Why do refugees exist – not as an empirical, but as a normative, category? What special sense of duty connects us to those people whom we call refugees, and how does this duty translate into asylum? What does the practice of asylum tell us about who we are, as individuals as well as members of political communities? How does one morally justify the special concern we feel for, and consequently the privileged treatment we give, refugees as compared with other foreigners in need? Revisiting the main features of the ethical debate over asylum and refugeehood, this article argues that the 1951 Refugee Convention provides a coherent framework to explain the ‘refugee privilege’. This contention is based on three features of the Convention, namely: its focus on admission and assimilation; its affirmation of the refugee as a privileged alien; and its emphasis, through the key concept of persecution, on the prohibition of discrimination and the identifying value of tolerance. However, one must acknowledge that a proper understanding of the moral duty to admit and integrate refugees does not suffice to explain contemporary state practice in dealing with the ‘refugee problem’ as a matter of solidarity. This article suggests that there are two additional asylum paradigms at work in today’s world: one takes disaster as a motivation for action, and rescue as the underpinning moral and legal imperative; and the other rests upon a duty not to return individuals to specific forms of danger, absent affinity or even compassion. The article examines some of the impacts which the co-existence of these three paradigms has on the global refugee regime, and their implications for law- and policy-making on asylum, both within and among states.
Yudisialisasi Politik dan Sikap Menahan Diri: Peran Mahkamah Konstitusi dalam Menguji Undang-Undang
