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Dixon, Rosalind --- "Review Article Of: The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees" [2005] AUJlHRights 9; (2005) 11(1) Australian Journal of Human Rights 9


Review article: The Ethics and Politics of Asylum*

Rosalind Dixon**

In October 2004, the United Nations High Commissioner for Refugees (UNHCR) reported that there were 17.1 million persons worldwide who were either asylum seekers, refugees or otherwise stateless, internally displaced or recently displaced and of serious humanitarian concern.1 Of these 17.1 million, as at the end of 2003, the UNHCR estimated that 6.2 million were refugees who had been in refugee camps or other forms of ‘temporary’ exile in the south for a period of five or more years.2

Yet, in the face of these protracted refugee situations in the South, northern states have only continued to ‘harden’ their borders against asylum flows. Asylum seekers have been interdicted on the high seas, repelled at borders, placed in mandatory immigration detention, denied access to social services or work opportunities, denied access to family reunion, limited in rights of access to in-country judicial processes and denied access to permanent forms of protection.3 Since 11 September 2001, these non-entrée practices have only intensified, with asylum seekers being caught up in the move in many northern states to increase the executive’s power to detain terror suspects and to restrict avenues for judicial review.

International lawyers have sought to respond to these developments by making arguments for a ‘Convention Plus’ approach, and by criticising particular non-entrée practices as in breach of the Refugees Convention of 1951 and the Protocol of 1967.4 However, as Guy-Goodwin Gill has recently noted, not all of these failures of protection are in clear breach of the Convention or Protocol (Goodwin-Gill 2003). Rather, many of these non-entrée practices reveal that ‘the refugee regime is not a seamless web’ of protection (Goodwin-Gill 2003: 34, discussing Australia’s interdiction of the MV Tampa).

It would therefore seem that, in seeking to respond to current failures of refugee protection, we must look beyond the bounds of current international refugee law to broader human rights and ethical discourses as providing an important complementary vocabulary for criticism of current practices.

From this vantage point, Matthew Gibney’s new book, The Ethics and Politics of Asylum (Gibney 2004), provides an extremely welcome contribution to the debate about asylum and refugee protection. Gibney’s work has the potential to make a particularly important contribution in this context because, unlike some more utopian contributions to the asylum debate, Gibney seeks to provide a fresh vocabulary for realistic criticism, which speaks to current practices and attitudes toward refuge and asylum, and not just to a purely normative ideal.

Outline of Gibney’s arguments

In The Ethics and Politics of Asylum, Gibney is concerned with the plight of ‘refugees’ in a relatively broad sense — as all those people in need of a new state of residence, either temporarily or permanently, because if forced to return home or remain in their state of residence they would, as a result of the brutality or inadequacy on the part of that state, be persecuted or seriously jeopardise their physical security or vital subsistence needs (7 note 7).5 It does not, however, include persons to whom effective assistance can be provided in situ.

The first part of The Ethics and Politics of Asylum is devoted to outlining what Gibney regards as an ‘ideal ‘ theory of refugee protection. In Ch 1, he analyses the arguments made by ‘partialist’ theorists for a presumptive right to exclude non-members from entry into a political community, while in Ch 2 he examines the arguments made by ‘impartialists’ for a presumptive right to entry on the part of world-be immigrants and asylum seekers. At the conclusion of Ch 2, he advances his own understanding of how these two competing views should be reconciled at the level of ideal theory.

In the second part of the book, Gibney goes on to develop an explicitly non-ideal theory, which moulds normative ideals to the real-world constraints facing liberal-democratic states. In Chs 3–6, Gibney illustrates these constraints, by reference to case studies from Germany, the UK, the US and Australia. In Ch 7, he formalises these constraints and, in Ch 8, he goes on to explain how these constraints modify the prescriptions of an ideal theory in regard to refugee-resettlement and asylum.

