Protecting the Right to Have Rights: Defending the Enfranchisement of Refugees

ABSTRACT

In this article I challenge the interpretation of refugees as passive beneficiaries of political decisions and make a case for their enfranchisement. Starting from literature regarding the boundary problem of democratic theory, I make a republican case for including refugees in the demos. My novel approach emphasizes that bestowing electoral rights upon refugees is a separate question from offering them full citizenship. Enfranchising the refugees is a separate, and temporary prior measure of ensuring that their freedom is protected and that their rights are not imperiled by arbitrarily imposed decisions, at least in a world which is operating under a regime of controlled, closed borders. This preoccupation with feasibility constraints also aims to separate this article from recent contributions that defended the enfranchisement of refugees.

I. INTRODUCTION

At the end of 2019, the number of refugees under the United Nations (UN) Refugee Agency’s mandate amounted to 26 million.¹ This figure does not include the 4.2 million asylum-seekers awaiting the official recognition of their refugee status, or the staggering 45.7 million internally displaced persons.² At the end of 2022, 108.4 million persons were forcibly displaced.³ Out of these, 35.3 million were refugees.⁴ The continuing war in Ukraine, and the emerging crises in Gaza or Sudan, are bound to increase that number even further in 2023. Not only is the number of people seeking protection elsewhere higher than ever, but the latest statistics provided by the UN also show a decreasing number of returnees. Thus, while a couple of decades ago 1.5 million refugees were returning annually to their country of origin, today fewer than 400,000 refugees can do so each year.⁵ Last but not least, the Taliban takeover of Afghanistan in August 2021 led international organizations such as the UN Refugee Agency to issue a non-return advisory: “a moratorium on forced returns to Afghanistan would need to stay in place until the situation in the country has stabilized, pending an assessment of when the changed situation in the country would permit return in safety and dignity.”⁶

What is more, the 26 million refugees mentioned beforehand fall within the definition offered by the Convention Relating to the Status of Refugees of 1951. According to that definition, a refugee is someone who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.⁷

Much of the literature on the ethics of refugees argues that the United Nations High Commissioner for Refugees (UNHCR) definition of refugeehood is too narrow, and that it does not accommodate the multiple other legitimate grounds for requesting asylum.⁸ In 2015, Matthew Gibney approximated that defining refugees as persons whose country of origin is unable or unwilling to protect their fundamental human rights could have more than doubled the then 17 million refugees as defined under the UN Convention.⁹

Normative disagreement concerning the definition of a refugee aside, a distinct research question concerns our duties towards refugees. Far from being only a philosophical point of contention, the content of our moral obligations has become a matter of policy that continues to generate new dilemmas for practitioners and decision-makers. The ongoing rampant coronavirus (COVID-19) pandemic presented a new challenge, as refugees had been—at least at first—omitted from national strategies¹⁰ despite UNHCR representatives arguing that “including refugees in the vaccination rollout is key to ending the pandemic.”¹¹ In February 2021, Jordan became the first country to open a vaccination center in a refugee camp, and many other countries followed suit.¹² However, the inclusion or exclusion of refugees in the immunization program was itself a decision external to the refugees. One could argue that taking into account the novelty and urgency of this epidemiological crisis, even citizens were not involved in deciding the priority rules for vaccinations. As such, refugees were no different from other persons who counted among the worst-off individuals in a country and for whom a COVID-19 infection could have had life-debilitating consequences.

Nonetheless, this is not an isolated case. In the vast majority of countries, refugees are constantly excluded from the decision-making processes. When it comes to refugees’ lack of agency, the more appropriate comparison is to other categories of denizens, or persons who inhabit a country without having citizenship. For instance, Victoria Costa mentions that “significant interests of immigrants are not fully protected, even when they have important legal rights in that territory [because] they lack important political rights, and for this reason government officials do not have sufficient incentives to give proper weight to their interests in their decisions.”¹³ The 2018 Global Compact on Refugees says nothing about electoral rights for refugees. While it does endorse “durable solutions” such as voluntary repatriation, resettlement, admission to third countries, and local integration, discussion regarding integration does not reference the potential enfranchisement of refugees qua refugees.¹⁴

