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This page intentionally left blank The Ethics and Politics of Asylum Asylum has become a highly charged political issue across developed countries, raising a host of difficult ethical and political questions. What responsibilities do the world’s richest countries have to refugees arriving at their borders? Are states justified in implementing measures to prevent the arrival of economic migrants if they also block entry for refugees? Is it legitimate to curtail the rights of asylum seekers to maximise the number of refugees receiving protection overall? This book draws upon political and ethical theory and an examination of the experiences of the United Sta tes, Germany, the United Kingdom and Australia to consider how to respond to the challenges of asylum. In addition to explaining why asylum has emerged as such a key political issue in recent years, it pro- vides a compelling account of how states could move towards implenting morally defensible responses to refugees.  .  is Elizabeth Colson Lecturer in Forced Migration at the Refugee Studies Centre, Queen Elizabeth House, University of Oxford, and Official Fellow of Linacre College, Oxford. He has published many articles on asylum and immigration and is the editor of Globalizing Rights: The Oxford Amnesty Lectures (2003). He is currently editing (with Randall Hansen) a three-volume encyclopedia Global Migration in the Twentieth Century (forthcoming). The Ethics and Politics of Asylum Liberal Democracy and the Response to Refugees Matthew J. Gibney cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK First published in print format isbn-13 978-0-521-80417-2 isbn-13 978-0-521-00937-9 isbn-13 978-0-511-21056-3 © Matthew J. Gibney, 2004 2004 Information on this title: www.cambrid g e.or g /9780521804172 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. isbn-10 0-511-21233-x isbn-10 0-521-80417-5 isbn-10 0-521-00937-5 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback p a p erback p a p erback eBook (EBL) eBook (EBL) hardback For Chim`ene Contents Acknowledgements page viii Introduction 1 1. Pa rtiality: community, citizenship and the defence of closure 23 2. Impartiality: freedom, equality and open borders 59 3. The Federal Republic of Germany: the rise and fall of a right to asylum 85 4. The United Kingdom: the value of asylum 107 5. The United States: the making and breaking of a refugee consensus 132 6. Australia: restricting asylum, resettling refugees 166 7. From ideal to non-ideal theory: reckoning with the state, politics and consequences 194 8. Liberal democratic states and ethically defensible asylum practices 229 List of references 261 Index 279 vii Acknowledgements This work began life in the 1990s at Cambridge University. At King’s College, I had the good fortune of being supervised by John Dunn. Not only was he an enthusiastic supporter of the idea of bringing political theory to bear on the (then far less controversial) topic of asylum, but he encouraged me to approach the topic in a way that confronted directly the challenges it posed for normative theorising about politics. His way of thinking about politics has remained with me over the last decade and I want to record my deep thanks to him here. I also had the pleasure of drawing upon the advice, friendship and gen- eral intellectual ambience provided by a wonderful group of Cambridge graduate students in social and political sciences and philosophy. I would like to thank, in particular, Jacky Cox, Sam Glover, Rob Hopkins, Don Hubert, David Kahane and Melissa Lane. My long and enduring friend- ship with Jeremy Goldman, formed in my first days at Cambridge, began with a debate on Michael Walzer. In the years since this conversation, he has taught me a great deal about what it is to think systematically about political theory. My period at Cambridge was made possible by a generous scholarship by the Commonwealth Scholars and Fellowship Plan, and near the end of the thesis by the financial suppor t of King’s College and the Holland Rose Trust. In the years since the thesis was submitted, I changed the text both to update the empirical chapters and to take into account intellectual encounters with colleagues in New Haven, Connecticut; Cambridge, Massachusetts; and Oxford. A number of scholars in the UK, the US and Canada commented on the thesis or drafts of early chapter s in many dif- ferent shapes and forms. Joe Carens, Gil Loescher, Brian Barry, Richard Tuck, Howard Adelman, Andrew Linklater, Matthew Price, Andrew Shacknove and Phil Triadafilopoulos, all provided useful comments. I owe a particular debt to Rogers Smith, formerly of Yale University and now at the University of Pennsylvania. My early period living in the US viii [...]... is characteristic of the communitarian, conservative and constitutionalist 23 24 The Ethics and Politics of Asylum realist strands of political theory.1 Writers in each of these strands have mostly ignored the issue of the responsibilities of states to refugees and foreigners more generally, concentrating their attention primarily on the reciprocal duties of citizens, those, in other words, already... with how they can be protected as the nature of the threat they face For threatened people already outside their country of origin, the question of whether or not they should be considered refugees is for the most part clear cut The only way of protecting such people in the short term is by granting them asylum where they are or helping them to move on to another safe country; no other form of assistance... Protocol and a range of other human rights instruments) and trumpet the moral importance of the principle of asylum A kind of schizophrenia seems to pervade Western responses to asylum seekers and refugees; great importance is attached to the principle of asylum but enormous efforts are made to ensure that refugees (and others with less pressing claims) never reach the territory of the state where they... that the relevance of an account of the resettlement or entrance duties of states will diminish in the foreseeable future 1 Partiality: community, citizenship and the defence of closure Do we want people to be virtuous? Let us then start by making them love their fatherland But how are they to love it if the fatherland is nothing more for them than for foreigners, and accords to them only what it cannot... economic, political and social consequences of asylum for a state This difficulty emerges because of the tendency of movements of migrants and refugees to ‘snowball’, thus confounding all expectations of the number of entrants likely under a particular policy or standard But it also grows out of the hazards of predicting the trajectory of the various factors that will determine the consequences of reception... bankruptcy of communism By the end of the 1970s, however, international economic recession and changes in the international economy had severely reduced the demand for external supplies of labour across the West The restrictive force of this development and changes in the patterns of refugee movement were simply reinforced by the end of the Cold War in 1989, which deprived Western states of an obvious... been empirical, have often been quick to criticise the ethical shortcomings of current state responses to refugees and asylum seekers But they have done little to shed light on what morality might actually demand in terms of the treatment of these entrants The possibility, for example, that the requirements of morality might be the subject of different interpretations or the site of conflicting values... from the character of existing states – by assuming, for instance, that their current schedule of responsibilities can be replaced – and, particularly in the case of global liberalism, from many of the features of the practical environment which currently shapes and constrains the responses of states to refugees, including the constraints that emerge from politics The result has been somewhat otherworldly... face of group loyalty Judith N Shklar 1993 Over the last twenty years, asylum has become one of the central issues in the politics of liberal democratic states In 1993 the German Parliament embarked upon the politically onerous task of amending the country’s constitution, the Basic Law, in order to slow the arrival of asylum seekers on to state territory One year later, the Clinton Administration in the. .. practical implications for the current policies of liberal democratic states I conclude this work by considering the justifiability of, first, practices that propose to trade off the rights of asylum seekers and refugees to maximise the availability of asylum, and, second, measures to restrict the entrance of asylum seekers and refugees on the grounds of national security Before I begin it is important . scholarship by the Commonwealth Scholars and Fellowship Plan, and near the end of the thesis by the financial suppor t of King’s College and the Holland Rose. refugees and others in need of protection (as defined by the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol and a range of other

