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Why do refugees exist – not as an empirical, but as a normative, category? What special sense of duty connects us to those people whom we call refugees, and how does this duty translate into asylum? What does the practice of asylum tell us about who we are, as individuals as well as members of political communities? How does one morally justify the special concern we feel for, and consequently the privileged treatment we give, refugees as compared with other foreigners in need? Revisiting the main features of the ethical debate over asylum and refugeehood, this article argues that the 1951 Refugee Convention provides a coherent framework to explain the ‘refugee privilege’. This contention is based on three features of the Convention, namely: its focus on admission and assimilation; its affirmation of the refugee as a privileged alien; and its emphasis, through the key concept of persecution, on the prohibition of discrimination and the identifying value of tolerance. However, one must acknowledge that a proper understanding of the moral duty to admit and integrate refugees does not suffice to explain contemporary state practice in dealing with the ‘refugee problem’ as a matter of solidarity. This article suggests that there are two additional asylum paradigms at work in today’s world: one takes disaster as a motivation for action, and rescue as the underpinning moral and legal imperative; and the other rests upon a duty not to return individuals to specific forms of danger, absent affinity or even compassion. The article examines some of the impacts which the co-existence of these three paradigms has on the global refugee regime, and their implications for law- and policy-making on asylum, both within and among states.

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References

8)

Shacknovesupra note 4 p. 275.

10)

Nollsupra note 4 p. 15.

11)

Shacknovesupra note 4 p. 277.

13)

Shacknovesupra note 4 p. 276.

14)

Martinsupra note 4 p. 9. Emphasis added.

16)

Jusssupra note 1 pp. 199–200.

20)

Nollsupra note 4 p. 75.

22)

Shacknovesupra note 4 p. 277.

23)

Gibneysupra note 2 p. 84. Reference omitted. A similar formulation can be found in Zolberg et al.supra note 3 at p. 33: “relief is possible only by enabling them to move abroad”.

43)

As of 15 February 2013145 states are parties to the 1951 Convention and 146 to the 1967 Protocol.

47)

Walzersupra note 30 pp. 2 and 3. The biblical parable of the Good Samaritan [Luke 10: 25–37] tells the story of three characters – a priest a Levite and a Samaritan – successively coming across the same stranger lying wounded on the side of the road where he has been left for dead by bandits who robbed him of all his belongings. Whereas the first two passers-by turn away from the man in distress the Samaritan picks him up dresses his wounds gives him water and food and takes him to a nearby inn to rest and recuperate. He pays the innkeeper in advance for the first night of the stranger’s stay and promises to visit on his way back and pay whatever additional amount may be needed.

57)

Bauhnsupra note 54 p. 46. Emphasis added.

58)

Bauhnsupra note 54 p. 47. On this point though Walzer rightly observes that “[m]utual aid is more coercive for political communities than it is for individuals because a wide range of benevolent actions are open to the community that will only marginally affect its members considered as a body or even … one by one”. Walzer supra note 30 p. 16.

67)

Goodwin-Gillsupra note 4 pp. 110–111.

70)

Perluss and Hartmansupra note 66 p. 618.

71)

Goodwin-Gillsupra note 4 p. 115.

73)

UNHCRsupra note 44 p.11. See also Cluster Working Group on Early Recovery Guidance Note on Early Recovery (April 2006) p. 6: “The foundations for sustainable recovery and a return to longer term development should be planned from the outset of a humanitarian emergency”. Available at < ocha.unog.ch/drp.toolkit/Preparedness.Tools/EarlyRecovery/Guidancenote.pdf >.

75)

Durieuxsupra note 35.

77)

Goodwin-Gill and McAdamsupra note 9 p. 356.

81)

Walzersupra note 30 p. 51.

82)

Gibneysupra note 2 p. 55.

84)

Nollsupra note 4 p. 75. Chahal v. The United Kingdom 70/1995/576/662 Council of Europe: European Court of Human Rights 15 November 1996. The Court found by 12 votes to seven that the deportation of Mr. Chahal a Sikh separatist to India would infringe upon the prohibition of torture inhuman or degrading treatment spelt out in Article 3 of the European Convention on Human Rights.

86)

Brownsupra note 25 p. 158.

89)

Chetailsupra note 76 p. 650.

91)

Carenssupra note 83 p. 39.

92)

Hathawaysupra note 4 p. 87.

93)

Durieuxsupra note 35.

95)

Arendtsupra note 50 p. 81.

96)

Carenssupra note 83 p. 40.

97)

Martinsupra note 4 p. 10

99)

Hathawaysupra note 4 p. 86.

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