Ignoring the voice of refugees is not only an empirical feature, but has long served as the norm in the literature. David Owen writes that “what makes the refugee status exceptional is that refugees are entitled to the protection of a state which is not their own, in the context of a predominant norm of global governance that states are fundamentally responsible to, and for their own citizens.”¹⁵ Arianne Shahvishi grounds her argument for automatic citizenship for refugees by outlining a parallel between refugees and infants.¹⁶ Joseph Carens denies that refugees can choose the country of destination.¹⁷ Gibney considers that refugees “should be able to settle in a country where they have a good chance of flourishing,” but rests his argument on the idea of “refugees as orphans of the international community.”¹⁸ On the other hand, at the cost of limiting the category of persons who should be granted asylum, Matthew Price constructs a defense of granting full membership to persecuted people.¹⁹ Given that refugees lost their place in their original political community, he defends extending membership as a way of fulfilling their “need for political standing.”²⁰ According to Price, “the bonds of political membership having been sundered, these victims of persecution need not only protection abroad, but also surrogate membership.”²¹ Recently, several arguments have surfaced that propose enfranchising refugees.²² Real world examples include countries such as Scotland, which granted electoral rights to refugees.²³

In this article I advance a defense for the enfranchisement of refugees based on a republican approach. I begin by presenting the main positions concerning refugee enfranchisement. Then, I engage with the existing republican literature concerning refugees. Lastly, I provide new arguments from within republicanism for extending the right to vote to this category of denizens. In doing so, I attempt to anticipate and accommodate potential criticisms that could be raised against such a measure, focusing first and foremost on the fact that such a proposal would blur the line between citizens and non-citizens. This emphasis on feasibility constraints serves as the main original contribution of this article, distinguishing it from much of the recent literature arguing for enfranchisement (while in this article my main focus is on how separating citizenship from voting rights would make the enfranchisement of refugees more feasible, in a distinct article I discuss why enfranchising refugees in general would constitute a feasible, as well as desirable, matter of public policy).²⁴

II. THE BOUNDARY PROBLEM AND REFUGEES

In modern democratic states, there is an expectation that once you reach a certain age, you will be part of a group of people entitled to have input regarding public affairs. The Webster definition of democracy—“people’s government, made for the people, made by the people, and answerable to the people”²⁵—has become so prevalent that we often take for granted the fact that as citizens of a certain country we are considered part of “the people.” But who the people are is not always an unchangeable feature of the political landscape. For instance, the introduction of European citizenship in the 1990s meant that anyone who was a citizen of a member state of the European Union also gained the right to vote in local and European elections.²⁶ This represented a departure from the long-standing practice of equating the demos²⁷ with the nation or with the state.²⁸ Democratic theory has also struggled to provide an answer to the question of how the democratic body should be constituted. This endeavor has become known as the boundary problem: “democratic theory cannot itself provide any solution to disputes that arise concerning boundaries [ . . . ]. Democracy [ . . . ] cannot be brought to bear on the logically prior matter of the constitution of the group, the existence of which it presupposes.”²⁹ Robert Dahl reached a similarly pessimistic conclusion, and argued that “we cannot solve the problem of the proper scope and domain of democratic units from within democratic theory.”³⁰ In short, as Gustaf Arrhenius concludes, “the criteria by which to identify the members of the people entitled to participate in collective decisions have been surprisingly difficult to pin down.”³¹

How do we avoid the risk of infinite regress³² that stands at the heart of the “paradox of a self-constituting people?”³³ Three main answers have been advanced so far: the all-affected interests principle,³⁴ the all-subjected to coercion principle,³⁵ and the citizenship stakeholder principle.³⁶ Each of these approaches—in their numerous variations over the years—tries to offer a proper response to the question of who should be included in the demos. Various iterations of the all affected interests converge in considering that “protecting people’s interests is the most plausible candidate principle for bringing the who and the how of democratic politics into alignment. The principle dictates who should constitute the decision-making group (all affected interests should have a say). It also dictates how the group should be governed (democratically).”³⁷ Some argue that such an interconnected world may lead to too many people being included in the demos, and in effect “you have a case for giving just about everyone in the world a vote.”³⁸ In response to these criticisms, the all-subjected to coercion principle has been put forward. According to Dahl’s initial formulation, “every person subject to a government and its laws has an unqualified right to be a member of the demos.”³⁹ Normative defenses of the all subjected to coercion principle have relied on autonomy-based arguments⁴⁰ or on protection from domination.⁴¹ Rainer Baubock considers that the two principles of democratic inclusion provide an incomplete depiction of the landscape of normative principles that give an answer to the inquiry of who should be included in the demos. While the all-affected interests principle concerns policies, the all subjected to coercion principle looks to the government. When we get to the level of political community, Baubock argues that we need to employ what he calls the stakeholdership principle: “all whose individual autonomy and well-being depend on the collective self-government and flourishing of a polity have a claim to citizenship in that polity.”⁴²

All three principles of democratic inclusion are compatible, or even lead to the inclusion of refugees in the demos. Sarah Song mentions that the all affected principle and the all subject to coercion principle “support expanding the demos to include not only resident noncitizens but also non-resident non-citizens who have basic interests affected by or are subject to the coercion of a particular state.”⁴³ According to Song, both principles lead to the conclusion that “all resident noncitizens should have rights of participation in the polities where they live and work.”⁴⁴ This would, of course, include refugees. Baubock’s principle of including all those who have a stake in a political community’s development applies quite explicitly to “refugees and stateless people who lack any protection through a citizenship of origin.”⁴⁵ The justification offered is twofold:

