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Asylum and its Humanitarian Function

Part of the International Political Theory book series (IPoT)

Abstract

This chapter presents an account of asylum’s humanitarian function. After briefly identifying various moral functions that asylum may possess—such as the expression of condemnation and solidarity—Souter lays out the main characteristics of the dominant humanitarian approach to this institution, offering an account of humanitarian asylum’s content, site, duration, means of access and its intended beneficiaries. He distinguishes between current conceptions of humanitarian asylum—which are marked, among other things, by an aspiration to political neutrality and a view of refugee protection as discretionary—and its most defensible theoretical form. The discussion enables us to understand how asylum’s reparative function constitutes an alternative to the humanitarian approach, and how tensions and moral conflicts may potentially break out between these humanitarian and reparative roles.

Keywords

  • Asylum
  • Refugees
  • Humanitarianism
  • Reparation
  • Responsibility
  • Justice

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Notes

  1. 1.

    It might be objected here that, instead of writing of ‘asylum’s moral functions’, the matter is better discussed simply in terms of moral grounds of, or justifications for, asylum. This may be so because notions of humanitarian and reparative asylum relate asylum to particular moral reasons that states have for granting it. However, the grounds of asylum and its moral functions are interlinked, for such grounds may lead states to grant asylum to refugees in ways which do things, whether materially (where asylum meets basic needs in line with its humanitarian function) or symbolically (for instance, where it expresses solidarity with certain refugees). It is appropriate, therefore, to describe asylum as having moral functions. I am grateful to an anonymous reviewer for the Journal of Social Philosophy for prompting this point.

  2. 2.

    For instance, Germany’s welcoming of large numbers of asylum seekers in 2015, and the responses of German civil society, can be seen as an expression, albeit imperfectly, of asylum’s humanitarian moral function (see Funk, 2016).

  3. 3.

    However, some of these moral functions may be more likely to take root in other kinds of state; for instance, asylum may potentially function most strongly as an expression of religious solidarity in a theocratic state.

  4. 4.

    This is the case despite the fact that that there is disagreement among theorists over what kinds of harm give rise to an entitlement to asylum, with some defending the restriction of asylum to those at risk of persecution (e.g. Cherem, 2016; Lister, 2013). However, even if asylum is restricted in this way, it will nevertheless play a humanitarian role, by meeting the needs of refugees threatened by persecution.

  5. 5.

    I have borrowed this terminology from David Owen (2020: 47).

  6. 6.

    My distinction between asylum’s core and contingent moral functions is not intended to imply that the former are necessarily more ethically significant, or that they should always be ranked over the latter in cases where they conflict. As I argue in Chapter 8, the priority that should be given to core and contingent functions of asylum, such as its humanitarian and reparative roles, is importantly context-dependent. Instead, I make this distinction mainly in order to point to whether particular moral functions of asylum are always at play when grants of it are made to refugees, or only at times. I am grateful to Clara Sandelind, and Blair Peruniak, for comments that prompted this point.

  7. 7.

    In David Miller’s terms, these moral functions apply to those he describes as ‘particularity claimants’, who he defines as those ‘whose claim is that they already have a particular relationship with the receiving state that justifies their request to be admitted’ (Miller, 2015: 401; see also Miller, 2016: 77). However, Miller refers to immigrants more widely, rather than only refugees.

  8. 8.

    For a contrasting account of cosmopolitan solidarity towards refugees, see Hobbs and Souter (2020).

  9. 9.

    In this, it shares affinities with the broader philosophy of value pluralism, as represented in the work of theorists such as Isaiah Berlin (2013). For discussion of ways in which practices of asylum may involve tragic moral conflicts, see Blake (2020) and Miller (2016: 93).

  10. 10.

    As Alexander Betts (2006: 159–160) has argued, it is not clear that asylum in a Western state is invariably less efficient than in-region protection: if efficiency is theorised so as to encompass social and political, rather than merely financial, considerations, then asylum in the West may at times be the more efficient option.

  11. 11.

    In this vein, David Owen (2020: ch. 2) distinguishes between three modes of refugee protection: asylum (consisting of surrogate membership offered to those at risk of persecution); sanctuary (offering protection to those fleeing generalised violence); and refuge (offering protection to those escaping situations such as famine and natural disaster). However, while recognising that these categories capture normatively salient differences, I treat asylum as an overarching status within which all three types of claims can be put, given that each has a common basis of protection from serious harm in another state.

  12. 12.

    Political theorists who have written on asylum have tended to follow suit, viewing states’ responsibilities to refugees in primarily humanitarian terms. Some have done so explicitly, in terms of ‘humanitarian concern’ (Carens, 2013: 195) or the ‘principle of humanitarianism’ (Gibney, 2004: 231). Others, in contrast, have done so more implicitly as a ‘principle of mutual aid’ (Walzer, 1983: 45) or a ‘samaritan duty’ (Altman & Wellman, 2009: 181).

