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Notes
Wellman (2008), pp. 109–141; p. 109, 128 and 141.
While my comments will focus exclusively on the right to asylum, I do not mean to suggest that wealthier states have no obligations to economic migrants as well. I have discussed those obligations elsewhere. See Cavallero (2006)
See the Organization of African Unity (now African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa (1969); The European Union Council Directive 2004/83/EC (2004) on minimum standards for qualification of refugees or as “persons who otherwise need international protection”; and the Organization of American States (non-binding) Cartagena Declaration on Refugees (1984).
A limited number of special exceptions are allowed by some jurisdictions. For example, the US Immigration and Nationality Act 101(a)(42)(B) authorizes the President to declare certain foreign nationals eligible for refugee status while still in their home country. Among EU countries, only Britain, France and Spain have procedures for asylum applications made from their embassies, and these are generally very restrictive (e.g., Britain require applicants to demonstrate ‘close ties’ to the UK, such as a close family member living in the UK). See Noll (2005), pp. 542–573.
Shacknove (1985), pp. 274–284.
In rejecting the alienage condition, and in including a right to subsistence, I follow Shacknove (1985), pp. 274–284. However, I do not necessarily follow him in his conception of what are the ‘basic needs’ (or, as I would say, the basic rights). For Shacknove, the basic needs relevant to determining refugee status are vital subsistence, security, and the degree of political liberty and mobility required to protect subsistence and security. I endorse a more extensive set of basic rights relevant to determining refugee status. At a minimum, these should be deemed to include security, subsistence, simple liberty (i.e., non-slavery), freedom of conscience, expression and association, the right to work, the right to own property, the right to marry freely, immunity from torture and from cruel, inhuman or degrading treatment, and rights of due process and of equal protection (roughly, this list follows the Universal Declaration of Human Rights, Articles 1–19).
Wellman (2008), p. 116, see also p. 117, 126, 127, 135, 136.
In a familiar case, all private-sector anti-discrimination law (in housing, employment, public accommodation and so on) necessarily infringes individual freedom of association—and Wellman does not seem inclined to reject all private-sector anti-discrimination law.
Wellman (2008), p. 115.
Wellman (2008) pp. 133–34, see also pp. 125–26. Wellman borrows the principle of equal membership from Walzer.
Wellman (2008), p.117.
Wellman (2008), p. 113.
Indeed, Wellman acknowledges, in a footnote, at least one set of circumstances in which a state is so obligated: when engaged in humanitarian intervention, the intervening state must provide asylum to refugees for the duration of the intervention. See his (2008), p. 129 fn 26 .
The principle of non-refoulement—i.e., of not expelling or returning refugees—is regarded as part of international customary law, binding on all states independently of treaty undertakings. Indeed, it is arguably also a jus cogens (peremptory) norm, i.e., one from which no derogation is permitted. See United Nations High Commissioner for Refugees (2007) and Allain (2001).
Wellman (2008), p. 113.
Wellman (2008), p. 129.
Wellman (2008), p. 129.
Wellman (2008), p. 129.
By contrast, the prevailing doctrine of intervention (which has emerged only in the past decade, and is known as R2P, or “Responsibility to Protect”) holds that a just cause exists only when human rights violations rise to the level of genocide, serious war crimes or crimes against humanity. See International Coalition on the Responsibility to Protect (2010)
Altman and Wellman (2008).
United Nations High Commissioner for Refugees (2006b)
United Nations High Commissioner for Refugees (2006b), p. 142.
US Department of State (2010b). Three successive United Nations supported interventions in the 1990s were unable to make Somalia safe for humanitarian relief operations to proceed. One of these interventions, UNITAF (“Operation Restore Hope”), deployed 37,000 personnel, including 28,000 Marines. See Pool (2005). A subsequent intervention, UNOSOM II was of comparable scale. See United Nations Department of Public Information (2009).
United Nations High Commissioner for Refugees (2010), p. 15.