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  • Cover

  • Half-title

  • Title

  • Copyright

  • Dedication

  • Contents

  • Acknowledgements

  • Introduction

    • Defining refugees and other claimants for entrance

      • Refugees

      • Asylum seekers

      • Economic migrants

      • Family reunion

    • The requirements of a political theory

    • Conclusion

  • 1 Partiality: community, citizenship and the defence of closure

    • The political community and foreigners

    • Partiality and refugees

    • The state: territory, identity, agency

    • What gives the state the right to exclusive use of the territory it occupies?

    • What is shared by citizens that distinguishes them from outsiders?

      • The political account of membership

      • The modified partialist account of membership

    • Are states responsible for the harm they cause?

      • Assumption I: the West and the creation of refugees

      • Assumption II: inflicting harm and failing to aid

    • Conclusion

  • 2 Impartiality: freedom, equality and open borders

    • Liberals and utilitarians

    • The force of impartiality

    • Liberal inconsistencies?

    • Open borders and the welfare state

    • Impartiality versus partiality

    • Conclusion

  • 3 The Federal Republic of Germany: the rise and fall of a right to asylum

    • The state and entrance: 1949–70

      • Rechtsstaat

      • Capitalist state

      • Nation-state

      • European state

    • The emergence of a crisis: 1970–93

    • Withdrawing the right of asylum

    • The aftermath of reform

    • Conclusion

  • 4 The United Kingdom: the value of asylum

    • The state and entrance: 1945–75

      • Capitalist state

      • Commonwealth state

      • Political community

      • State of refuge

      • European state

    • Commonwealth versus political community: 1961–81

    • Political community versus refuge: 1979–95

    • The political rise of asylum: 1996–2002

    • Conclusion

  • 5 The United States: the making and breaking of a refugee consensus

    • The aftermath of war and the origins of US refugee policy

    • The shape of immigration control

      • Ethnic pressure groups

      • National identity

      • The responsibilities of leadership

      • Ordered tension’: the institutional framework

    • The 1948 Displaced Persons Act and beyond

    • The Cold War and the politics of inclusion

    • The end of Cold War consensus

      • The reassertion of Congress

      • The decreasing utility of the Cold War refugee

      • The US as a country of first asylum

      • Unequal protection and the rise of the courts

    • The new era in responses to refugees

      • Resettlement

      • Asylum

  • 6 Australia: restricting asylum, resettling refugees

    • The state and entrance: 1945–75

      • The quest for legitimacy

      • State of security

      • Capitalist state

      • Nation-state

    • Responses to refugees between 1975 and 1996

      • A European nation?

      • National interests and refugee admissions

      • Controlling entry

      • Tampa and beyond

      • The Tampa incident

      • A sea change?

      • The question of justifiability

    • Conclusion

  • 7 From ideal to non-ideal theory: reckoning with the state, politics and consequences

    • Challenges of agency: from ideal to non-ideal theory

    • The institutional challenge: reckoning with the character of the modern state

      • The idea of the state

      • The practical limitations of the modern state

      • The adapting agent

      • National agent

      • Democratic agent

      • Economic agent

      • Implications of the state as a particularistic agent

    • The political challenge: avoiding a backlash

      • The needs of the claimants

      • Determining who is a refugee

      • The wealth of the state

      • Unemployment and housing

      • Ethnic affinity

      • Integration history

      • The actions of other states

      • Control

    • The ethical challenge: unintended consequences

    • Conclusion

  • 8 Liberal democratic states and ethically defensible asylum practices

    • Defining humanitarianism

    • The advantages of humanitarianism

    • Objections to the humanitarian principle

    • The practical requirements of humanitarianism

    • The first responsibility: humanitarianism within current constraints

      • Humanitarianism and the claims of asylum seekers

      • Humanitarianism and the issue of resettlement

      • Practical implications

    • Humanitarianism and the duty to challenge current constraints

      • Reshaping public opinion

      • Participating in resettlement sharing

      • Tackling the causes of forced migration

    • Rights versus asylum

    • National security versus asylum

    • Conclusion

  • References

  • Index

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