An ideal theory of ethical asylum practice

Gibney divides ideal theories about questions of justice across borders into two broad classes: namely ‘partlialist’ and ‘impartialist’ theories of justice. Communitarian6, conservative7 and constitutionalist-realist8 perspectives are partialist, while global liberal and global utilitarian approaches are impartialist, in this taxonomy (24, 59). The starting point for partialist theories is the importance of community self-determination at the level of the democratic state, whereas the starting point for impartialists is the ideal of the democratic state as a cosmopolitan moral agent (59). These different starting points imply profoundly different approaches to the question of a state’s right/discretion to control decisions about entry and membership.

Partialism, according to Gibney, is based on the notion that ‘[s]tates have the right to distribute membership as they please because without this right people could not protect and reproduce their cultural identity‘ (31). Cultural identity is understood in this context to be an inherently valuable social good, because it either provides a stable site of individual identity-formation or, in its pluralism, provides the conditions for meaningful individual choice, or because it is essential to individual self-realisation (24–5). Entry by outsiders into a community is seen to threaten the stability of cultural identities, because new entrants will inevitably introduce new languages, mores and cultural and religious practices, and will also ultimately be able democratically to influence the distribution of public goods having a cultural dimension (28–30). According to partialists, insiders have a privileged position in judging what will constitute a threat to cultural reproduction, and thus an almost unfettered discretion in decisions about entry and membership (31), the only qualification to that position being that communities may have some independent moral obligation towards some limited class of claimants to entry (34, discussing the ‘mutual aid’ principle and arguments about non-refoulement advanced by Walzer).

Gibney goes on to note, however, that not all partialists adopt this kind of understanding of the intrinsic value of cultural identity. ‘Modified‘ or pragmatic partialist theories do not regard the reproduction of culture as intrinsically valuable, but rather, treat culture as playing an important instrumental function in ‘facilitating collective political action in the pursuit of justice‘ (32). In particular, Gibney follows David Miller (46) in arguing that such cultural ties will often be ‘crucial to the success of the redistributive programs associated with social democracy‘ (46).

Gibney identifies himself as much more sympathetic to this kind of modified partialist account, reserving almost all of his criticisms in Ch 1 for partialism properly so-called (‘pure partialism‘). In critiquing the pure partialist account, first Gibney notes that states and ‘cultures‘ are not contiguous, and that there is real territorial scarcity in the world (37, 42). This implies that where a community asserts a right to control not only access to social membership, but also to territory, it must be able to defend the legitimacy of that territorial claim. And while people’s organic attachments to land have some claim to recognition, Gibney argues that the territorial status quo will ultimately be difficult to defend, given that it is largely the product of colonialism, the ‘force of arms’ and other highly contingent (morally irrelevant) events (39, 40–1).

Second, Gibney argues that to the extent that culture is a thinner, more political concept, it will be much more difficult successfully to argue that this form of political culture stops at state borders, rather than depends on an entire civilisation for support (44–5, citing Taylor 1985: 206). Further, it is not clear that members of this more ‘objective’ form of cultural life have any privileged position in defining what is necessary for its survival, or that persons claiming political asylum would be less rather than more committed to reproduction and maintenance of this form of culture (45).

Finally, in a manner that prefigures his non-ideal theory, Gibney points to the role of the state as an agent in shaping culture. ‘While communitarians often assume that the state is the “expression of pre-existing cultural community”, it is historically more accurate to recognise the active role that states have played in making their members a community or nation’, according to Gibney (47).

In Ch 2, Gibney goes on to examine the impartialist accounts of justice given by global liberal and utilitarian theorists. Among global liberals, Gibney counts Joseph Carens (1987: 1992a), Ann Dummett (1992) and Michael Dummett (2001), while among global utilitarians, he focuses on Peter and Renata Singer (1988). As Gibney notes, some of these liberal theorists derive their position from an immanent rather than internationalist starting-point,9 but they all share a commitment to a presumptive right of entry on the part of aliens.

Under a global liberal approach, all individuals are treated as inherently equal and birthplace is regarded as morally irrelevant to an individual’s claim to certain basic rights and liberties. As Gibney recounts, Joseph Carens, in ‘The case for open borders’, famously argued that the liberal-internationalist position implies that individuals enjoy a right to freedom of movement, within as well as between states, wherever it might be important for their particular life plans (Carens 1987: 60–1). And this implies that states can only limit rights to immigration where it is strictly necessary to maintain public order, national security or liberal institutions (63).