I have been relying on an intuitive sense of what makes a state “capable” of providing asylum. When considering the concrete duties of states to refugees today, a more precise sense is needed. I would provisionally suggest that a state is capable of providing asylum to the extent that it can do so without compromising the protection of the basic rights of its citizens and other current residents.
United States Committee for Refugees and Immigrants (2009c) “Warehoused Refugee Populations”.
United Nations High Commissioner for Refugees (2011b) UNHCR estimated that “global resettlement needs” would be in excess of 800,000 people in 2011. Of those, only about ten percent will be accepted for resettlement by one of the 11 countries that resettles any refugees at all. The figure of 800,000 who have been referred for resettlement, however, is only a small fraction of refugees who actually need to be resettled. In general, a refugee can qualify for a resettlement referral only if s/he is at risk of violence, or is deemed to have other “special protection needs” in the nation of first asylum. “In cases not related to immediate protection concerns…a decision to refer for resettlement may be influenced by the availability of places. Without reasonable assurances that cases will be considered, UNHCR abstains from referring cases because doing so may raise expectations, create an unmanageable demand, and in turn even lead to security problems” [United Nations High Commissioner for Refugees (2004), Ch. 4, p. 2]
A more realistic estimate of the volume of resettlement needs can be formed by considering the number of ‘warehoused refugees’ with little prospect of either repatriating or being integrated into the nation of first asylum. The United States Committee for Refugees and Immigrants defines “warehoused refugee populations” as “populations of of 10,000 or more restricted to camps or segregated settlements or otherwise deprived of rights to freedom of movement or livelihoods… in situations lasting 5 years or more” and documents their number at 8,456,800. The number in this condition for 10 years or more is 8,177,800 (including 2,106,100 Palestinians). See United States Committee for Refugees and Immigrants (2009c)
This situation represents a massive derogation from rights laid out in the Convention and Protocol (United Nations 1951). It provides that refugees are entitled to the same treatment as nationals with regard to public education (CRSR Art. 22), public relief (CRSR Art. 23), other social welfare programs (CRSR Art. 24), and working conditions (CRSR Art. 24). Refugees are entitled to “the most favourable treatment accorded to nationals of a foreign country, in the same circumstances” regarding rights of association (CRSR Art. 15), freedom of movement (CRSR Art. 26) and the right to seek and hold wage-earning employment. And refugees are entitled to treatment “not less favourable than that accorded to aliens generally in the same circumstances” regarding the acquisition and ownership of property (CRSR Art. 13), entry into contracts (CRSR Art. 13), the practice of liberal professions, (CRSR Art. 19) and housing (CRSR Art. 21) [My emphases]. Derogation from these rights under the current system is accepted as something like a matter of necessity, because the countries of first asylum lack the economic and political capacity to integrate refugees into their local societies, and because “third-party” states have no treaty obligation to share the burden of resettlement. See Thielemann (2006).
Quotas might be assigned to each state based on GDP (larger, richer countries must take more refugees), while allowing countries to buy and sell quota-credits at market rates. In that way, relatively immigrant-averse countries could discharge their duty by compensating relatively immigrant-friendly ones.
References
Allain, J. (2001). The Jus-Cogens nature of non-refoulement. International Journal of Refugee Law, 13(4), 533–558.
Altman, A., & Wellman, C. H. (2008). From humanitarian intervention to assassination: Human rights and political violence. Ethics, 118, 228–257.
Anderson, E. (1999). What is the point of equality. Ethics, 109, 287–337.
Cavallero, Eric. (2006). An immigration pressure model of global distributive justice. Politics Philosophy Economics, 5(1), 97–127.
International Coalition on the Responsibility to Protect. (2010). An introduction to the responsibility to protect. Accessed July 10, 2010 from http://responsibilitytoprotect.org/index.php/about-rtop.