First, each individual’s autonomy or well-being depends to a large degree on how well political institutions work in guaranteeing equal liberties and in providing equal opportunities for all subjected to their authority. Second, citizens can collectively shape the future course of the polity through political participation and by holding political authorities accountable.⁴⁶

Furthermore, no arguments have been advanced against enfranchising refugees. Instead, the matter of whether to formally include refugees into the legitimation pool by endowing them with the right to vote is mostly absent from debates surrounding electoral exclusions. In literature regarding the boundary issue, Baubock’s articles are the main exception. Expanding the domain, one can see that in literature on refugee ethics we find the widespread claim that refugees are more vulnerable than other categories of denizens, which in turn triggers distinct moral obligations. Even a staunch supporter of a state’s right to control their borders and adopt exclusionary immigration policies can see the indisputability of the claim that “refugees are people toward whom states have more stringent obligations than toward immigrants in general.”⁴⁷

Indeed, quoting Michael Walzer⁴⁸ and David Miller,⁴⁹ Chandran Kukathas mentions that “all but the most insistent defenders of closed borders or restricted immigration make an exception for refugees.”⁵⁰ Felix Bender identifies the fundamental difference between refugees and other groups of immigrants in the exit options possessed by the latter, and the fact that refugees lack “alternatives to subjecting themselves to the political rule of their host countries.”⁵¹ Matthew Lister considers that “features of refugees ground obligations in all states to admit them,” with the states having the duty to search for “durable solutions (permanent resettlement and eventual access to full membership in some safe new state), even if the state in question otherwise allows for no discretionary immigration.”⁵² Walzer also argued that “there is one group of needy outsiders whose claims [ . . . ] can be met only by taking people in. This is the group of refugees whose need is membership itself [ . . . ].”⁵³ The only alternative to the “virtually undeniable claim of asylum” would be “to use force against helpless and desperate people.”⁵⁴ But even in some of these arguments there is no genuine endorsement of granting voting rights to refugees. In a later article, Miller mentions that when it comes to immigration policy we should:

distinguish between the policy itself being coercive, and the coercive means being used to enforce it. When people are prevented from entering a country by immigration controls, a significant opportunity is often being denied them, but it does not follow that their lives are being shaped and potentially dominated by the legal system of the country they are trying to enter in the same way as those who are already living under that system. So why should exclusion per se, independently of the means used to enforce it, be regarded as coercive?⁵⁵

Afterwards, he acknowledges that this argument does not hold when it comes to refugees. Miller agrees that individuals who seek asylum do not have other options. However, he also claims that “what gives the migrant a claim is her specific vulnerability, not the fact that [the state] is coercing her. So it is hard to see how the all subjected to coercion [principle] can be applied in such a case.”⁵⁶

Indeed, what all these normative proposals have in common is that refugees are seen as “orphans of the international community.”⁵⁷ The shortcoming is that being dependent on the goodwill of a host community is not necessarily a stable situation, or one that is morally appealing. It was for this reason Hannah Arendt treated refugees similarly to stateless persons, as they both lack “the right to have rights, the right to belong to some kind of organized community.”⁵⁸ From a democratic perspective, it is the electoral rights that safeguard this postulated right to have rights.

Things are not much better once we switch over to current practices. International law does specify that “the refugee status ends either when the refugee has gained a new nationality through naturalization or when the convention no longer applies.”⁵⁹ This law exists within the confines of the non-refoulement principle, which “prohibits states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.”⁶⁰ Furthermore, Global Compact on Refugees (the Compact) lists as “durable solutions” for refugees voluntary repatriation, resettlement, admission to third countries, and local integration. However, although the local integration solution specifies numerous ways in which refugees should be integrated in the host country (from vocational training to solving documentation issues), it does not include electoral rights. The Compact mentions that “some host countries may elect to provide other local solutions to refugees,”⁶¹ but in no way hints at the enfranchisement of refugees. Some destination countries have indeed done more than what was required of them under the Compact. For instance, in 2020, Scotland extended the right to vote to “all foreign nationals with leave to remain, including all those granted refugee status.”⁶² The justification for this was that “this bill reflects the reality of modern Scotland: a nation committed to robustly meeting our duties to the treaties that safeguard our human rights, that welcomes those who seek to join our society, and gives a democratic voice to the most marginalized in our communities.”⁶³

What would enfranchising the refugees achieve? For one, “it would help migrants and refugees integrate in the host countries as well as give them dignity.”⁶⁴ Secondly, it would be “of enormous symbolic importance, sending the message of equal treatment.”⁶⁵ Furthermore, “if a country has accepted that a person needs refugee protection, that person should then have a say over how services are provided to refugees by the authorities.”⁶⁶ Last but not least—and in anticipation of future discussion—enfranchising refugees would also serve the goal of safeguarding freedom as non-domination.