Gibney notes that global utilitarians start from the same principle of ‘equal concern’ for all citizens (62). However, in doing so, they seek to maximise individual welfare rather than protect individual rights, as such (62–3). According to Singer and Singer, utilitarianism implies that, given diminishing marginal utility of wealth, northern states should adopt a radically more open immigration policy — and to the extent that there are absolute constraints on the number of migrants who can be admitted, priority should be given to refugee resettlement, over and above the dismantling of non-entrée mechanisms, or an increase in ordinary migration (75). (Other global utilitarians, such as Brian Barry (Barry 1992) and Kai Neilson (Neilson 1988), suggest that global inequalities are better redressed by global economic redistribution policies but, as Gibney notes, these policies are likely to have limited effect on the welfare of ‘refugees’ — at least some of whom are, in Gibney’s definition of that term, almost certainly some of the worst-off global citizens.10)

Gibney suggests that, given current inequalities in the distribution of wealth and opportunity between South and North, and the existence of established migrant social networks within the North, the likely results of an ‘open borders’ policy would be a very significant increase in South–North immigration (69). This would undoubtedly bring significant long-term economic benefits to the North, but also significant short-term economic burdens, in terms of an obligation to provide social welfare services to new migrants (71–2). Whether the social welfare state would survive this increased burden would depend on both the numbers of new entrants requiring support, and also the strength of collective solidarity within the recipient society. Gibney worries, however, that a mass influx of immigrants would seriously threaten the existence of the welfare state as we know it (73–4).

This pragmatic concern connects up to Gibney’s theoretical objection to the impartialist account (77). In this context, Gibney follows Thomas Nagel (Nagel 1991) in arguing that the impartialist perspective is an incomplete one, in that it fails to acknowledge the distinct force of particularist, interpersonal obligations, as an alternative and complementary source of obligation to those grounded in more impartialist, impersonal notions of justice (77–82). For Gibney, the commitments expressed in the social welfare state are a paradigmatic form of particularist commitment, the importance of which global liberals and utilitarians fail to acknowledge.

An ideal theory, according to Gibney, would reconcile impartialist and partialist commitments, by creating a presumption in favour of a right to entry — but also a willingness to defer to state policies designed to limit entry in order to maintain the sense of political community necessary to sustain the welfare state (84, 195). Given the inevitable scarcity of immigration places that would result under this more ‘mixed’ or synthetic approach, as compared to a wholly impartialist approach, Gibney suggests that the reasons for giving ethical priority to refugees over more ‘ordinary’ migrants becomes much clearer than under the ‘open borders’ approach. Once a presumptive right of entry ceases to translate into an actual right of entry, it becomes clear that priority should be given to those who can make other kinds of compelling partialist or impartialist ethical claims for entry — such as claims based on nuclear family reunion, or claims for protection as a refugee (as a person with pressing human needs, which cannot be met in any other way, save by admission) (84, 195).

A non-ideal theory of ethical asylum practice

In Ch 7, Gibney goes on to elaborate several further bases on which a liberal-democratic state might legitimately limit entry, given real-world constraints on its capacity to pursue an ethically ‘ideal’ migration/asylum policy.

The first such constraint, according to Gibney, is structural, and arises from the fact that the democratic state is conceived as deriving its authority and legitimacy from the ‘consent’ of those it governs (197). This implies that, to be legitimate, the state must, in some real sense, act as an agent to promote the claims and interests of its citizens — including, increasingly, their economic interests (206, 209).

The second constraint is contextual or political, and derives from the fact that the number of new entrants a government can accept will depend on the particular society’s actual and perceived ‘absorptive capacity’ in relation to new entrants. This means that asylum, refugee resettlement and broader migration policies will all be constrained in practice by such factors as the level of economic growth and unemployment in the society; its history of receiving immigrants and whether a social infrastructure exists to support new arrivals; the ethnic-racial affiliations of citizens and the ethnic-racial identity of those seeking entry; and the way in which claims for entry are made — and, in particular, whether they undermine the appearance of political control over immigration outcomes (215–21).

