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Abstract:
From the perspective of the dichotomy between the 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 threat against the fundamental conditions of a decent life, and the right to preserve the identity of the political community, seem to be irreconcilable. While the supporters of the particularistic understanding of international order claim the superiority of the identity of the individual political community, the advocates of universalism promote the right to seek asylum without consideration of national borders. Yet, on both sides of the 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 when they refer to rights holders in different situations. Building on this potential rapprochement, 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: (i) what are the specific rights of citizens that make them different from aliens? (ii) what is entailed in the right to refuge? (iii) under which conditions can a right to refuge be claimed? and (iv) 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?
