适当地解释所造成的不公正伤害,这些行为者将有紧急和强制性的消极道德责任,以避免对难民造成这种不公正。因此,这些伤害究竟是直接的还是结构性的不公正,这一点至关重要。根据我的分析,收容和安置难民以及阻止他们获得庇护的不公正结果,并不是与个人不法行为或不公正政策不同的结构性过程的意外副产品,而是代理人和具体的、有意的、(重要的)可避免的政策的直接结果。例如,看看2017年欧盟与利比亚协议的细节,以及2016年欧盟与土耳其协议。在欧盟与利比亚的安排中,难民在地中海被拦截,并被送回利比亚无限期拘留(人权观察,2018b)。这种安排有两个主要效果。第一:拘留:被截获的难民被安置在利比亚海岸的拘留中心,由包括英国在内的欧盟国家资助(D. Taylor, 2018)。这些中心过度拥挤和缺乏卫生设施导致了饥饿、疾病(特别是结核病)和死亡。包括儿童在内的难民也面临着严重的虐待:被强奸、殴打、虐待、挨饿,甚至被当作奴隶交易(BBC News, 2018;人权观察,2019)。记录在案的录像记录了难民被焚烧、致残和触电的酷刑第二个影响是遏制:这种安排阻止难民从利比亚前往欧盟,否则他们本可以在那里申请庇护并找到足够的安全。因此,它关闭了从北非到欧洲的主要移徙路线,从而将难民收容在条件恶劣的北非地区,他们的基本生存和安全需要得不到满足,他们的人权受到广泛侵犯。2016年欧盟-土耳其协议旨在阻止难民从土耳其流向希腊,其本身有两个主要效果。首先是营地:越过爱琴海抵达希腊岛屿的难民被关在营地里,没有足够的食物、住所和药品供应,人权受到广泛侵犯;这给“寻求庇护者造成了巨大的痛苦”(人权观察,2016)。在Moria营地,“污水系统不堪重负,未经处理的污水已经到达儿童睡觉的床垫”(国际救援委员会,2018)此外,身体暴力的威胁也很严重,妇女甚至儿童都可能遭受性暴力(人权观察,2018a)。营地造成的精神损失非常严重,“许多人由于经历了极度的痛苦和情感痛苦而试图结束生命”(人权观察,2018a)。 该协议的第二个影响是遏制,因为难民被禁止从土耳其前往希腊,因此这条通往欧洲安全的主要移民路线被关闭。因此,难民被困在土耳其、约旦和黎巴嫩等离其原籍国较近的地区,他们的安全和生存需求得不到满足。在土耳其,难民住在肮脏的难民营,在没有适当人权保护的城市地区面临贫困,80%的难民生活在极度贫困中(人权观察,2016;联合国难民署,2016年,第55页)。在约旦,“生活条件迅速恶化”,大量难民生活在赤贫中(UNHCR, 2017)。在黎巴嫩,70%的难民生活在极端贫困线以下,“每天都在为满足食物、水和医疗保健等最基本需求而进行巨大的斗争。" 6与利比亚的安排和欧盟-土耳其协议直接导致对难民的封锁,使他们无法获得适当的庇护,并使难民在全球南方的难民营和城市地区忍受缺乏足够的生存和安全。很明显,这种有害的结果不能被准确地描述为结构性的不公正。上述的遏制政策恰恰是:由国家和机构设计,然后故意实施的政策,其明确目的是遏制难民。在这些情况下,由成员国代表组成的欧盟理事会制定并实施了这些政策,目的是遏制难民并阻止他们进入欧洲领土。7此外,澳大利亚政府根据“主权边界行动”(Operation Sovereign Borders)将难民拦截并送回印度尼西亚或瑙鲁或马努斯岛的离岸拘留中心,是一项明确的政策(离岸政策连续趋势中的最新趋势),强行和故意拒绝获得庇护,将难民拘留在中心的虐待条件下,并将难民从澳大利亚领土驱逐到全球南方地区,在那里他们忍受难民营的生活(BBC新闻,2017;“主权边界行动(OSB)”)。