The third constraint Gibney labels ethical. This relates to the difficulty of governments accurately predicting the effects of any particular policy in this area, and the dangers of miscalculation in terms of potential ‘snowball’ effect of an increased openness to migration. Looking at the experience of the four countries in Chs 3–6, Gibney sets out this snowball effect as having three potential causes, namely: that a publicised open-door policy may increase rather than decrease demand(s) for entry; that new migrants may act as a powerful internal voice for maintaining openness; and that new migrants often act as a significant ‘pull’ factor for migration by extended members of their community (225–8). This implies that, given both structural and political constraints, governments should be cautious in how they proceed in order to avoid pushing a society to brink of social disharmony (27–8).

The turn to humanitarianism

In Ch 8, Gibney seeks to incorporate these three constraints into a non-ideal theory of ethical ‘asylum practice’. He is concerned in particular in this context to provide a theory that is sensitive to both actual and perceived limits on absorptive capacity (that is, political constraints) of particular societies, and to the need for governments to proceed with a certain amount of caution in this area (that is, ethical constraints) (233–5). At the same time, however, Gibney maintains that ethical forms of practice must also respond to the pressing needs of refugees (233).

Gibney argues that, in the realm of non-ideal theory, these conflicting concerns are best reconciled by approaching refugee-resettlement and asylum as a matter of humanitarian obligation on the part of liberal-democratic states, rather than as a matter of individual right on the part of refugees and asylum seekers. (That is, the obligations of each individual liberal democratic state are best treated as ‘imperfect’.) This is because even a mere presumptive right of entry on the part of refugees has the tendency to undermine public confidence in government control over migration, and creates the potential for significant snowball effects (237–8).

This understanding implies that states should respond to the pressing needs of refugees, through processes of resettlement, wherever the cost to them of doing so is sufficiently ‘low’. This implies that states must search for ways to increase refugee resettlement above current levels, albeit within the ‘low cost’ constraint.

States will not, in this understanding, be required to dismantle non-entrée mechanisms directed at asylum seekers, or withhold deportation of asylum seekers, except in so far as non-refoulement is a necessary instrument to preserve the possibility of resettlement (240–1). Asylum is seen to carry much higher costs than refugee resettlement, in terms of both the ‘political costs’ associated with a perceived loss of control over migration policy, and the actual costs associated with refugee-status determination (239). Also, asylum seekers have no stronger claim to protection than refugees seeking resettlement, and current technology makes resettlement and asylum equally plausible forms of humanitarian response (240).

The ‘low cost’ principle finds deep support in the history of Western moral thought (232–3, citing the Good Samaritan parable and the writings of Grotius, Locke and de Vattel). In addition, in making this argument, Gibney follows the approach taken by several other writers in this area,11 including by communitarians such as Michael Walzer (Walzer 1983: 47–8), who have long advocated a principle of ‘mutual aid’ in tandem with a presumptive right to exclude.

Gibney concedes that the content of the ‘low cost’ principle is somewhat malleable, but nevertheless argues that the turn to humanitarianism will provide a useful vocabulary for argument and critical examination of the ethical nature of government practices (47–8).

Comparison with other humanitarian accounts

Despite their similarities, however, Gibney’s notion of humanitarian obligation would seem to have two real advantages over the ‘mutual aid’ principle developed by Walzer.

First, Gibney is far more sensitive than Walzer to the psychological/political as well as physical/material capacity of a society to integrate new entrants. In Spheres of Justice, Walzer argued that the ‘mutual aid’ principle should be given content by determining what resources are in fact ‘superfluous’ to the life plans of individuals within a community, or to the community’s ‘ways of life’ — and then, by allocating those superfluous resources to the fulfilment of humanitarian obligations (Walzer 1983: 47). However, as Joseph Carens has noted, Walzer ignores the fact that citizens have attachments to particular resources, such that they do not perceive them to be superfluous to their way of life — and are likely to feel highly threatened by policies that seek to reallocate those resources to outsiders.12 Walzer’s mutual aid principle is thus highly insensitive to ‘political constraints’ (as Gibney describes them), or to the problem of democratic backlash against asylum.