In the last couple of years normative proposals for enfranchising refugees have started to take hold in the literature, unified in their republican approach. As Costa mentions, republicanism seems a good fit for explaining what is wrong with the way refugees and asylum-seekers are treated under the current refugee system: “the problem is that they are subject to harmful forms of interference when they try to reach the territories of wealthy states.”⁶⁷ Meghan Benton defends the enfranchisement of denizens—including refugees—on the grounds that “a refugee is clearly not going to have their interests tracked by their home government,”⁶⁸ and that “denizens are vulnerable to domination if they are subject to power insufficiently checked by accountability mechanisms” provided also that “their costs of exit from the status of denizenship are high.”⁶⁹ Fine mentions that “even if the most basic subsistence needs are met, the problem of domination still persists so long as people do not have access to membership and the proper protection of a state.”⁷⁰ Lastly, Rebecca Buxton criticizes the current refugee regime because “the UNHCR does not offer refugees a formal route through which to participate in or challenge its internal decision making,” and considers it a problem that refugees “do not have a democratic say in the institutions that govern them.”⁷¹ This literature represents a departure from previous dialogue positioning refugees as mere “orphans” of the international system and moves it towards conceptualizing them as persons who have to be included in the legitimation pool. In the next section I evaluate the arguments put forward from within the republican literature for enfranchising refugees. After that, I raise the stakes and argue that the goals of republicanism cannot be served without endowing refugees with electoral rights.

III. THE REPUBLICAN CASE FOR ENFRANCHISING REFUGEES

How could this proposal be defended? On the one hand, there are arguments that speak in favor of granting electoral rights to all resident aliens. Song considers that two prominent conceptions of democratic legitimacy, the all-affected principle and the coercion principle, justify extending political participation to all residents, since they have “their basic interests affected by or subject to the coercive power of the state.”⁷² The alternative would be “to leave resident aliens without political voice.”⁷³ Similarly, Ludvig Beckman argues that the all-affected principle justifies the enfranchisement of resident aliens.⁷⁴

Baubock’s stakeholdership model can easily be extended to refugees. One of the premises of the model is “that citizens of a self-governing polity share at least a presumptive collective interest in preserving its autonomy and contributing to its flourishing.”⁷⁵ He mentions that the qualifying conditions for determining which individuals “have a stake that is significant enough to create a corresponding obligation for the political community to offer them citizenship” have to be “grounded in the individuals’ circumstances of life, rather than merely a subjective preference for membership in a particular polity.”⁷⁶ He further proposes two indicators for his “probabilistic future-oriented conception of stakes,” the dependency criterion (the extent to which an individual requires the support of a certain community in order to ensure an efficient protection of their rights) and the biographical subjection criterion (the extent to which a community has exerted its authority over them for an extended period of time). Baubock states that, while “the dependency criterion applies to all current citizens living in the jurisdiction,” it also sets the groundwork for the inclusion of “refugees and stateless people who lack any protection through a citizenship of origin.”⁷⁷ Furthermore, this model “assigns a responsibility to particular states for offering them substitute citizenship.” While Baubock argues this substitute citizenship should not be offered immediately, he acknowledges that it “does imply a duty of states to take in refugees and to offer them full citizenship.”⁷⁸

On the other hand, some arguments focus solely on the moral requirement of enfranchising refugees (and not other categories of denizens). Bender, for instance, rejects the approach of “merely answering whether non-citizens generally should be enfranchised,” as refugees represent “a special case” so “the question of their democratic inclusion requires the consideration of questions that are specific to them.”⁷⁹ The main difference between refugees and other categories of immigrants lies in the fact that the former have no meaningful exit options: “where other immigrants can avoid subjection to rule, refugees cannot.”⁸⁰ Furthermore, Bender hints at the fact that there are more aspects of a refugee’s life that are subject to interference: “from laws governing their reception conditions, to rules impacting their everyday lives during their stay.”⁸¹ According to his all-subjected argument, “all those subjected to political rule in a given territorially bounded political unit should have a say in such rule and interpret subjection to rule not as being subject to potential coercion with regards to specific decisions, but as subject to continuous threats of coercion.”⁸²

