Asylum seekers and human rights

Res Publica

Volumn 7, Issue 2, 2001, Pages 159-182

  Edwards, John ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

Asylum seekers; Autonomy; Correlative; Duties; Human rights; Social rights

Indexed keywords

EID: 34248077299     PISSN: 13564765     EISSN: 15728692     Source Type: Journal    
DOI: 10.1023/A:1011951915924     Document Type: Article

References (65)

1. Most of these ordinances concern both refugees and asylum seekers. This paper is about the condition of asylum seekers and conventional usage is adopted here to identify asylum seekers as those seeking refugee status in a country not their own, and refugees as those who have been granted it.
2. See A. Danto, "Constructing an Epistemology of Human Rights: A Pseudo Problem?", Philosophy and Social Policy 1/2 (1984), 25-30.
3. This is not to say that we can have only those rights that states and other institutions are willing to protect and fulfil; but at the same time, completely dutyless rights are rare: see J. Feinberg, Rights, Justice and the Bounds of Liberty (Princeton: Princeton University Press, 1980).
4. For a more extended treatment of the relation between duties and rights see H.L.A. Hart, "Bentham on Legal Rights", in A.W.B. Simpson, ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1973).
5. Recent examples in Europe include the Dutch Alien Law, due for implementation in 2001, and the UK Immigration and Asylum Act 1999, both of which reduce the relevant state's responsibilities by administrative stealth.
6. See European Council on Refugees and Exiles, Position on the Reception of Asylum Seekers (Eondon: European Council on Refugees and Asylum Seekers, 1997).
7. The question of enforceability is, of course, theoretically independent of the substantive content of rights. What is of concern here is whether it is possible to identify a limited set of rights which states would be more likely to accept a duty to protect and fulfil for people who are not their citizens in circumstances where they (the states) would not be likely to acknowledge a duty in respect of all the human rights of asylum seekers simply qua human beings. We have noted in this latter respect that states can (and do) all too easily slough off such duties when political expediency and public opinion dictate.
8. See for example, C.H. Whiteley, "On Duties", in J. Feinberg, ed., Moral Concepts (Oxford: Oxford University Press, 1969), 53-9
9. and C. Fried, Right and Wrong (Cambridge, Mass.: Harvard University Press, 1978) for treatments of the Kantian notion of a general duty of beneficence.
10. Details are to be found in Home Office, Immigration and Asylum Act 1999 (London: HMSO, 1999)
11. and Home Office Immigration and Nationality Directorate, Providing Asylum Support (London: HMSO, 1999).
12. H.A. Bedau, "Why Do We Have the Rights We Do?", Social Philosophy and Policy 1/2 (1984), 56-72.
13. See for example K. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights (Antwerp: Intersentia-Hart, 1999).
14. Further discussion can be found in J. Donnelly, Universal Human Rights in Theory and in Practice (Ithaca: Cornell University Press, 1989), ch. 1
15. and S. Davidson, Human Rights (Buckingham: Open University Press, 1973), ch. 1.
16. See M. Cranston, What Are Human Rights? (London: Bodley Head, 1973).
17. Further valuable comment can be found in M. Warnock, An Intelligent Person's Guide to Ethics (London: Duckworth, 1998).
18. This case is made with varying degrees of force by F. Twine, Citizenship and Social Rights: The Interdependence of Self and Society (London: Sage, 1994);
19. H. Dean, Welfare, Law and Citizenship (London: Prentice Hall, 1998);
20. and I. Culpitt, Welfare and Citizenship: Beyond the Crisis of the Welfare State? (London: Sage, 1992).
21. These arguments can be found in J.M. Barbalet, Citizenship: Rights, Struggle, and Class Inequality (Minneapolis: University of Minnesota Press, 1988), chs. 1 and 2,
22. and in R. Goodin, "Reasons for Welfare: Economic, Sociological and Political - but Ultimately Moral", in D. Moon, ed., Responsibility, Rights, and Welfare (Boulder: Westview Press, 1988).
23. R. Pinker, Social Theory and Social Policy (London: Heinemann, 1971), 142.
24. D. Hill, Citizens and Cities (London: Harvester Wheatsheaf, 1994)
25. and J. Berry, K. Portney and K. Thomson, The Rebirth of Urban Democracy (Washington DC: Brookings Institute, 1993).
26. The relationship between rights and duties is asymmetric: dutyless rights are very rare; duties without rights, as we have noted, exist more widely (see Whiteley, The Rebirth of Urban Democracy op. cit.).
27. The background to these propositions may be found in J.P. Humphrey, "The Universal Declaration of Human Rights: Its History, Impact, and Character", in E.G. Ramchoran, ed., Human Rights Thirty Years After the Universal Declaration (Dordrecht: Martinus Nijhoff, 1979)
28. and in J.P. Humphrey, "The Magna Carta of Mankind", in P. Davies, ed., Human Rights (London: Routledge, 1988).
29. This is a point more often noted in respect of the bounds of citizenship. Discussions can be found in R. Dahrendorf, The Modern Social Contract: An Essay on the Politics of Liberty (London: Weidenfeld and Nicholson, 1988)
30. and in L. Meehan, Citizenship and the European Community (London: Sage, 1993).
31. See D. Weissbrodt, "Human Rights: An Historical Perspective", in P. Davies, ed., Citizenship and the European Community op. cit.
32. It is worth noting the implication of Marshall's assumption - that he saw class inequalities as consisting almost exclusively of material inequalities and not of those other inequalities of status, influence, access, etc., that might themselves compromise equal rights: see T.H. Marshall, Citizenship and Social Class (Cambridge: Cambridge University Press, 1950).