  13. 13.

    Although the operation of UNHCR and practices of asylum by states are often distinct, the former has shaped understandings of the latter over the course of its history, by promoting more inclusive asylum policies, intervening on behalf of refugees in asylum hearings, and even undertaking refugee status determination on behalf of certain states. UNHCR’s humanitarianism can also be seen in its aid operations in response to refugee crises in refugees’ regions of origin, which generate their own sets of urgent moral questions. For a history of UNHCR, see Loescher (2001).

  14. 14.

    For instance, the former leader of the UK Independence Party, Nigel Farage, admitted in 2013 that, unlike in the case of ‘economic migrants’, Western states have a responsibility to admit Syrians ‘fleeing for their lives’ (Guardian, 2013). Furthermore, the discourse of ‘bogus asylum seekers’ often perpetuated by populist politicians in liberal-democratic states presupposes that, were refugees ‘genuine’, the receiving state would bear a responsibility to protect them.

  15. 15.

    Humanitarian actors, exemplified by aid organisations such as the International Committee of the Red Cross take impartiality to be one of their fundamental and guiding principles,  requiring that ‘assistance be based on need and not on the basis of nationality, race, religion, gender, or political opinion’ (Barnett & Weiss, 2008: 3).

  16. 16.

    Although humanitarianism and human rights are often seen as having distinct, though overlapping, histories (Barnett, 2011a: 16), they can be seen to be closely interlinked conceptually for, as some theorists have argued, human needs may themselves give rise to human rights (e.g. Miller, 2007: 178–185). While a full account of what constitutes a basic human right stretches beyond the confines of this work, I follow Henry Shue in arguing that ‘rights to three particular substances—subsistence, security, and liberty—are basic rights’ (Shue, 1996: 9).

  17. 17.

    For the argument that various state duties of asylum, owed to refugees following their admission, are not based on a humanitarian duty of mutual aid, see Cavallero (2014).

  18. 18.

    For this reason, the high levels of death in the Mediterranean Sea in 2015 led to calls for ‘humanitarian visas’ to be issued to refugees to avoid the need for such deadly maritime journeys (Betts, 2015).

  19. 19.

    For discussion of vulnerability as a selection criterion for states, see Miller (2020: 102–107).

  20. 20.

    This humanitarian aspiration to political neutrality may be responsible for the contrast made by some theorists between humanitarian and political forms of asylum (Owen, 2020: 4–11; Price, 2009), which carries with it the implication that humanitarianism is not political. While this may be true in some senses—for instance, humanitarian asylum need not be directly tethered to any particular political ideology or faction—such a framing ignores the ways in which humanitarian action, whether in the context of asylum or not, is deeply bound up in power relations (see Long, 2013: 21).

  21. 21.

    This is in a similar manner to how this kind of posture has enabled humanitarian organisations such as the International Committee of the Red Cross (ICRC) to maintain access to war zones in order to deliver aid without being perceived as a protagonist in conflict.

  22. 22.

    It may also be linked to what is often seen as the paternalism of the humanitarianism pursued by actors such as UNHCR (see Barnett, 2011b): the rush to provide aid in emergency situations can lead to an assumption that humanitarian agencies act in the best interests of refugees, despite minimal or no consultation with them. This has prompted the now orthodox critique that humanitarian actors often treat refugees as passive, depoliticised victims (e.g. Harrell-Bond, 2002; Malkki, 1996; Rajaram, 2002).

  23. 23.

    Some theorists implicitly define humanitarian duties in opposition to duties of justice. Miller (2016: 163), for instance, writes of duties to refugees in some circumstances as being ‘humanitarian in nature, not something that justice demands’.

  24. 24.

    For a discussion of asylum in terms of perfect and imperfect duties, see Kuosmanen (2013).

  25. 25.

    While Davidovic writes of positive and negative duties more generally, her analysis applies to humanitarian and reparative duties, which are positive and negative respectively.

  26. 26.

    Humanitarianism is also at times seen as discretionary because it is taken to principally concern human needs rather than human rights and, whereas the latter enable refugees to make robust claims of justice against particular states, the simple assertion of unmet needs does not (Cherem, 2016: 184–185). However, if we take the view, cited earlier, that human needs may themselves give rise to human rights, then the presence of unmet needs can be plausibly regarded as representing a shortfall in human rights, which can in turn serve as the basis for robust claims against states on the part of refugees.

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Souter, J. (2022). Asylum and its Humanitarian Function. In: Asylum as Reparation . International Political Theory. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-62448-4_2

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