The approach of the thesis is as follows:
Conceptual preliminaries require a reflection and examination of the history of asylum. Chapter one will explore the foundations upon which obligations to others are grounded within and across societies. Legal obligations owed from states to outsiders find their origin in social contract theories and the development of international instruments on rights such as the UN Declaration of Human Rights and the Convention on Civil and Political Rights. Legal obligations to asylum seekers and refugees in particular, find their clearest articulation in the 1951 UN Convention on the Status of Refugees, parts of which have been adopted in varying degrees within individual national migration laws. Fundamental to the Refugee Convention are the principles of non-refoulement and the very definition of refugeedhood (that is, the entitlement of an individual to protection within the international community). To understand why the construction of the Refugee Convention may now be regarded as problematical, it is necessary to examine the context in which it was drafted, and to explore some of the changes that have occurred since 1951, both in the nature of refugee movements, and in state responses. The first chapter will also explore historical approaches to asylum pre-Convention, including a cosmopolitan construction of rights. This provides the foundation for the critique of liberal philosophy, whilst also linking historical perceptions of asylum seekers with distinct questions of what is unique about the claim to asylum that sees almost all accounts within liberal philosophy accord it significance.
Chapter two will explore the construction of rights and humanitarianism within the asylum and refugee context. If humanitarianism, as an extrapolation of the liberal principle of mutual aid, is the most ethically defensible approach for conceptualising state responsibilities to asylum1, then it must, by necessity, also be able to justify the asylum system. As the predominant discourse in both case law and socio-political rhetoric, both rights and humanitarianism may be seen as central to a 'liberal' political repertoire and 'naturally' consonant with asylum advocacy. However, an exploration of liberal philosophy reveals there are multiple and contradictory constructions of rights and humanitarianism that support very different arguments about responsibility for asylum seekers, depending on how these concepts are defined. This chapter seeks to define the definitional limits of humanitarianism within a liberal repertoire, raising important questions about the ethical relevance of sovereignty and the potential extent of the obligation to assist.
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Chapter three examines the extent to which the particular harm and suffering experienced by the asylum seeker provides a defensible basis for privileging responsibilities to asylum seekers. The refugee protection regime, from the outset, was intended to be restrictive and partial. The proliferation of agreements and legal arrangements following the Holocaust reflected the process of rationalisation which was central to the creation of institutions, such as the 1951 UN Convention on the Status of Refugees and the UNHCR, to limit (the effects of) such atrocities. The tension in knowing when to act and how far to articulate a needs hierarchy in relation to "suffering others" creates what some humanitarian commentators call a "sacrificial triage system"2. This chapter will explore the ways in which such procedures depend on rendering the qualitative specifics of human lives, relationships and suffering in quantitative terms. Giving consideration to the dilemma and parameters of the Refugee Convention definition in the asylum situation, and analysing recent case law, the central inquiry will be: 'to what extent can a 'fear of persecution' be justified as creating a distinct form of harm, need or vulnerability (as opposed to, for example, famine, health and disease, or environmental disasters) that justifies the ethical imperative to assist on a receiving state'?
In chapter four it will be shown that a conception of both political and moral 'closeness' is inherently inscribed within the Refugee Convention by virtue of the requirement of alienage. If the primary claim of humanitarianism is that assistance must be determined on need (that is, it is universal in scope), rather than on arbitrary matters such as distance, how can such an approach justify a system of protection which acknowledges the particularity of the onshore asylum seeker? To this end, the fourth chapter will evaluate the extent to which nearness or distance are sufficient guiding principles for articulating the scope of moral concern. In doing so, it will explore the moral significance of relationships of closeness by examining what is encapsulated by the term 'closeness' (for instance, political and literal/physical); why it should matter, and why might the physical location of the asylum seeker who arrives at the border or within the state give rise to greater moral concern.
Chapter five will explore the distinction between ideal and non-ideal theory. There is broad agreement within liberal theory that we have distinct and 'exceptional' obligations towards asylum seekers. Most states have responded to the increase of asylum seekers as a political issue and in political terms such as the "disproportionate distribution" of asylum claims and the sheer cost of maintaining such systems. It is at this point that asylum and refugee numbers are 'lumped' together within migrant numbers as a whole, as a legitimate means of limiting a state's obligation to assist3. The previous chapters have examined to whom we owe particular duties, how far our obligations extend and the possible sources of such ethical imperatives. This chapter examines who the bearers of specific responsibilities should be: to what extent is a person morally required to promote the well-being of strangers who arrive on or at their borders? Secondly, how do we conceive of the moral agency of states and what changes in the transition from individual to institutional duties?
This chapter reviewes the major arguments made in the thesis and argues, in light of these, that both moral and legal responsibilities towards asylum seekers can only be reconceptualised when we hold close those ethical imperatives that guide us to provide assistance to the asylum seeker.
1. See Gibney who advocates this approach: Gibney, M (2004) The Ethics and Politics of Asylum, Cambridge University Press.
2. See Redfield, P (2008) 'Sacrifice, Triage, and Global Humanitarianism' in Barnett, M and Weiss, T, Humanitarianism in Question: Politics, Power, Ethics, Cornell University Press.
3. Dauvergne, C (1999) 'Amorality and Humanitarianism', 37(3) Osgoode Hall Law Journal 597, p 620.