29 Pages Posted: 30 Nov 2016
Date Written: November 28, 2016
From the perspective of the classical dichotomy between the main paradigms of international law and relations – particularism, on the one hand, and universalism on the other – the right to seek refuge in view of a significant threat against the fundamental conditions of a decent life, and the right to preserve the always fragile identity of the political community, seem to be hopelessly irreconcilable. While the supporters of the particularistic understanding of international order claim the unquestionable superiority of the identity of the individual political community, the advocates of universalism decidedly promote the right to seek asylum without consideration of national borders. Yet, on both sides of the apparent dichotomy things are not as definite as they seem to be at first glance. In fact, not every parochialism is insensitive to the rights of “others”, and cosmopolitanism has to acknowledge that rights should be regarded as differentiated insofar as they refer to rights-holders in different situations. Building on this potential rapprochement – and, therefore, on the overcoming of the classical dichotomy between particularism and universalism – a framework is developed for the recognition of the right of aliens to refuge which, nevertheless, also presupposes that citizens justifiably hold a “thicker” endowment of rights than strangers. On this basis, the following questions are addressed: a) what are the justifiable specific rights of citizens that make them different from aliens? b) What is entailed in the right to refuge? c) Under which conditions can a right to refuge be claimed? d) And, on the contrary, when is it justified to deny the right to cross borders in the name of preserving the integrity of the political community?
Keywords: right to asylum, political identity, universalism, particularism, paradigms of international law, political philosophy, legal philosophy
Suggested Citation: Suggested Citation
Dellavalle, Sergio, Squaring the Circle: How the Right to Refuge Can Be Reconciled with the Right to Political Identity (November 28, 2016). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-24. Available at SSRN: https://ssrn.com/abstract=2876525