Taking ‘political costs’ into account in this way necessarily implies a more cautious or conservative approach to refugee admissions, and may make the ‘low cost’ principle particularly susceptible to manipulation. However, in a very important respect, Gibney’s humanitarian theory continues to provide a more robust basis for criticising restrictive asylum practices than does Walzer’s. (It should be noted, of course, that Walzer imposes additional restrictions on states in this context, in terms of a further distinct set of perfect obligations to asylum seekers, on the basis that they are relatively few in number and can only be turned away by the use of force (Walzer 1983: 51). However, as a matter of the ‘mutual aid’ or humanitarian principle itself, Gibney’s approach would seem to offer more potential for criticism.)

This is because in his background ‘ideal’ theory, Gibney has a more modified understanding of partialism than does Walzer, and a more synthetic approach to reconciling the conflict between partialism and impartialism. Unlike Walzer, Gibney does not treat existing community attitudes or understandings as having any particular claim to respect by the state but, rather, as legitimately the subject of political contestation. Prevailing cultural attitudes may therefore be actively reshaped to support a greater openness to refugees and asylum seekers, provided that this process does not threaten the existence of some sense of shared cultural/collective identity. Gibney further argues that, with impartialist ideals of ‘equal concern’ in mind, democratic leaders not only have an obligation both to search for ways of providing assistance to refugees at ‘low cost’, and to provide the maximum number of refugee places consistent with this principle (241), but also to work towards reshaping internal political constraints, so as to change the ‘cost’ function itself.13

Gibney’s theory therefore has a second advantage over Walzer’s in its capacity to provide a robust, objective basis for criticising current practices in this area, in terms of the partisan exploitation of the asylum issue and the failure of democratic leaders to build consensus and co-operation at both a domestic and international level. Gibney’s theory provides this critical ‘bite’ because it is able to connect notions of humanitarian obligation to the first principles of an ideal theory — rather than treating humanitarianism, as Walzer does, as ‘merely’ complementary to an ideal theory of membership (34).

This would seem to be an important part of the novelty of the contribution made by The Ethics and Politics of Asylum, as an argument for a humanitarian approach to refuge and asylum. It does, however, have a certain resonance with liberal-internationalist theories, such as John Rawls’s The Law of Peoples (Rawls 1993: §14), which seek to incorporate an obligation of assistance to burdened peoples, as inherently necessary for the legitimacy of an international order based on a system of sovereign ‘peoples’/states.14

Humanitarianism versus rights-based paradigms

Gibney cannot, of course, avoid the weakness common to all humanitarian accounts — which is that they cannot, of their own force, provide any real critical purchase on the treatment of asylum seekers within Northern states, provided such treatment responds to absolute basic needs or is somehow better than the conditions that asylum seekers left.15

However, Gibney anticipates this objection by arguing that human rights principles mean that there are in fact some real limits on how asylum seekers may be treated in this context. According to Gibney (252):

Where core rights are to be limited in aid of the greater good Some rights, such as the right not to be tortured, killed, refouled, enslaved or arbitrarily deprived of liberty, are so fundamental that it seems wrong to put them up for grabs in any discussion about how to boost prospects for asylum. By contrast, the right to choose one’s country of asylum, or being allowed to reside permanently in a country of asylum is qualitatively different. These rights certainly touch upon important interests, but failing to respect them is unlikely to inflict existential damage on the individuals concerned.

Gibney argues that it must be shown that such limits are necessary and proportionate, and ‘a minimal requirement must be that the judiciary supervise the terms of the trade’ (252). However, where less fundamental rights are concerned, Gibney is willing to endorse the use of temporary protection and safe third country rules to promote the overall level of protection provided (251–2).

While these two categories of rights may tend to run into each other to some degree,16 Gibney’s response would nevertheless seem to be a reasonably persuasive one. It seems that in one important respect, however, Gibney’s position may remain somewhat vulnerable in this context. That is because the ‘humanitarianism’ + ‘rights’ approach developed by Gibney appears to embody a similar weakness to the ‘communitarianism’ + ‘humanitarianism’ approach developed by Walzer, in which there is no internal or logical connection made between the primary and secondary forms of obligation.