美国拘留和快速驱逐寻求庇护者的政策,以及儿童分离做法,“第42条”驱逐和“移民保护”遣返协议,都是旨在阻止和阻止难民在美国寻求庇护的政策,并将这些难民限制在中美洲和南美洲。这是美国针对难民制定的连续威慑政策这一更大趋势的一部分。8 .考虑到这些例子,很明显,收容难民和阻止他们获得庇护并不是结构性进程的意外、不幸的副产品,而是北方国家行为者专门设计和颁布的明确和有意政策的直接有害和不公正的结果因此,由此产生的伤害不能被理解为结构性的不公正,而更准确地理解为对难民的直接不公正。我现在提出我的论点的第二个组成部分:反对结构性不公正方法的规范案例。在责任的结构性不公正模型中,没有一个代理人、政策或一套政策对造成不公正负有直接责任,没有代理人的行为是错误的,没有政策本身必然是不公正的,没有代理人应该为他们对不公正的贡献而受到指责。相反,这种不公正是由结构性过程造成的,超出了任何个体代理人的控制或政策贡献。然而,所有行为在道德上被允许的行为,无论以何种微小的方式,都对构成和重构导致不公正的结构过程做出了贡献,共同承担着修复不公正的责任(Young, 2010, pp. 100-10)。使用这一模型,Parekh(2017)认为,解决收容和营地的结构性不公正问题的责任,例如,由所有这些国家(以及这些国家的公民)共同承担,这些国家对国家主权和边境控制的合法追求,尽管如此,仍在构建和重构有助于长期收容难民和安置难民的结构过程(第122-5页)。我认为,这种结构性不公正方法分散了人们对直接不公正的法律和做法的注意力,而这些法律和做法本应是改革的重点,它免除了主要行为者(适当的)道德责任和对所造成的不公正伤害的问责,导致责任分配不公平,并导致了一个有问题的薄弱的责任框架,以解决对难民的伤害。首先,将难民所遭受的伤害视为结构性的,意味着在试图修正结构性进程时难以达成切实可行的目标。 所有那些非错误的小规模行为对结构过程有贡献的个人,应该如何认识到他们的行为是什么以及如何做到这一点,然后着手改变它们?正如Christian Neuhäuser(2014)所认为的,在结构模型中,没有原则的方法来分配责任和行为,使得“谁必须做什么仍然不清楚”(第242页)。更紧迫的是,(在结构模型上)没有犯下任何不当行为或采取不公正政策或直接导致不公正局面的北方各州应该如何改变他们的方式?当然,这些问题可能有答案,但它们并不明显,也不太可能带来实质性的变化。例如,学者们针对责任结构模型未能为可操作的命令奠定基础的反对意见,建立了有希望的义务和责任框架。Elizabeth Khan(2019)认为,个人无法单方面解决结构性不公正问题,但他们有预防责任采取行动,防止或减轻他们对当前和未来结构性不公正的影响,这可以通过创建和维持能够并愿意解决结构性不公正问题的适当集体来消除(第41-3页)。然而,如果将国家对难民的做法理解为一种结构性的不公正,这一建议可能会表明,单个国家无法单方面解决不公正问题,而应该形成集体来解决这个问题。这项建议显然没有提出具体的、有作用的公共政策建议,也没有明确的改革的当务之急或目标。Robin Zheng(2018)认为,我们可以通过根据角色理想以不同的方式履行我们的社会角色来履行我们的责任,这(如果按照他人的方式完成)可以帮助带来结构性变化(例如,教师可以通过多样化教学大纲的方式履行他们的角色,以纠正少数民族的系统性代表性不足)(第9-11页)。如果将国家对难民的做法理解为一种结构性的不公正,那么郑的建议可能需要北方国家行为者以有助于减轻或解决结构性不公正的方式履行其角色。这听起来很有希望。然而,正如郑所承认的,执行理想的社会角色在内容上是不确定的,并且取决于每个行动者对善的个人概念和理想的社会角色是什么(第17页)。