Bender’s case for enfranchising refugees shares some similarities with the political picture of refugees presented by Owen. According to Owen, there are two ways of conceptualizing refugeehood.⁸³ The humanitarian picture “identifies refugees as subjects within the general domain of an ethics of rescue.”⁸⁴ Alternatively, the political picture underlines the uniqueness of the harm which was done to them, namely the fact that they had been denied political standing as members of a state.⁸⁵ For Owen, the international system requires “legitimacy-repair mechanisms” to maintain its moral integrity.⁸⁶ This mechanism is the refugee regime, “in that the institution of refugee-hood provides a route by which a specific class of those who are subject to non-conforming states can be provided with protection.”⁸⁷ Furthermore, reflecting Arendt’s idea of “a right to have rights,” Owen argues that “in a world in which effective state membership is a practical condition of political standing, it is a duty of the international order of states to ensure that all persons enjoy such standing.”⁸⁸ That is because, for Owen, a refugee is someone whose basic rights can be guaranteed only if the international society of states acts “in loco civitatis, supplementing the state.”⁸⁹ The same idea stands at the heart of Price’s approach: “the bonds of political membership having been sundered, these victims of persecution need not only protection abroad, but also surrogate membership.”⁹⁰ This surrogate membership is necessary because “we can safely count on the continued recognition of our entitlements to rights only as members of states.”⁹¹

Another perspective on why refugees ought to be enfranchised, which seems to have become the dominant perspective in the recent literature, is best articulated by the neo-Roman republican defenses of granting political rights to refugees. The revival of the republican approach in the late 1990s focused on establishing an institutional framework that maximizes freedom as non-domination.⁹² For Philip Pettit, we deal with domination when someone can arbitrarily intervene in another person’s choices.⁹³ Pettit and republicans in general are worried both with the interference of other citizens and with the interference of the state. To that end, Pettit proposes several institutional reforms that can protect an individual’s freedom, many of them focused on the potential for contesting the decisions of authorities. To safeguard an individual’s liberty, Pettit highlights the importance of mitigating the impact of invading hindrances:

whenever another person imposes their will on you, allowing you to choose only within limits that they dictate or only on conditions that they decide, their hindrance certainly targets your ability to satisfy your will and constitutes an inherently inimical assault. The imposition of their will entails the displacement of your will.⁹⁴

Attaining legitimacy in a republican state requires the availability of channels open to you through which to oppose laws or policies that imperil your freedom. Challenging potentially arbitrary decisions imposed by the state is at the heart of Pettit’s republican project. One way of exercising contestation is by “opening up channels of consultation and appeal between the public and the legislature, establishing a system of courts in which challenges to the law can be heard and decided, appointing independent bodies in ombudsman roles, recognizing constraints of rule of law and due process.”⁹⁵ The other is by what Pettit calls “controlled interference,” the idea that “the people governed by a state control the interference practiced by government—if they control the laws imposed, the policies pursued, the taxes levied—then they may not suffer domination at the hands of their rulers and may continue to enjoy their freedom in relation to the state.”⁹⁶ In turn, this is meant to ensure that any interference in an individual’s life follows the principle of non-arbitrariness. Pettit holds that an interference can be deemed non-arbitrary when it is “checked,” when it “tracks the avowed or avowal-ready interests of the interfere[d].”⁹⁷

However, in spite of the fact that republicanism seems ripe to account for the enfranchisement of refugees, it was only recently that this move was made on a theoretical level. Pettit, for instance, is preoccupied with how equally shared influence can be exercised by citizens. For him, it is “the citizens of a legitimate state [who] have access to enjoy equal access to a system of popular influence [which] gives the state an equally acceptable direction— that is, a direction that they are all actually disposed to accept.”⁹⁸ Of course, originally the main branches of republicanism—including the neo-Roman variety—were intertwined with the concept of citizenship.⁹⁹ Nonetheless, there have long existed arguments in which freedom as non-domination, the concept which forms the nexus of neo-Roman republicanism, is based on a more fundamental principle, that of equal respect for persons.¹⁰⁰

It is for this reason that recent approaches have taxed this direction of mainstream republicanism and tried to plead for an expansion of political rights.¹⁰¹ Costa (2020) emphasizes the fact that Pettit justifies immigration restrictions as the admission procedures would count as vitiators, not invaders of freedom.¹⁰² For Pettit, the difference between them is that invaders are marked by intentionality, whereas vitiators are incidental; as such, vitiators are defined as “any factors [ . . . ] that impair or impede your capacity to use your resources for satisfying your will but without deriving from the intrusive will of another agent or agency.”¹⁰³ As such, their impact upon an individual’s freedom would be much more limited and would constitute an unobjectionable moral trade-off, considering that the alternative would be an open border policy that invites malfunction or collapse. Costa criticizes the usage of “two distinct understandings of what makes interference count as arbitrary: one for citizens and another for non-citizens.”¹⁰⁴ But there is nothing in Pettit’s account which would endorse such a distinction. Furthermore, in the case of refugees, they are “subject to harmful forms of interference when they try to reach the territories of wealthy states.”¹⁰⁵ This means that admission procedures share more with invaders than with vitiators of freedom. A similar view is shared by Buxton, who argues that especially temporary protection places refugees “in a particular position of vulnerability to domination,” which is further worsened by the fact that the states do keep the right to expel refugees under certain circumstances.¹⁰⁶ Furthermore, Buxton argues that the refugees’ lack of democratic voice constitutes a compelling reason to consider the asylum regime arbitrary:

