Right of the State or Human Right? Conceptual Debates on Asylum

In the context of recent political crises related to migration, questions of asylum have come to play a focal role on the agendas of European politics. This paper examines debates on asylum in a more historical framework by looking at the recognition of asylum as a right in an international and a national setting during the late 1940’s. Two different conceptions of asylum are put forward: asylum as a right of the state, as in the Universal Declaration of Human Rights (1948) and asylum as a human right of political refugees, as in Basic Law of the Federal Republic of Germany (1949). The paper illustrates how the question of whether asylum can be understood as a human right is considerably more controversial than understanding asylum as a state prerogative in the conceptual contestations on the interpretation of the right. Asylum as a right is in the paper connected to the lack of, or escape from, protection of citizenship in the state of origin and, to the questions of state sovereignty, admittance, access and recognition of rights in the country of refuge. The political debates analysed have present day relevance and resonance, not only in situating the contemporary debates in their broader historical context, but also with regard to how the right of asylum and rights of asylum seekers are currently conceptualised and disputed, and how human rights of non-members and ‘outsiders’, persons without the legal and political status of citizenship are practiced and enforced.