因此,这种理解并没有指定北方国家行为体将强制执行哪些角色表现、政策或行动,也没有为国家行为体以不同于他们目前(希望)执行这些角色的方式建立激励或参数。此外,由于从结构性不公正的角度来看,没有哪个国家的行为是错误的,他们的法律或政策也不一定是不公正的或直接导致不公正的,所以这里几乎没有理由决定采取哪些行动,或者修改法律或政策是必要的行动,也没有强烈的道德要求进行改革(我将在下面回到这一点)。因此,结构性不公正方法,即使有可汗和郑的建议,似乎也不会在国家对难民的做法的背景下进行可操作的改革。相反,如果我们承认遏制难民并将其安置在难民营并拒绝他们获得庇护的具体政策是直接有害和不公正的,那么这就为改变提供了一个明确和可行的目标:修改或拒绝这些政策。例如,各国可以终止拦截难民并将其送回利比亚虐待难民的拘留中心的做法。可以禁止强迫难民在希腊岛屿上扎营,并重新安置难民营的难民。对利比亚和土耳其的遏制政策可以被认为是有害和不公正的,可以呼吁对其进行改革,以提供安全和合法的安全途径。此外,现行的将难民收容在其生命、自由和人权受到威胁的地区的政策可以根据国际法予以禁止,因为在道德上等同于(目前被禁止的)将难民驱逐到其生命、自由和人权受到威胁的地区,正如我最近在其他地方所论证的那样(Hillier-Smith 2020)。这些都是可行的必要措施,如果这些政策被适当地承认为直接的不公正并加以改革,将明显改善难民的福祉。因此,结构性模式可能会有问题地分散人们对这些当务之急的注意力,从而损害紧急改革。 事实上,人们可以进一步强调这一点,并建议,通过错误地关注结构过程和不明确的个人结构责任而不注意这些紧急改革,将使那些难民失望,如果将这些有害做法确定为直接不公正和禁止,他们的福祉和人权可以得到更充分的保护。结构不公正方法的捍卫者可能会反对,并建议,在他们的方法中,人们可以指出有助于结构进程的某些政策和做法(如上文所述),作为适当的改革主题。然而,作为回应,目前尚不清楚为什么在结构模型上,这些政策和做法应该受到改革。毕竟,没有任何政策或做法本身是不公正的,而是坚持道德上可接受的目的;正如Parekh(2020)所写:“结构性不公正源于成千上万的人根据道德上可接受的规则和规范行事的行为和政策”,而这些行为可能是“道德中立的,甚至是积极的”(第163、169页)。此外,在结构模型中,这些行为、政策或实践都不是不公正的(直接)原因,而是超出具体行为、政策和实践控制和范围的结构性过程的结果。从结构模型来看,很难看出为什么有必要改革这些道德上公正的政策和做法,而这些政策和做法对不公正几乎没有任何影响。其次,结构性不公正方法免除了对难民造成的不公正伤害的主要国家行为者的道德责任和责任,从而“让他们摆脱困境”。例如,在详细介绍了北方国家行为者拒绝难民进入北方领土的许多做法后,包括将难民监禁在利比亚的拘留中心,以及随后难民面临的酷刑、性暴力和奴役(2020年,第7页),Parekh建议,为了伤害被关在避难所之外的难民,“我们(北方各州)有责任,不是因为我们做错了什么,也不是因为我们应该为此感到内疚”,而且在责任的结构模型上,“我们不应该互相指责,也不应该因为[不公正]而指责对方”(2020年,第170页,第171页)。上述关于北方国家责任的概念有可能假设(国家集团)采取的政策,如欧盟与利比亚的安排,或欧盟对难民的营地和遏制,或澳大利亚的拦截和遣返政策——包括和拒绝庇护,导致严重的身心痛苦和侵犯无辜者的人权——没有做错任何事情或直接伤害难民。但他们只是在追求自己的合法利益,不应该受到指责。