A ‘basket of goods approach’ as an alternative to strict legal distinctions between migrants and refugees

Abstract

A lot of the normative literature on the duty to protect refugeessets out from the assumption that refugees’ reasons to migrateare qualitatively distinct from other migrants’ reasonsand that it is possible, with reasonable certainty, to assess which individual falls within which group. In this article, I attempt to show that not only is it impossible to pin down a qualitative difference between refugees (under the current legal definition or under any other proposed definition) and other involuntary migrants, it is also impossible to distinguish between political, economic and environmental causes for migration. In addition to that, it is impossible to draw a clear line between involuntary and voluntary migration. While migration law might be condemned to rely on trigger points beyond which people are included in a category of special protection, the normative debate about where to locate this point would improve if it setout from the consensusthat it necessarily remains a fictitious point. Once this is acknowledged, the normative debate on involuntary migration can be redirected towards procedures that assess the voluntariness of individual migration decisions and the need for protection in individual cases on a gradual spectrum. I argue that a central criterionin this procedure should be the relative value that the good “control over one’s own migration” has in the basket of goodsof potential refugees. The higher they value this good, the stronger theirclaim to be included ina special status of protection.