Refugees do not receive the right to vote in their state of asylum and are often unable to participate in elections in their state of origin. UNHCR does not offer refugees a formal route through which to participate in or challenge its internal decision-making. As a general rule, refugees do not have a democratic say in the institutions that govern them and have no alternative political institutions to call upon. They also did not consent to living under institutions with no political voice.¹⁰⁷

For most refugees, return is not going to be a feasible solution. The crises which made them flee their countries of origin span decades.¹⁰⁸ Even if the situation stabilizes to a certain degree, there is something perverse in making people who have been harmed in a society return to that society. It is no surprise that normative approaches have most recently focused on the importance of looking prospectively at someone’s length of stay in a host country, since “only granting [refugees] the right to remain gives them a secure opportunity to build a new, autonomous life.”¹⁰⁹ Not only that, but the admission procedures themselves are marred by arbitrariness. In addition, “refugees are vulnerable to arbitrary exercises of private and public power, and unlike voluntary migrants do not have meaningful access to the type of protections that may be offered by external citizenship rights (diplomatic protection and right to automatic re-entry to home state).”¹¹⁰ What’s more, Owen considers that even if the prospects for voluntary return to the country of origin arise, it is morally problematic to spend several years with no political rights.¹¹¹ Yet Owen also considers that republican theory cannot capture the arbitrariness of disenfranchising refugees because it is too focused on citizenship, which entails that “even the question of the constitution of citizenship—who is entitled to it and under what terms and conditions—is treated as an unproblematic given.”¹¹² This way, republicanism loses sight of the fact that the way the international refugee system works fails two legitimacy tests to which any civic status is subject:

that it does not make its bearers more vulnerable to the arbitrary exercise of public power and that the constitution of the person as bearer of this status is not itself the product of an arbitrary exercise of public power.¹¹³

And yet, we have seen that there are republican approaches which endorse the enfranchisement of refugees. I believe that they are consistent with the spirit of neo-Roman republicanism, and that much of the normative disagreement concerning this subject could be avoided if we disconnected the concept of citizenship from that of voting rights. While there may be very good reasons for granting accelerated citizenship to refugees—or even automatic citizenship, as Shahvishi argues¹¹⁴—the specific vulnerabilities of refugees that increase the risk of domination and result in arbitrary interference in their lives can be pushed aside if we granted them the right to vote.

IV. VOTING RIGHTS WITHOUT CITIZENSHIP

Given that republicanism is a theory that largely focuses on the state, there seems to be an implicit assumption in many of the republican accounts of refugees that membership is also necessary to avoid domination. Would enfranchising refugees necessarily entail granting them citizenship? My answer is that it does not. Indeed, Shahvishi constructs an argument according to which refugees ought to be granted automatic citizenship because, similarly to infants, “they have urgent needs, their needs can easily be met by the state they just entered, and the state they have just entered is a morally appropriate place for their needs to be met.”¹¹⁵ She calls such an expansion of citizenship a form of “moral consistency,” and argues that

by citizenship I mean access to public services such as healthcare, education, housing and welfare, the right to work, the right to remain in the state without fear of being returned and to be readmitted, should one travel abroad, the right to vote and stand for office.¹¹⁶

Szabolcs Pogonyi (2014) also calls voting rights “an essential part of citizenship.”¹¹⁷ This position, however, does not seem to be the dominant one, especially because, conceptually and practically, the concepts can and have been distinguished. Protecting the “right to have rights, the right to belong to some kind of organized community”¹¹⁸ can be accomplished by expanding electoral rights without tampering with the normal process through which a person gains citizenship. Starting from Jean Cohen’s¹¹⁹ separation of the political and legal aspects of citizenship, Beckman mentions that separating

citizenship from political rights does not deny a privileged status for citizenship for other purposes. Citizenship typically involves numerous social, legal and symbolic rights such as the right to remain securely within the borders of the country and to receive protection and assistance from the government when abroad.¹²⁰