33. J. Feinberg, Social Philosophy (Englewood Cliffs: Prentice Hall, 1973), 86.
34. This is, of course, something of a caricature. No-one would subscribe to the view that human rights did not exist before the 1940s, but it remains a fact that it has become a common habit to attribute the existence and content of post-second world war human rights to the declarations of that period.
35. R. Plant, Modern Political Thought (Oxford: Blackwell, 1991), 263.
36. See Plant, Modern Political Thought ibid., 103 ff.
37. This formulation bears a resemblance to Christian Bay's idea of needs establishing human rights: see C. Bay, "Self Respect as a Human Right: Thoughts on the Dialectics of Wants and Needs in the Struggle for Human Community", Human Rights Quarterly 4 (1982), 53-75 and particularly at 64.
38. See S.I. Benn, "Human Rights - For Whom and For What?", in E. Kamenka and A. Erh-Soon Tay, eds, Human Rights (London: Arnold, 1978), 59-73.
39. Recent formulations of those arguments occur in W. Kymlicka, ed., The Rights of Minority Cultures (Oxford: Oxford University Press 1995);
40. P. Sniderman, J. Fletcher, P. Russell and P. Tetlock, The Clash of Rights: Liberty, Equality, and Legitimacy in Pluralist Democracy (New Haven, Conn.: Yale University Press, 1996);
41. and J. Waldron, "Minority Cultures and the Cosmopolitan Alternative", in Kymlicka, ed.,The Clash of Rights: Liberty, Equality, and Legitimacy in Pluralist Democracy op. cit.
42. See Donnelly, op. cit., ch. 9.
43. Kymlicka, ed.,The Clash of Rights: Liberty, Equality, and Legitimacy in Pluralist Democracy op. cit.
44. , contains a number of valuable pieces: see in particular A. Lijphart, "Self-Determination Versus Pre-Determination of Ethnic Minorities in Power Sharing Systems", 275-87;
45. and also M. Walzer, "Response to Kukathas", in I. Shapiro and W. Kymlicka, eds, Ethnicity and Group Rights (New York: New York University Press, 1997).
46. While this is not the place to enter a debate on Kymlicka's work, it is worth noting that although some of his arguments depend on western liberal views of tolerance, and so do not sit easily with the content of other moral systems he wishes to defend, this does not alter the value of his contribution so far as our present arguments are concerned. See for example, A. Addiss, "On Human Diversity and the Limits of Toleration", in Shapiro and Kymlicka, eds, Ethnicity and Group Rights op. cit;
47. C. Kukathas, "Cultural Toleration",Ethnicity and Group Rights ibid.;
48. and Walzer, Ethnicity and Group Rights op. cit. Hohfeld's analysis is concerned exclusively with legal rights; it is, nonetheless, of analytical value here.
49. A useful discussion is to be found in R. Martin, Citizenship and Social Class (Cambridge: Cambridge University Press, 1950);
50. see also W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Conn.: Yale University Press, 1932).
51. See Cranston,Fundamental Legal Conceptions As Applied in Judicial Reasoning op. cit.
52. These arguments are to be found in A. Weale, Political Theory and Social Policy (London: Macmillan, 1983), 128 ff.
53. and R. Plant, H. Lesser and P. Taylor-Gooby, Political Philosophy and Social Welfare (London: Routledge, 1980), ch. 4.
54. A. Gewirth, "The Epistemology of Human Rights", Social Philosophy and Policy 1/2 (1984), 1-24, p. 15, emphases original.
55. We are concerned with generalities here and shall not enter ancillary debates about particular countries, types of asylum seekers, the nature of the circumstances from which they flee and so on.
56. Warnock, op. cit., ch. 3.
57. This is a problematic formulation on both theoretical and empirical grounds. It appears to contradict what we otherwise think to be the case, that in a Kantian sense all people are ends (an ill-defined concept but one from which the idea of moral autonomy is not far removed) and that this condition in no way depends on socio-economic position or on well-being. Empirically, this formulation of autonomy might condemn many of the world's poorest (past and present) to a condition of moral dependence. In other words, making moral capacity dependent on material circumstance is not an idea that sits easily with our basic understanding. A resolution of this difficulty must be left to another time but may lie in a distinction between having the capacity to make moral judgements and being in possession of those goods that make the exercise of that capacity possible.
58. See J. Edwards, "Justice and the Bounds of Welfare", Journal of Social Policy 17/2 (1988), 127-52.
59. See Twine, Journal of Social Policy op. cit., ch. 4.
60. Gewirth, Journal of Social Policy op. cit., 92.
61. These examples do not envisage the overriding or withdrawal of such rights in particular circumstances; they refer to human beings not having such rights, never having had them; to where these rights just do not exist.
62. Gewirth, op. cit., 43.
63. The same argument has been approached in a different way by some writers who identify a (small) number of basic rights. See for example H. Shue, Basic Rights: Subsistence,Affluence and US Foreign Policy (Princeton, NJ: Princeton University Press, 1980);
64. H.A. Bedau, "Human Rights and Foreign Assistance Programs", in P. Brown and D. Maclean, eds, Human Rights and US Foreign Policy (Lexington, Mass.: D.C. Heath, 1979);
65. and R. Matthews and C. Pratt, "Human Rights and Foreign Policy: Principles and Canadian Practice", Human Rights Quarterly ( 1985), 159-88. Whether called "basic rights" or "nonderogable rights", however, the problem remains of how to identify morally robust criteria by which to distinguish between basic and non-basic rights.