THE PROBLEM AREA AND TRADITION IN WHICH THE THESIS IS UNDERTAKEN
The movement of refugees has a long history; yet it is only in the last century that the issue has been politicised and internationalised. The scope of moral concern for strangers, both near and far, is largely articulated in liberal philosophy through accounts of membership. These accounts are reflected within the juridical ordering of asylum which sees the obligations delineated by the Refugee Convention and numerous human rights instruments interpreted as the limits of nation-state responsibility to (distant) strangers. The particular difficulties presented by the asylum seeker, however, raise a number of important ethical questions. As Tazreiter observes, ‘the appeal which human rights have as moral concepts which cut across borders, cultures, political and social systems, maintaining that every person ought to be extended basic assistance as a right when in dire need, gain substance only when this right is able to be lodged as a claim – substantiated through some form of obligation’.
In a world of global injustice and inequality, where human rights abuse affects such a large number of individuals, and given the increased prioritisation of efficiency in terms of assistance, on what grounds can we legitimately prioritise the needs of the asylum seeker over other human rights victims, and indeed, other displaced persons? Liberal theory attempts to account for the uniqueness of the asylum claim in a number of ways. Common accounts focus on the humanitarian impulse and its relationship to the liberal principle of mutual aid. Other accounts of obligation emphasise an ethical imperative to assist based on principles of closeness; others emphasise the asylum seeker’s ‘fear of persecution’ or lack of state membership as a particular form of suffering or need that carries distinct moral significance when determining obligations to assist.
Although much of my analysis will be on asylum seekers specifically, the research will have significant ramifications for how we construct responsibilities to all outsiders more generally. For many people and theorists, it would seem a matter of common sense, or even common humanity, that states owe obligations to asylum seekers. It is for this reason, it appears, that the issue of responsibility and obligation to asylum seekers has not been the subject of much moral or legal scrutiny outside the context of what is required of states under the Refugee Convention.
Consideration of the current literature on asylum seekers and obligations generates two broad themes: firstly, that nation-states have a prima facie moral and political obligation to assist asylum seekers. Secondly, existing liberal accounts of obligation and responsibility struggle to provide a defensible basis for the demarcation of asylum seekers as a ‘special category of others’ to which assistance should be provided. In relation to the first theme, the existing literature may be classified into three broad categories: writers who discuss asylum in its relation to broader issues of migration control; those who concern themselves with reforming the current asylum system; and those who advocate for open borders or at least a fully cosmopolitan-based approach to asylum.
Much of the existing literature on migration controls focus largely on the right to immigration/emigration and the competing merit of closed versus open borders. Writers in this tradition argue that in order to work out immigration controls and more importantly, our obligations to outsiders, we must first address the fundamental questions of the limits of political society. In doing so, they assert that asylum - as the ‘exception’ or ‘exceptional circumstance’ of membership - only becomes an issue once our position in relation to community is determined. On the other hand, the existing literature by authors seeking to reformulate democratic states’ responsibilities to asylum seekers (often appealing to the language of humanitarianism or cosmopolitanism) is largely content to focus on discrediting the legitimacy of current membership practices, with a particular emphasis on highlighting and eradicating the inefficiencies of the system.
Notwithstanding the valuable contribution these two traditions provide to the asylum debate, there exists a distinct assumption that some sort of asylum system (with individual writers expressing divergent degrees of legitimate limits and restrictions on the extent of the obligation to assist) must be maintained. What is significant for this thesis is that the foundation of the asylum system, the ethical imperative that compels us to provide assistance (beyond vague commitments to the principle of mutual aid or humanitarian impulse) is left largely unaddressed. Despite the attention paid to the practical limits, and the politico-legal constraints of the asylum system, there is little, if any examination of the justification for an asylum system in the first instance. After all, as Aleinikoff observes, ‘refugee law has become immigration law, emphasizing protection of borders rather than protection of persons’ and it is this shift in protection that provides the motivation for this thesis.
Here, left-liberal critiques would promote open borders as a good thing, remedying the burden of the asylum seeker, liberating, even emancipating the asylum seeker. I want to endorse aspects of this critique, but also in many respects, distance myself from this position also. While it may hold out the prospect of a more open, welcoming state, in many respects, it also ‘white washes’ the moral problem of asylum through its relationship to borders. Most importantly, open borders fails to justify the asylum system any further than its closed borders counterparts.
Accepting however, that the borderless society envisioned by open borders proponents is not a potential reality, we are left with the question of how and why, in a world of increasingly ‘accessible’ suffering and injustice, the category of asylum seekers can remain the ‘exception’ in how we think of obligations to outsiders. Taking the failure of the current literature to address the very foundations of the asylum system as its starting point, the thesis critically examines the extent to which these accounts provide a defensible basis for maintaining the asylum system. As Scheffler argues, ‘there is a tension between philosophical accounts of liberalism and some deeply entrenched ideas about responsibility’. This thesis therefore explores the limits of liberal theory in justifying current accounts of responsibility through an examination of what makes the asylum seeker’s claim to assistance from a foreign state morally significant. Looking specifically at the intersections of law and political philosophy, I propose to re-describe existing accounts of obligations to asylum seekers by examining: what are the moral foundations of asylum protection and on what grounds can the current system of asylum be justified.
 Tazreiter, C (2004) Asylum Seekers and the State: The Politics of Protection in a Security-Conscious World, Ashgate: Aldershot, p 23.
 See for example, Walzer (1983), p 45.
 See for example Cole (2000), Walzer (1983) and Miller (2007).
 Matthew Gibney’s work provides one of the most detailed articulations of a reformed asylum policy within non-ideal theory: (2004) The Ethics and Politics of Asylum, Cambridge University Press.
 Aleinikoff, T (1992-3) ‘State-centred Refugee Law: From Resettlement to Containment’, 14 Mich.J. Int’l L 120, p 130.
 Scheffler, S (2002) Boundaries and Allegiances, OUP: Oxford, p 4.