Migrants, State Responsibilities, and Human Dignity

• Published date: 01 March 2021
• Author: Roger Brownsword
• Date: 01 March 2021
• DOI: http://doi.org/10.1111/raju.12303

Ratio Juris. Vol. 34 No. 1 March 2021 (6–28)

© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

Migrants, State Responsibilities,

and Human Dignity

ROGER BROWNSWORD*

Abstract. This article addresses two questions: First, how does the value of human dignity dis-

tinctively bear on a state’s responsibilities in relation to migrants; and, secondly, how serious a

wrong is it when a state fails to respect the dignity of migrants? In response to these questions,

a view is presented about the distinction between wrongs that violate cosmopolitan standards

and wrongs that violate the standards that are distinctive to a particular community; about

when and how the contested concept of human dignity might be engaged; and, elaborating a

three-tiered and lexically ordered scheme of state responsibilities, about how we should assess

the seriousness of a state’s failure to respect the dignity of migrants.

1. Introduction

Notoriously, questions about the responsibilities of nation states to “migrants”—em-

ploying this term in a generic sense to denote those persons who are seeking to leave

home country A and be admitted to prospective host country B (or to some interme-

diate country, C, en route to B)1—bring cosmopolitan virtue into headline tension

with local sovereignty (Spijkerboer 2010; Valadez 2010). Whatever the particular

flashpoint—whether it is the conditions in migrants holding camps (see, e.g., UN

2019), or the building of border walls, or the use of water cannon, tear gas, and stun

grenades against migrants (Corbett 2020), or allowing rescued migrants to disembark

(see BBC Reality Check Team 2020 and France 24/AFP 2019), and so on—we return

to the fundamental question: How are we to do justice to the ideal of universal con-

cern while, at the same time, respecting legitimate local difference (Appiah 2006;

Brownsword 2010a)?

1 Within this generic class, some migrants might be refugees, some might be nonrefugees; some

might be leaving home country A in fear for their lives, some in hope of a better life; some might

be fleeing postconflict situations, others might not; some migrants might be economic, others

might not; some migrants might present themselves at regular ports of entry in country B, but

many will not, and so on. For discussion of the distinction between “migrants” and “refugees,”

see Costello 2018.

* An earlier version of this article was presented at the NoVaMigra conference titled European

Values in the Charter of Fundamental Rights, held at the University of Milan, September 9–11, 2019.

I am particularly grateful to Marcus Düwell, who not only spoke to the paper on my behalf but

also responded (sometimes for himself, sometimes for me) to questions and comments from

participants: see NoVaMigra 2020. The NoVaMigra project, under which this article is here pub-

lished, has received funding from the European Union’s Horizon 2020 research and innovation

programme under Grant Agreement No. 770330.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

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Ratio Juris, Vol. 34, No. 1

Migrants, State Responsibilities, and Human Dignity

© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

Against this background of dispute and division, we might wonder, not for the

first time, how respect for human dignity bears on the legitimate treatment of mi-

grants.2 However, given that human dignity is itself a deeply contested concept,3

there is a risk that we will simply add one layer of contestation on top of another.

Nevertheless, in this article, the two questions to be addressed are, first, how the

value of human dignity, or the principle of respect for human dignity, distinctively

bears on a state’s responsibilities when it is confronted by migrants; and, secondly,

recognising that the value of human dignity is widely understood as “going deep,”

how serious a wrong it is when a state fails to respect the dignity of migrants. While

the analysis in this article will not resolve all the tensions in debates about the treat-

ment of migrants, it will offer a view about what is rightly cosmopolitan and what is

rightly local, as well as clarifying when and how human dignity might be engaged

and how we should assess the seriousness of a state’s failure to respect the dignity of

migrants.

Confronted by a stream of shocking images of migrant distress and tragedy—

most shockingly, perhaps, by the image of a young migrant boy washed up on a

Turkish beach (Smith 2015)—the international community has not been slow to re-

spond; but what that community has said is not always explicitly connected to

human dignity. For example, in the two most relevant United Nations’ global com-

pacts—one for Safe, Orderly and Regular Migration (GCSORM 2018) and the other

on Refugees (GCR 2018)—we find much about the responsibilities of nation states

and much about respect for human rights but very little explicitly about human dig-

nity. If these compacts are intended to be applications of human dignity to a pressing

global problem, they do not advertise this fact. Similarly, when 800 bioethicists re-

cently condemned the US government’s treatment of migrant children at the border

with Mexico, the charge was not so much that human dignity was being compromised

but that the state was violating “basic principles of medical ethics [which] entail re-

spect for persons, avoidance of harm, and fair treatment” (see Cook 2019b).4

Conversely, in the EU Charter on Fundamental Rights,5 while we find some very

explicit provisions about human dignity, and implicitly about the responsibilities of

member states, there is nothing directly about the application of human dignity to

the treatment of migrants.

Faced with the complexities of the migrant debate and the apparent omission to

be more explicit about the relevance of human dignity, the present analysis proceeds

in four main sections. First, in Section2 of the article, we consider the aforementioned

UN global compacts. Three features of these compacts are striking: first, the emphasis

2 See Collste 2014, 461, who, taking a human rights view, is guided by two meanings of human

dignity: “first, the intrinsic and equal value of each human being; and, second, a dignified life,

i.e., a life lived under decent conditions.” The arguments stack up on the cosmopolitan side but

Collste’s conclusion is the practical one that both “points of departure require more powerful

global institutions that can enforce the laws” (ibid., 467). For a glancing reference to the relation-

ship between dignity, rights, and refugees, see Milbank 2013.

3 For the landscape of human dignity, see Düwell, Braarvig, Brownsword, and Mieth 2014. On

the notion of an essentially contested concept, see Gallie 1956. On human dignity as a contested

concept, see Dresser 2008; Grimm, Kemmerer, and Möllers 2018.

4 Linking to the full text of the bioethicists’ letter (see Bioethicists 2019).

5 Published in the Official Journal of the European Communities (OJ C 364, 18.12.2000), available at

https://www.europ arl.europa.eu/chart er/pdf/text_en.pdf.