Noll, G. (2005). Seeking asylum at embassies: A right to entry under international law. International Journal of Refugee Law, 17, 3.
Pool, W. S. (2005). The effort to save Somalia. Joint History Office of the Chairman of the Joint Chiefs of Staff www.dtic.mil/doctrine/doctrine/history/somalia.pdf. Accessed March 22, 2012.
Shacknove, A. E. (1985). Who is a refugee? Ethics, 95(2), 274–284.
Thielemann, E. R. (2006). Burden sharing: The international politics of refugee protection. The Center for Comparative Immigration Studies, Working Paper #34. Accessed August 7, 2011 from www.ccis-ucsd.org/PUBLICATIONS/wrkg134.pdf.
United Nations. (1951). Convention regarding the status of refugees. Accessed February 7, 2011 from http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.
United Nations. (1967). Protocol relating to the status of refugees. Accessed February 7, 2011 from http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.
United Nations Department of Public Information. (2009). UNOSOM II: Facts and figures. http://www.un.org/en/peacekeeping/missions/past/unosom2facts.html. Accessed March 22, 2012.
United Nations High Commissioner for Refugees. (2004) Resettlement Handbook (First edition July 1997/Revised edition 2004). Geneva: UNHCR.
United Nations High Commissioner for Refugees. (2006a). Fiftieth anniversary of the Hungarian uprising and refugee crisis. Accessed July 8, 2011 from http://www.unhcr.org/453c7adb2.html.
United Nations High Commissioner for Refugees. (2006b). The State of the world’s refugees 2006: Human displacement in the new millennium, rethinking durable solutions, (Ch. 6, p. 142). Accessed July 8, 2011 from http://www.unhcr.org/4a4dc1a89.html.
United Nations High Commissioner for Refugees. (2007). Advisory opinion on the extraterritorial application of non-refoulement obligations under the 1951 convention relating to the status of refugees and its 1967 protocol. Accessed July 27, 2011 from www.unhcr.org/refworld/pdfid/45f17a1a4.pdf.
United Nations High Commissioner for Refugees. (2010). Global trends 2010. Accessed March 10, 2012 from http://www.unhcr.org/4dfa11499.html.
United Nations High Commissioner for Refugees. (2011a). Country operations profile—Pakistan. Accessed July 11, 2011 from http://www.unhcr.org/pages/49e487016.htmls.
United Nations High Commissioner for Refugees. (2011b). Projected global resettlement needs 2011 http://www.unhcr.org/4c31e3716.html. Accessed March 22, 2012.
United States Committee for Refugees and Immigrants. (2009c). World refugee survey, “Warehoused Refugee Populations.” Accessed March 3, 2012 from http://www.refugees.org/resources/refugee-warehousing/archived-world-refugee-surveys/2009-world-refugee-survey.html.
Unites States Committee for Refugees and Immigrants. (2009a). World refugee survey 2009: Nepal. Accessed July 7, 2011 from http://www.refugees.org/resources/refugee-warehousing/archived-world-refugee-surveys/2009-wrs-country-updates/nepal.html.
Unites States Committee for Refugees and Immigrants. (2009b). World refugee survey 2009: India. Accessed July 7, 2009 from http://www.refugees.org/resources/refugee-warehousing/archived-world-refugee-surveys/2009-wrs-country-updates/india.html.
US Department of State. (2010a). Afghan refugees in Pakistan. Accessed July 14, 2011 from http://www.state.gov/g/prm/protracted/situations/157399.htm.
US Department of State. (2010b). Somali refugees in Kenya. Accessed March 10, 2012 from http://www.state.gov/j/prm/policyissues/issues/protracted/.
Wellman, C. H. (2008). Immigration and freedom of association. Ethics, 119(1), 109–141.
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Cavallero, E. Association and asylum. Philos Stud 169, 133–141 (2014). https://doi.org/10.1007/s11098-012-9895-6
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DOI: https://doi.org/10.1007/s11098-012-9895-6