Thus, while carefully constructing the case for humanitarian obligation, Gibney tends somewhat to gloss over why states should be obliged to respect the fundamental rights of asylum seekers. Of course, in support of his position, Gibney could readily point as a legal matter to the obligations of liberal democratic states under the Refugees Convention and Protocol, the UNDHR, the ICCPR, the Torture Convention and customary international law. As a matter of ethical or political first principles, however, such a defence does not seem entirely persuasive. These legal duties are assumed by states as a matter of positive legal obligation; and the fact of states’ ‘consent’ (or non-objection) to such norms does not provide any real argument as to why those obligations should be seen to have deep ethical or normative force.

It may therefore be that the ‘humanitarianism’ + ‘rights’ approach developed by Gibney cannot provide deep critical bite against situations where northern states deny that they owe any relevant legal duties to asylum seekers, as ‘law breakers’ whom the state has a presumptive right to exclude.

If that fear is correct, there is some reason to pause before endorsing the turn to humanitarianism advocated by Gibney. That is, it may well be that those committed to maximising both refugee and asylum seeker protection should continue to search for a rights based rather than needs based way in which to reconcile the competing notions of obligation and the sources of constraint identified by Gibney.

Immanent forms of rights based critique may well offer more potential for ‘realistic’ criticism of current practices than Gibney credits (33–4). That is, the commitments of political liberalism may themselves provide strong bases for arguing against restrictive refuge or asylum practices that have a race conscious, culturally perfectionist, procedurally unfair or unjustifiably coercive dimension. It is not necessary, in this understanding, that citizens of liberal democracies reach any strong consensus about the meaning of political membership or the approach to be taken to asylum or immigration policies,17 but only that there is an ‘overlapping’ social consensus that burdens and benefits imposed by the state should be justified in a manner consistent with internal constitutional norms.18

In addition, Gibney does not explore more discourse-theoretic accounts of rights that do not endorse the global liberalism of Carens or Dummett, but rather envisage the possibility that the concept of ‘equal concern’ might at some future point become concretised in the form of legally enforceable rights to life, security and freedom of the person, through the creation of a shared cosmopolitan communicative sphere, and a loose form of cosmopolitan legal authority.19 In this Habermasian understanding, we are not yet at the point of recognising universally enforceable basic human rights protections though the UN and regional human rights systems, and the enforcement of customary international human rights law norms in domestic courts20 might be argued to give such universally enforceable rights some inchoate status. We are, however, at a juncture between a transition to more cosmopolitan forms of government in which the equal concern principle may be perfected in the form of concrete legal rights, and a move toward a more exclusive nationalism (Habermas 1997: 130). Whether refugees are ultimately entitled to a presumptive right of entry, or right to protection, is thus a question of politics — and, not least, of how we construct our ethical ideals.

In this understanding, the turn to humanitarianism may have real consequences for refugee protection, as it shifts the focus of ethical practice towards an attention to short term need, over long term cosmopolitan rights building.

Conclusion

Some scholars will applaud this pragmatically oriented shift,21 while others will strongly resist it.22 Whether or not one ultimately endorses Gibney’s turn to humanitarianism, however, all scholars interested in the ethical/normative dimension of asylum practice will find The Ethics and Politics of Asylum a key reference point in future debates in this area.

First, it provides a crisp and highly readable summary of most of the important theoretical work on this topic to date. Second, it directs our attention to the need to look to both partialist and impartialist sources of obligation in any ideal theory of asylum practice. And third, it provides a very clear theoretical account of the real world constraints with which all non-ideal theories of asylum and refugee protection must inevitably grapple.

It will, therefore, be essential reading for both political theorists and international lawyers interested in the debate about what liberal democratic states owe refugees and asylum seekers — as a matter of ethical as well as legal obligation.

