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Challenging the ‘birthright lottery’ can provide a better way to view refugees

Through reframing issues, strong leaders can adopt and promote strongly humanitarian policies toward issues such as refugees. Reuters/Ari Jalal

Challenging the ‘birthright lottery’ can provide a better way to view refugees

Through reframing issues, strong leaders can adopt and promote strongly humanitarian policies toward issues such as refugees. Reuters/Ari Jalal

One of the great obstacles in securing more humane approaches to refugee issues is the perception on the part of politicians that harsh treatment of refugees is a vote-winner with at least some of their constituents.

This way of thinking hardly points to great skills of leadership. “I must follow the crowd, as I am their leader,” goes the quote. But it constitutes a problem for the policy process. There is, however, a way of tackling this, and it lies in the idea of framing.

The birthright lottery

One way of framing the refugee issue is as a threat. But another is to frame it as an opportunity to do good, to reveal what Abraham Lincoln in his First Inaugural Address described as “the better angels of our nature”.

Too often, the system of states is framed as somehow a reflection of the essences of the world, rather than as a contingent set of arrangements that in their current form are relatively novel, with specific details that demand occasional reappraisal.

Law professor Ayelet Shachar has provocatively captured one aspect of this challenge in her conception of the “birthright lottery”: in the wider scale of things, people’s chances in life to a very large extent depend on where and to whom they were born.

She argues:

Given that the vast majority of the world’s population remain excluded from well-off polities under the current birthright regime, it quickly becomes clear that neglecting their needs and interests simply because extant laws define them as nonmembers is not only morally wrong; it is also politically unwise.


Her proposed response is a birthright privilege levy. But another would be to use the idea of the birthright lottery to reframe debate around the issue of responsibilities towards refugees.

The crucial point is that through reframing issues, strong leaders can adopt and promote strongly humanitarian policies, as Angela Merkel has arguably succeeded in doing in Germany.

An unwillingness to make the effort is often the mark of a weak politician, happy to follow the nastier or meaner parts of the crowd.

Territory and refugees

The idea of territory has a venerable history.

There are arguments regularly advanced to defend the moral status of the territorial state, ranging from the claim that good fences make good neighbours to claims based on self-determination as a basis for protecting vulnerable groups from assaults by others, to claims based on the territorial state as a source of nurture for communities and social capital.

Most proponents of such arguments, however, tend to make special cases for refugees. For example, politics professor Margaret Moore has recently argued:

Even if the interest that political communities have in collective self-determination means that they are not required to accept individual people seeking to improve their lot, they must still accept refugees.

Since it is likely that countries adjacent to oppressive regimes do more than other countries to meet this obligation, other countries should strive to fulfil that duty too, by bearing some of the costs and by accepting their fair share of refugees.

There are also some important potential downsides to the nurturing of communities. Closed communities can become hothouses for the cultivation of very negative sentiments such as fear and hatred of strangers.

Even the most casual users of social media would be aware of the deep hostilities towards refugees that are routinely articulated where norms of face-to-face courtesy do not apply and the attackers can shield their ugly views behind a veil of anonymity.

A modern conception

In a globalised world, the credibility of the birthright lottery as grounds for excluding people from protection may be diminishing. And although states may still have the capacity to drive away those in need, the legitimacy of their claimed right to do so may be subject to more and more questioning.

One way of ameliorating this might be to explore whether creating regular migration opportunities for refugees could offer a wealth-creating solution, by allowing refugees access to states with labour shortages. The Nansen passport in the 1920s was designed to facilitate such movements.

Because of the potential for exploitation of vulnerable refugees, such approaches might need to be pursued with some care. But the economic case is a strong one, even if such a model falls short of providing the gains that genuine freedom of movement could offer.

The challenge, as always, is political. In Katy Long’s words, it lies in:

… persuading states that the costs of protracted displacement – of failing to solve refugee crises for generations – are not an acceptable price to pay for the illusion of migration control.

This is an edited extract from What is a Refugee? by William Maley, published by Scribe.