Moral Grounds of the State Duty of Asylum

Abstract

Nearly all states acknowledge a duty to provide political asylum, in some form, to some individuals, under some circumstances. International human rights instruments purport not to create this duty but to affirm it, and philosophers have generally held that it exists prior to and independently of the law. Most have assumed that a principle of humanitarian obligation, charity, or mutual aid underlies the duty. I will argue to the contrary that the duty of asylum is grounded in more stringent and demanding principles of justice. The obligation of a state not to hinder refugees seeking to enter it, nor to return them forcibly to the country they have fled (the principle of non-refoulement), is grounded in the natural duty not to harm the innocent. Efforts by a state to prevent refugees from reaching its shores, to deny them entry, or to expel them constitute not failures of mutual aid, but acts of violence against innocent people. Other principles of justice — and not of mutual aid — ground the duties of a state to protect the pre-political rights of refugees while on its territory, to accord them due process, to permit them to participate in its economic system, and in some cases, to offer them citizenship.