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Asylum theory for a non-ideal world

Programme group Challenges to Democratic Representation

What duties do states have towards refugees? What is the basis of such duties? And what kind of global regime is best able to protect refugees without unfairly burdening states?

The international refugee protection regime, which came about in the aftermath of the Second World War with the drafting of the 1951 Convention Relating to the Status of Refugees, has helped protect the lives of millions by inducing member-states to provide asylum to persons fleeing arbitrary arrest, torture, execution, and other gross human rights violations.

The problem

Notwithstanding its achievements, there are good grounds for thinking that the refugee regime built around the 1951 Convention is in need of improvement so as to adequately protect all persons who are morally entitled to protection.

First of all, the definition of a refugee only accounts for those who are persecuted of their race, religion, nationality, membership to a particular social group or political opinion, but overlooks the transgressions of rights resulting from inaction or passivity states. Second, the celebrated legal principle of non-refoulement stipulates the negative responsibility that recipient states should not return refugees to where they could suffer prosecution, but not that they have a positive responsibility to adequately protect and assist those that qualify for asylum. Finally, while costs related to refugee protection continue to increase, the Convention does not specify the degree of costs states should incur before they can be said to have discharged their obligations.

Research questions

The growing mismatch between the legal norms that still regulate the regime and various ethical considerations give rise to a series of questions:

  • Who counts as a refugee?
  • What are the grounds, scope, and content of the obligations states have towards refugees?
  • What kind of global regime is best able to protect refugees without unfairly burdening states?

These are the central questions that need to be addressed if one wants to assess existing immigration policies or propose new ones.

Relevance and aim 

This project is aimed at offering a theory of asylum that provides answers to these questions by taking account of ethical considerations as well as the motivational and institutional constraints currently affecting the global refugee protection regime.

The first part of the project argues for a new definition of ‘refugee’ which goes beyond the traditional focus on political persecution, and which gives priority to the most vulnerable. The second part focuses on the duties of states with respect to refugees and argues that these should be extended beyond duties of beneficence. In particular, under certain conditions, past contribution to harm and mere benefitting from injustice can ground duties of states with respect to refugees. Finally, this project will investigate whether an arrangement whereby states engage in a trading scheme in order to discharge their duties would adequately protect refugees without individual states thereby incurring an unfair burden.

The overall aim of this project is to provide a theory that points us towards an ethically desirable and politically effective refugee protection regime.

The project runs for three years, starting 1 January 2015.