令人反感的是,这一概念未能充分追究这些主要国家行为者和不公正政策的责任,不应有地为这些行为者的任何不法行为开脱,也未能抓住他们对无辜难民造成的重大伤害和侵犯人权行为的道德责任的严重性。此外,在结构模式上,责任从这些主要行为者身上分散开来,而是分散在成千上万的人(例如,北方各州的任何和所有公民)身上,这些人的小规模贡献微不足道,无可指责。这不公平地加重了不应受谴责的行为者的责任,使他们承担了与造成不公正的主要行为者相当的责任。因此,这种不加区分的责任分配是不公正的不相称的,不仅使应受谴责的行为者免除了相应的责任,而且使不应受谴责的行为者承担了不成比例的责任,从而导致分配不公正的不公平。相比之下,在责任的直接不公正模型中,对造成不公正负责的主要行为者和政策被准确地、按比例地追究对难民造成的不公正伤害,这些行为者承担着解决不公正问题的主要责任。有人可能会反对说,直接不公正模型是向后看的,而结构模型是向前看的。在直接不公正模型中,目标是追溯因果关系和道德责任,分配责任和责任,并“要求惩罚或赔偿”;在前瞻性结构模型中,重点是解决不公正的结果本身,以及“如何在未来使事情更公正”(Parekh, 2020,第164页)。Parekh认为,结构模型的一个优点是,其目的不是挑出特定的行为者或政策来承担责任,而是更恰当地关注不公正的结果,并确定我们可以共同努力解决问题的方法(2020年,第162、170页)。 也可能有人反对,将责任归咎于直接的不公正模型将适得其反,因为一个人只会产生被告的防御,指责转换和怨恨(Young, 2010, pp. 114-7)。因此,直接的不公正模式并不排除前瞻性的改革或解决不公正的情况。相反,要查明某些有害的政策和做法是直接不公正的,并提高对其不公正后果的认识,就必须寻求改革这些政策和做法,并以更公正的政策和做法来代替它们。确定个人(特别是国家行为者)对不公正的结果负有道德责任的目的是让他们承担责任,并作为规范批评和公共道德谴责的对象,这反过来又旨在激励对某些规范的遵守,并在当前和未来的实践中抑制他们的违法行为。此外,正如Neuhäuser(2014)所强调的那样,在结构模型中同样会产生适得其反的防御。在结构模型中,由于没有行为者对不公正负有主要责任或想要承担(代价高昂的)责任,因此就有一种强烈的动机来逃避责任或将这些责任转嫁给他人,就像责备和内疚一样(第244页)。我进一步补充说,有充分的理由怀疑,单独挑出一项政策或行为者作为直接不公正和受到道德谴责的对象是适得其反的。发现一项不公正的政策或行为以及由此产生的公众道德愤怒可以产生强大的影响并改变政策。事实上,美国在边境分离移民家庭的政策就是这样一项政策,后来被放弃的部分原因是被认为在道德上是不公正的,以及随之而来的公众道德愤怒因此,结构模式在改革的有效性和前瞻性方面是否具有优势尚不明确。我最后也是最重要的一点是,结构性不公正方法的责任过于分散和薄弱,这是有问题的。Parekh批评了占主导地位的“救援责任”方法,理由是,在这种方法中,北方各州被框定为无辜的潜在救援者,他们没有做错任何事情(2020年,第158-59页),并且各州认为全球流离失所的人道主义危机不是他们的责任,并且认为任何帮助的义务都是自由裁量的(2017年,第106页)。然后,Parekh的目标是通过强调北方各州对难民的不公正负责,并通过提出一个新的责任框架来解决北方各州与这些不公正有关的问题,从而提供一种替代方法。然而,目前尚不清楚Parekh的方法是否提供了很大的进步。修复结构性不公正的责任似乎与传统的救助义务方法的责任没有什么不同,也没有更大的分量,我现在将解释这一点。