Thus, the more modest position—which would also be more appropriate from a feasibility standpoint—would be to grant refugees electoral rights, whilst leaving citizenship to be obtained via traditional processes such as naturalization.¹²¹ The empirical data show that this is indeed possible. For example, Scotland extended the right to vote to “all foreign nationals with leave to remain, including all those granted refugee status” in 2020.¹²² Furthermore, the Scottish Refugee Council mentioned a potential inclusion of asylum-seekers in the demos.¹²³

This is also in line with Bender’s argument that “political rights can be had without possessing citizenship.” In his words:

[W]hat matters is that immigrants are, just like citizens, subject to rule. Without political rights, non-citizens would lack the power to participate in shaping the conditions that govern their lives. Citizenship does not matter for the right to political participation from a normative point of view. This is because citizenship provides persons with a specific legal and not a specific political status. The rights conferred to persons as citizens go over and above the right to political participation.¹²⁴

Bender puts forward the fact that many citizens are already excluded from the right to vote as proof that the two statuses can be dissociated: “citizenship does not automatically guarantee the right to political participation. Citizens only possess such a right because they are subjected to rule. Political rights can be had without possessing citizenship.”¹²⁵ Song raises a similar argument, advocating for the disaggregation “of the legal status of citizenship from many of the rights associated with citizenship.”¹²⁶ In her words, what matters on the one hand is that “persons, not citizens, are the proper subjects of political morality,” on the other, that a potentially boundless demos has to be tempered by a condition of territorial presence.¹²⁷

Although many neo-Roman republican accounts do focus on citizens, there have been arguments put forward advocating an approach based on a preoccupation with the freedom as non-domination of persons. When someone’s presence on a state’s territory subjects that person to increased chances of domination, republicans should have at least a prima facie concern that those persons have access to instruments that can ultimately prevent any form of private or public private interference. In fact, the very essence of a republican society might be threatened by the existence of a large group of individuals who are disenfranchised, who are left in a situation of increased vulnerability, and depend on the goodwill of others and on the vagaries of the international community’s reforms of the asylum policies.

An argument can be put forward regarding the relation between voting rights and republicanism similar to the one advanced by Heather Lardy, in which “the denial of voting rights to those who lack legal citizenship status is not easily reconciled with the accounts of the value of political participation provided by either liberal or communitarian theory.”¹²⁸ In a world of increasing international migration, the exclusion from the electorate of large numbers of resident aliens is a matter of deep concern. Their exclusion can only serve to intensify the sense of isolation experienced by non-legal citizens, and to weaken the democratic legitimacy of the political communities from which they are excluded.¹²⁹ For Lardy, the two aspects—citizenship and the right to vote—can and should be disjointed.¹³⁰ The same assumption of dissociation between the two concepts is shared by Baubock’s stakeholdership principle: “a stakeholder conception does suggest a distinction between the demos, consisting of all those who have the franchise, and the citizenry, composed of all who have a stake in being members of a transgenerational political community.”¹³¹ Both Baubock’s stakeholdership principle and republican variants of the all subjected to coercion principle endorse the enfranchisement of refugees. In Baubock’s interpretation of the all subjected to coercion principle, to qualify as democratic the protection of rights through government institutions must include rights to contest government authority and decisions.¹³² In other words, democratic institutions must not only provide equal protection to those subjected to them, but must also open up channels for contestation.¹³³ For this, one need not be a citizen.

But if we cut the ties between citizenship and voting rights, what is still unique to the former? Feasibility constraints require us to identify those aspects which remain within the realm of citizenship, whether they are benefits accruing to people who have held that status from birth or who have gained it through naturalization. In Baubock’s discussion of external voting rights we can find such benefits: the “right to diplomatic protection and the right to return.”¹³⁴ Song mentions that, “as a descriptive matter, the claims about citizenship’s devaluation [by such a measure] are in certain ways overblown. Citizens enjoy a right to remain, whereas noncitizens, including legal permanent residents, are subject to deportation for relatively minor crimes.”¹³⁵

Enfranchising refugees would also be compatible with what John Finnis called the “core constitutional distinction between nationals and aliens,”¹³⁶ the fact that aliens represent “conditional subjects,” i.e.:

the political community need not unconditionally accept the risk presented by aliens. That is, the presence in the community of an alien who, individually considered, can be said to present some genuine risk, even relatively slight, to the rights of others, or to national security, public safety, the prevention of crime, the protection of health or maintenance of public order, need not be accepted.¹³⁷

Enfranchising refugees does not mean that states would have to accept all asylum seekers on their territory and it does not entail a normatively superior definition of refugeehood than the one currently accepted by international law. All it requires is that, once someone is granted refugeehood in a country, the person can vote and protect their freedom through the battery of instruments that have hitherto been reserved for a subset of the citizens of that country.

