This paper draws upon Hannah Arendt's idea of the 'right to have rights' to critique the current protection gap faced by refugees today. While refugees are protected from refoulement once they make it to the jurisdiction or territory of a state, they face an ever-increasing array of non-entrée policies designed to stymie access to state territory. Without being able to enter a state capable of securing their claims to safety and dignity, refugees cannot achieve the rights which ought to be (...) afforded to them under international law. Drawing upon both legal theory and political philosophy, this paper argues that refugees today, just as the stateless in Arendt’s time, must be afforded the ‘right to have rights’, understood as a right to enter state territory. (shrink)

This article introduces the conflictual theory of law as a new way of understanding laws as struggles over meaning, in which actors create and circulate social knowledge to justify their interpretation of rights. The theory addresses law-production processes and underlying knowledge/power constructs, for example, in legislative deliberations and interactions between politicians and the media. It shares pragmatist commitments to a highly participative version of democracy, attained through the active involvement of all members of society in democratic processes and rejects claims (...) of universally applicable legal “truths” in favour of the constant negotiation of laws between members immediately affected by a law. Pragmatism’s antifoundationalism challenges the dualism between citizens and non-citizens, facilitating the inclusion of the latter in legislative deliberations. (shrink)

Using the events in Sweden in the autumn of 2015 as a practical example, this paper examines the question of whether there are circumstances when it is morally permissible for rich, democratic states to close their borders to asylum-seekers. To lay a common ground, the author starts by looking at the right of asylum-seekers, who a refugee is, and what obligations a host country have towards them. Thus, after looking at general human rights, and how they apply to the right (...) to seek asylum, the author turns to the question of who a refugee is, and the difference between refugees according to the 1951 Geneva Convention, and people who are in need of subsidiary protection, before choosing to use UNHCR’s wider definition of a refugee. While acknowledging that refugees have specific rights that other persons in need of protection do not, all asylum-seekers are entitled to not be sent back to a place of danger. Though both groups are entitled to stay on in the country, the temporary status for those in need of subsidiary protection raises some questions about integration and their standing in society and therefore the question of membership rights is discussed before the author returns to the events in Sweden in 2015 and argues that there are circumstances when it is morally acceptable for a country to close its borders to refugees, but that there are limitations when this can be done and for how long. Finally, it is argued that a system that prevents countries from having to – or choosing to – close their borders to refugees is needed. The author discusses whether the grounds for such a system could be found in the work that UNHCR does, and if the DAC agreement can be used as a model for fair distribution. (shrink)