在Parekh(2017)对遏制和营地的分析中,这种不公正是由于结构性过程而发生的,这意味着北方各州不应对造成这种结果负责,也没有做任何错误的事情。作为解决这种不公正现象的责任的一部分,Parekh认为,那些有联系且有能力这样做的州应该提供帮助:“(北方)各州有能力提供帮助”,并“通过避免在其领土上安置难民的成本,从营地现象中获益”。Parekh认为“我们[北方各州]负有补救责任[部分]基于能力、有效性和成本[…]我们有能力以相对较低的成本有效地提供援助”(第124页)。同样,Parekh(2020)关于解决难民无法找到避难所的不公正问题的责任概念“强调我们的责任不是因为我们做错了什么,[并且]允许自由裁量权我们可以和应该做些什么来解决这一责任”(第171页)。的确,帕瑞克建议北方各州分担解决不公正问题的责任,因为“他们在制度的建立过程中发挥了有影响力的作用”,而且“因为他们从制度中受益”,避免了“收容大量难民或处理他们的庇护申请的负担”。然而,Parekh指出,北方各州有责任解决不公正问题的一个“关键原因”是“我们(北方各州)有能力改变它”(第173-74页)。帕瑞克继续说:“在许多方面,(北方)各州就像一个人看着一个孩子淹死在一个浅池塘里——我们能够在不损害任何道德价值的情况下做很多事情”(第175页)。上述责任概念似乎与减轻难民困境的责任(如果能够以很少的成本这样做)在标准的救援义务方法上没有什么不同。 帕瑞克的结构概念同样将北方各州视为无辜的旁观者和潜在的救援者,他们没有做错任何事,也没有直接伤害难民,但他们有责任帮助难民,只要他们能够以很少的成本这样做。此外,目前尚不清楚结构模型的责任是否足以推动改革,或者是否比标准救助责任方法的责任更重要。在结构模型中,很难看出为什么行为人应该特别被迫去解决不公正问题,或者为什么他们的义务特别具有约束力。毕竟,在结构模型中,行主体没有做错任何事情,不应该受到指责,他们对所造成的任何伤害都不负有因果责任,所有的伤害都是他们无法控制的结构性过程的结果(Parekh, 2017, pp. 124-5)。那么,举例来说,为什么一个国家应该被迫帮助解决对难民的结构性不公正,而不是他们造成的,也不是他们做错了什么,也不应该受到指责,除了存在道德问题的情况,他们有能力帮助缓解这种情况?因此,在确定了北方各州与针对难民的不公正行为有关之后,我们并不清楚,由此产生的责任是如何特别强烈的,或者比拯救处于悲惨环境中的难民的简单责任更强或更少的自由裁量权,而这在某种程度上与北方各州没有联系。因此,Parekh方法的责任似乎并不比标准的救援方法的责任更强,也没有提供任何进步。事实上,一个更严重的问题出现了。正如玛莎·努斯鲍姆(Martha Nussbaum, 2010)所指出的,在责任的结构模型中,这是严格前瞻性的,如果一个代理人未能履行其减轻与他们有关的不公正的责任,他们不应该受到指责,也没有做错任何事情因此,根据Parekh对责任的解释,没有采取任何措施来解决结构性不公正的国家并不是错误的行为,也不应该因为他们的疏忽而受到指责。这意味着,在结构模型中,责任实际上比救援义务方法中的责任更自由,更不重要,因为在这种方法中,国家有基本的道德义务,如果他们可以以很少的成本帮助难民,如果他们未能履行这些义务,则在道德上是错误的因此,事实上,标准的救助义务方法似乎比Parekh的方法具有优势,因为它增加了减轻难民困境的更重的义务,不履行这些义务将是错误的。不幸的是,通过展示北方国家如何与难民遭受的伤害联系在一起,在寻求提供一种替代“救援责任”方法的过程中,parekh的方法实际上提供了一种责任框架,这种框架的约束力较弱,并允许国家在不采取错误行动的情况下不援助难民。