What to make then of arguments such as the ones put forward by Iseult Honohan, who develops a republican-based account of the all-subjected principle that is based on the notion of citizenship? According to her, achieving non-domination “depends on mutual recognition by citizens of one another as equal and of non-domination as a common good that can only be realized collectively, depending on citizens internalizing the value of non-domination as well as having the standing to contest laws and policies.”¹³⁸ However, Honohan also mentions that the demos is achieved through “practice or even the open possibility of collective public interaction,” as “the demos is a relatively stable set of people who face a common predicament, share common risks and common goods, who may realize the possibility of securing non-domination and jointly exercising some collective control over their lives.”¹³⁹ The risk of domination is exacerbated the longer a person resides in a community. This is why Honohan argues in the end that “the bundle of rights and duties we conventionally associate with citizenship may be subject to certain kinds of disaggregation” and why she considers that “the protections of citizenship may need to be applied more widely and in a more capacious time-frame than membership of the demos.”¹⁴⁰

Another point that has to be emphasized is that, although references to citizenship abound in republican literature, this might be a vestige of traditionalism and does not constitute part of the nucleus of neo-Roman republicanism. The spirit of republicanism seems to be much closer to a state of affairs in which people thrown unwillingly out of their political community seek to find a good and free life. After all, Pettit’s original depiction of domination is all-about “the freedom of the city, not the freedom of the heath.”¹⁴¹ Achieving non-domination means to be able “to look the other in the eye,” to avoid “bowing and scraping.”¹⁴² Given that “subjection carries with it the risk of domination, and the ability to speak and vote, directly or indirectly, on the rules that will be applied provides some protection,”¹⁴³ it is hard to find a justification for excluding someone who has been granted asylum, as the same considerations apply in her case. A society who takes the republican ideal of freedom as non-domination seriously ought to embrace the enfranchisement of refugees as part of its policy toolkit.¹⁴⁴ On the other hand, Baubock argues that “residents who will be more immediately exposed to the political decisions that they authorize through their vote have a qualitatively stronger claim to self-government than external citizens.”¹⁴⁵ So, in extremis, even branches of republicanism which value self-government intrinsically, and not for the sake of safeguarding freedom as non-domination, might have at least a prima facie reason for at least tolerating the inclusion of refugees in the demos.

The justification provided by the Scottish Refugee Council for enfranchising approved asylum seekers sums up quite neatly this normative requirement: “their lives are shaped by policies set in Holyrood and local government. They should have a say on how that happens, like everyone else.”¹⁴⁶ Other political ideals—such as stability or social cohesion—could also be served by expanding the demos. Additionally, “allowing refugees to vote would achieve two things: it would help migrants and refugees to integrate in the host countries as well as giving them dignity.”¹⁴⁷ What would serve the republican “eyeball test” better than enfranchising the most vulnerable individuals in a community?

In summation, a non-ideal republican argument for the enfranchisement of refugees could have the following structure:

P1: Republicanism aims at maximizing freedom as non-domination in a society.

P2: States have a duty of non-refoulement when it comes to asylum seekers.

P3: Refugees are placed in a situation of vulnerability, as they lack the protection of the state and depend on the goodwill of the host society to have their needs met.

P4: Persons in situations of vulnerability are prone to arbitrary interference by the state and by the other individuals residing in that state.

P5: Republicanism considers that one of the main ways in which individual freedom is protected is through democratic instruments.

From P1-P5, we reach C1: Refugees should be enfranchised in their host states. The important aspect to note here is that nowhere in this argument does citizenship play a role.

V. CONCLUSION

In this article I challenged the interpretation of refugees as passive beneficiaries of political decisions, and I made a case for their enfranchisement. Starting from recent literature regarding the all-subjected principle and the stakeholdership principle as solutions to the boundary problem of democratic theory, and then working through recent positions within republicanism that contest the lack of attention dedicated to giving a voice to refugees, I made a republican case for including refugees in the demos. One focal point of my approach is that bestowing electoral rights upon refugees represents a separate question from offering them full citizenship. Enfranchising refugees is a separate measure, and one that should be implemented before bringing into discussion citizenship-related aspects. Enfranchising refugees is the way of ensuring that their freedom from domination is protected and that their rights are not imperiled by arbitrarily-imposed decisions that do not reflect their avowable interests. While this dissociation between citizenship and inclusion in the demos might not be needed at the level of ideal theory, it is a prerequisite of any expansion of electoral rights under a regime of controlled, closed borders, in a non-ideal world in which refugees are still not fully welcomed by citizens of many countries. But, especially because they are not fully welcome by the majority of citizens, their interests might not be tracked by state policies and they would suffer the arbitrary interference of other individuals or of the government in their lives. This makes them prime candidates for benefiting from the republican toolkit of measures that aim to protect an individual’s freedom from non-domination, with voting rights being one of the most important instruments that they would have access to.