Stop the boats? Thinking about refugee policy and human rights

For those concerned about the human rights of refugees, there is good reason to resist this humanitarian rationale. It accepts certain rights violations as a necessary means to minimise overall the violations associated with people-smuggling: exploitation of the vulnerable and deaths at sea. As an advocate of this approach might argue, ‘If you really care about the human rights of asylum seekers, shouldn’t minimising their violation be our goal? Given that the deterrence of mandatory detention minimises those violations in the long run, we should support it.’

This conception of rights is radically distorted, however, as the land mine analogy illustrates. Fundamental human rights, such as the right to life, liberty and security of the person and the right not to be subjected to cruel, inhuman or degrading treatment, are not goals to be promoted, but side-constraints. In the case of the land mines, the rights of the injured constrain the permissible approaches to this hypothetical social problem. Locking these people up would be unjust and unacceptable, even if doing so would promote the greater social good, or minimise rights violations overall.

Similarly, in the context of refugee policy, there are alternatives to prevent people from getting on boats. Increasing our humanitarian intake. Investing in more efficient processing in Indonesia. Fostering regional cooperation, to engage asylum seekers as they get off the plane in Malaysia or Singapore rather than once they’re on boats in the Timor Sea. But more importantly, if, in the face of these alternatives, some desperate refugees continued to get on boats, hard-line deterrence would not be any more acceptable. To think otherwise, as the humanitarian rationale urges us to do, is to retreat to what Robert Nozick calls a ‘utilitarianism of rights’. On this view, rights are seen as desirable states of affairs to be maximised.  But people are not part of some larger ‘social entity’ that can make short-term sacrifices for its own long-term good. They are just individuals, whose rights are violated for some separate end. Conversely, when properly understood as side-constraints, rights reflect the inviolability and separateness of the individual.

A true understanding of and respect for human rights entails a refusal to violate those rights, even when such violation may produce other social goods. The land mine analogy exposes how impoverished our conception of human rights has become with respect to asylum seekers. Whichever reading of Abbott’s slogan appeals to you, there must be moral limits on the means to which we resort in ‘stopping the boats’.