What Do We Owe to Refugees? by David Owen

Author:David Owen [Owen, David]
Language: eng
Format: epub
ISBN: 9781509539758
Publisher: Wiley
Published: 2020-03-30T00:00:00+00:00

Sanctuary

Whereas asylum is an appropriate response to persons who are (or have good reason to believe that they will be) targeted for persecution by their state of nationality or identified by it as persons whom this state is not disposed to protect from persecution by private agents (each of which wrongfully denies the standing of such persons as members), it does not align well with the claims of persons who are fleeing generalised violence and the breakdown of public order – persons who are not targets but rather would fall into the condition of being, as it were, collateral damage – or with the claims of persons whom the state is incapable of protecting from persecution by non-state agents. Many of those fleeing the civil war in Syria may fall into this category, as would many refugees encamped in African states such as Kenya and Uganda. The extension of the 1951 Convention definition in the 1969 OAU Convention is an acknowledgement of the claim of such persons to protection, which, given the norm of non-intervention, will generally require that they have crossed an international border (unless the safe havens scenario applies).

The claim advanced against the states to which such persons flee (or against the relevant international agents, in the case of safe havens) as representatives of the international community is a claim to sanctuary, conceived of as a space where one is protected against the threats to one’s basic security, liberty and welfare posed by generalised violence and the breakdown of public order in one’s home state (or, in the absence of generalised conditions, by the incapacity of the state to protect one from private agents), without fear of being returned to that state as long as the relevant conditions persist. Notice that the relationship to membership is rather different in this case from what it is in cases of claim to asylum. It is not that one’s political standing has been wrongfully denied and needs to be reasserted, but rather that it has become harmfully ineffective – or, perhaps better, inoperative, in the sense that it does not play the protective or enabling roles within the relevant state that define its effective functioning. (This inoperative citizenship is not formally identical to the de facto statelessness of the asylum refugee, although it may still amount to a condition equivalent to de facto statelessness.) In this context, the primary responsibility of the state that adjudicates the status of sanctuary seekers is to ensure that, if their claims are valid, they are subject to the norm of non-refoulement and have access to the basic security, liberty and welfare that the protective and enabling functions of citizenship would normally provide. This does not require rapid admission to a new membership, although the refugee’s absence of an effective citizenship should encourage such a process, nor does it automatically rule out non-voluntary repatriation in the way in which asylum should be understood as entailing.25 Rather the relationship to membership is an altogether more temporally complex issue in contexts of sanctuary, where at least three considerations are in play.

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