相反,我建议,一旦我们认识到北方各州的做法造成的伤害确实是对难民的直接不公正,我们就会看到,这些国家当然不仅仅是无辜的旁观者,也不是潜在的救援者,而是对难民受到的不公正伤害负有直接责任。因此,这些州有修改或废除造成伤害的具体政策和做法的首要的、非酌情的道德责任。这种直接不公正的方法导致了具有实质性影响的可操作和切实的目标。这些责任集中在主要犯罪者身上,分配更加公平。这样的义务也更强:既然国家不公正地伤害无辜的人,这些国家就有决定性和强制性的消极道德义务来制止。这些义务特别强烈,比以很少的代价帮助难民的积极义务更强烈;而且比解决结构性不公正问题的自由裁量责任要强得多,因为各州在结构性不公正问题上没有过错。然而,有人可能会反对,可以修改结构模型,以规定更严格的责任。例如,郑(2021)认为,涉及结构性不公正的行为主体可以被追究责任,并受到“形成性道德批评”,这种批评可以作为支持性反馈,鼓励他们改进并履行自己的责任,以解决相关的不公正问题(第525页)。然而,这种形成性的道德批评并不包括对行为人的指责或制裁,也不意味着未能履行其责任的行为人行为不当。因此,这一框架似乎并没有建立或激励各国履行严格的道德义务,以解决不履行的不公正问题,这是错误的。 在另一项提案中,Khan(2019)认为,虽然不能因为过去对结构性不公正的贡献而指责代理人,但他们每个人都负有预防责任,采取行动避免或减轻未来的贡献,如果他们不履行义务,他们可以为此受到指责(第40页)。同样,Catherine Lu(2017)认为,虽然个人可能不应因对结构性不公正的贡献而受到指责,但如果他们未能履行自己的责任来解决这个问题,他们就应该受到指责(在McKeown, 2021中讨论)。因此,可汗和卢的建议将产生一个责任框架,如果不执行,这将是应受谴责的(可能是错误的)。然而,请注意,这个修订后的框架仍然不会使我们比标准的拯救责任方法更进一步,并且不会像我所倡导的直接不公正方法那样严格地承担责任因此,关于修正结构性责任模型的建议可能仍然无法建立强有力的责任或比标准的拯救责任方法更强有力的责任,以解决对难民的不公正待遇。相比之下,直接不公正方法准确地抓住了国家行为者的政策和做法与难民所遭受的不公正伤害之间的规范和因果关系,这确实是直接的不公正,因此能够为强制性的消极道德义务奠定基础,以改革或避免针对世界流离失所者的不公正的有害政策和做法。在我看来,与近期任何道德和政治哲学方面的研究相比,帕瑞克的分析更有助于从哲学上理解北方各州是如何与流离失所的难民所面临的严重伤害联系在一起的。帕瑞克的见解揭示了北方各州的做法是如何导致收容、扎营和阻止难民避难的,而这些危害代表了对难民的不公正。然而,在这篇文章中,我的目的是建设性地批评Parekh重要分析的一个方面,并表明这种不公正不是,也不应该被理解为结构性的不公正。相反,某些北方州通过围堵、扎营和拒绝进入避难所的做法,无理地伤害寻求安全的无辜难民。这是一种直接的不公正,应该被视为不公正。我个人认为,这种不公正是当代与北方各州直接相关的最严重的不公正现象之一,应该将废除针对世界上流离失所者的不公正有害做法的运动视为一项紧迫的道德优先事项。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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来源期刊
CiteScore
2.20
自引率
12.50%
发文量
44
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