The Ethics and Politics of Asylum will also be of interest to those wishing to acquaint themselves with the historical practices of Germany, the UK, the US and Australia in regard to asylum, refugee resettlement and immigration more broadly. Gibney gives a highly structured and thoughtful account of the complex interaction between asylum, refuge and immigration policies in these four jurisdictions, and the book thus provides a very useful starting point for anyone interested in understanding refuge or asylum law in those countries. This part of The Ethics and Politics of Asylum also anticipates more extensive work by Gibney in this area, as a joint editor of the forthcoming encyclopedia on Global Migration in the Twentieth Century — which, if his current work is anything to judge by, readers may look forward to with real anticipation.

* Gibney M J (2004) The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees Cambridge University Press, Cambridge (x + 287 pages).

** SJD candidate (Harvard) and Visiting Lecturer, University of New South Wales.

1 See <www.unhcr.ch/cgi-bin/texis/vtx/home?page=statistics>.

2 See <www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=STATISTICS&id=40ed5b384>.

3 See also discussion in Hathaway and Neve (1997).

4 For a particularly good recent example of such an account, see, for example, Mathew (2002).

5 This may include asylum seekers, refugees seeking resettlement or internally displaced persons.

6 See, for example, MacIntyre 1984; Sandel 1982; Walzer 1983; and Miller 1995.

7 See, for example, Scruton 1990.

8 See, for example, Hendrickson 1992.

9 And in doing so, may over-stretch the bounds of ‘common sense’ immanent critique. So, for example, Ann Dummett seeks to argue for a right to entry as the logical corollary of the right of exit — but, as Gibney notes, one right is positive and one is negative in character: see Gibney 2004: 68. R Goodin seeks to argue for free movement of labor, as the moral corollary of the free movement of goods and capital, but Gibney argues that there is clear, relevant difference between the two kinds of movement in terms of their effect on the political communities: see Gibney 2004: 67.

10 Note that the narrower Convention definition of ‘refugee‘ may in fact privilege those in the South who are young, male and able bodied, and thus already ‘better off‘ in some sense — rather than restricted in their mobility because of age, responsibilities for children or gender-based impediments to free movement. Compare, for example, Adelman 1990; Hathaway and Neve 1997. I am indebted to Matthew Price for pointing out the implications of the different definition of refugee in this context.

11 Compare, for example, Andrew Schacknove ‘American duties to refugees,‘ cited in Gibney 2004: 30.

12 Carens 1992a. In addition, Walzer’s ‘real-world’ example of ‘superfluous‘ resources (that is, unoccupied land in Australia) also seems insensitive to the rights of indigenous peoples and to environmental concerns, which make retaining this land in its current state and ownership far from ‘superfluous’. Compare Singer and Singer 1988: 24 (making the environmental objection).

13 This implies working to reshape public attitudes and reduce public concerns — by, for example, programs of public education and bipartisan co-operation — and also working toward more effective and efficient forms of protection through international co-operation aimed at ensuring more equal and orderly refugee protection. See Gibney 2004: 244–7.

14 Compare also Carens 1987, arguing that ‘the legitimacy of any particular state is ... initially derivative from the legitimacy of the system as a whole’, and that ‘the moral legitimacy of the state system depends on the provision of safe state membership to everyone’.

15 Compare Schuck 1997, defending a minimalist understanding of rights that must be protected in this context.

16 As Gibney himself acknowledges. Compare Gibney 2004: 252.

17 Contrast sources cited in Gibney 2004: 33–4.

18 For the notion that the coercive application of state power attracts obligations to respect basic constitutional rights, see, for example, Neuman 1997; discussion in Motomura 1997. Compare also Ackerman 1980: 81–95.

19 Compare Habermas 1997 and also Benhabib 2004.

20 See, for example, litigation under the Alien Tort Claims Act, 28 USC 85 §1350: for example, Alvarez-Machain v United States, [2003] USCA9 327; 331 F3d 604 (9th Cir 2003) (en banc), cert granted[2003] USSC 8418; , 124 SCt 807 (No 03-339), and cert granted, 124 SCt 821 (Dec 1, 2003) (No 03-485).

21 Kennedy 2004.

22 Taylor 2001.

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