Survey Article: Refugees and Location in International Law and Morality

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Survey Article: Refugees and Location in International Law and Morality

Abstract

Philosophers of migration claim asylum seekers’ location is normatively arbitrary. They claim it is irrelevant whether asylum seekers are inside or outside their own state, and that it does not matter whether they are encountered at sea, in a refugee camp, or after crossing into another state. Such locational differences may have pragmatic relevance, but they don’t track anything normative. I disagree. I argue asylum seekers exercise self-help when leaving, and that they can exercise incomplete privilege when trying to enter another state. These normative entitlements must remain linked to be efficacious for refugees and liberal states. Asylum seekers can maintain this link by using their location to impose directed duties on a state. When such duties are triggered by presence in jurisdiction (rather than territory) they are thinner, broader, and more procedural than often supposed. This insight has implications for future research and theorizing on the refugee regime.

Keywords:

  • Keyword: refugees
  • Keyword: jurisdiction
  • Keyword: location
  • Keyword: extraterritorial
  • Keyword: international law

How to Cite:

Cherem, M. G., (2026) “Survey Article: Refugees and Location in International Law and Morality”, Political Philosophy 3(2). doi: https://doi.org/10.16995/pp.28126

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Survey Article: Refugees and Location in International Law and Morality

Max Gabriel Cherem

Philosophy, Kalamazoo College, US

Philosophers of migration “widely acknowledge…location is, at least prima facie, morally arbitrary” for refugees.1 They hold location is “a morally arbitrary criterion for determining the responsibilities of states,”2 that “location should not influence the definition of refugeehood,”3 or that “alienage [being outside one’s state] is an unnecessary condition for establishing refugee status.”4 Such views reflect two claims: (1) requiring people to be outside their state to be refugees is unjustified; (2) location does not affect our duties to refugees more generally.

I disagree. Refugee law sees location as important. I defend the “alienage” requirement that people must have left their state to be refugees, and also the importance of asylum seekers’ location vis-à-vis states. I clarify and critique.

To preview the clarification: refugee law has five location-based “levels of attachment” between asylum seekers and states.5 Refugee status is binary, but the attachments are scalar. They impact which rights apply when and their protection level: some are guaranteed on par with citizens, others on par with “aliens generally” or “most-favored foreigners.” We get a “system of dual contingencies on certain refugee rights.”6 I only focus on the first two attachments (jurisdiction and territory) but acknowledging all five shows how, beyond the “alienage” requirement in the refugee definition, location matters for refugee law more generally. Yet I don’t just highlight legal facts. Location also matters beyond the letter of the law.

To preview my critique: there is a stronger rationale than is typically supposed for both the alienage requirement and why location matters more generally. The traditional defense of alienage focuses on how intervention is a poor response to refugee outflows.7 This view has some empirical merit (section 2), but the importance of location more generally still requires defense. My defense shows how refugees exercise self-help by leaving and incomplete privilege by trying to enter. These two entitlements must be linked to be effective, and asylum seekers can use their location to maintain this link. I analyze the process of leaving and entering (section 3) to show why refugees’ location explains how they can impose directed duties on a state.

This duty-imposition can occur after people leave yet before they enter another state’s territory (e.g. high-seas interdictions). Such encounters establish jurisdictional attachment. Contrary to widespread assumptions, being in a state’s jurisdiction is different than being in its territory or territorial jurisdiction. The classic ‘jurisdiction’ of international law is often taken to roughly line-up with territory,8 but this differs from how human rights and refugee law use ‘jurisdiction’ to extend beyond territory.9 Modern refugee law keeps these two distinct,10 but theorists’ focus on territorial jurisdiction alone risks conflating them.11 In short, I aim to defend refugee law as it exists: jurisdiction and territory not only are but should be separate attachments.

My aim is to introduce philosophers to overlooked features of refugee law and show that we must think more about the importance of location and what being “in jurisdiction” means. I rationally reconstruct select locational features of the refugee regime to reveal what normativity there is behind it. Doing so allows us to see how location impacts state duties (section 4). In short, existing philosophical literature has missed some important normative features of refugee law. Accounting for them reorients us to international institutions and procedural rights.

I. LOCATION MATTERS

A refugee is, “any person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”12 This legal definition has persecution and location criteria. Theorists debate persecution13 but generally ignore location.

This is problematic for a few reasons. First, refugee law is given no authority. Just as it’d be odd to write about contracts by focusing on promises and ignoring contract law, it is odd to theorize about refugees by focusing on neediness but not refugee law. Refugee is a legal category and refugee law differs from human rights law.14 For instance, refugee law is after-the-fact and akin to corrective justice while human rights are more preventative, interventionist, and global-justice oriented.

Second, location is often framed in ways that set-aside or obscure the movement process. For instance, David Miller prefaces a chapter on refugees stating, “I shall not discuss the [location] condition…It does not seem important to me whether a person is currently trying to escape her country, has reached the border of another country, or has already crossed the border. What matters is the kind of threat she faces by remaining or being sent back.”15 This claim about “what matters” primes us to see no normative difference between an internally displaced person, en route asylum seekers, and those in a resettlement state.

Michael Walzer similarly remarks: “Why stop with asylum? Why be concerned only with men and women actually on our territory who ask to remain, and not with men and women oppressed in their own countries who ask to come in? Why mark off the lucky or the aggressive, who have somehow managed to make their way across our borders?”16 His pragmatic answer that we must draw a line somewhere (lest we be inundated) implies that he sees no normative difference. Moreover, his contrast—territorially present asylum seekers versus those oppressed at home—presupposes migration between contiguous states. This framing overlooks those en route in refugee camps, non-signatory states, or international waters.

Even those noticing such space downplay its relevance. Peter and Renata Singer observe, “Ethiopian refugees living in [camps in] the [formerly unified] Sudan would…surely wonder why, if by some miracle, they could set foot on the shores of a country like the United States, they would be entitled to jump the queue over their compatriots who had been waiting patiently for years.”17 They claim there is no difference between refugees in distant camps and those on our territory; aiding those here is morally arbitrary. Yet, their “miracle” hides the process of accessing asylum.

How does location matter? To start, it has definitional importance. Claimants must be “outside the country of [their] nationality.” Refugee rights are for those persecuted by their country and outside it. Refugees are given “legal status and protection…until they…acquire new or renewed national protection.”18 Convention rights are “directly related to the predicament of being outside one’s own country”19 and are “the sort of rights required to facilitate integration.”20 In short, (re)new(ed) membership is the only plausible solution. As once put by the UNHCR Law and Doctrine Director: “[refugee] protection should be seen as a temporary holding arrangement between the departure and return to the original community, or as a bridge between one community and another. Legal protection is the formal structure of the temporary holding arrangement or bridge.”21 This references respect for refugee rights and the three durable solutions:22 voluntary reestablishment (or repatriation),23 local integration,24 or (often distant) resettlement. Refugee rights facilitate voluntary return or transition between states. They are not “entitlements of generic utility,”25 but rights for a specific population. There must be a “match between the beneficiary class and the remedy”26 for pragmatic and theoretical reasons.

Location also matters since the Convention contains a “five-part assimilative path” defining a “continuum of legal attachment to the asylum state.”27 A refugee may be:

  1. in state jurisdiction “in the sense of being under its control or authority,”28

  2. physically present within state territory,

  3. lawfully present (during claim processing),

  4. lawfully staying (after recognition),

  5. a durable resident (after residency requirements).

Protection for some rights is on par with “aliens generally” or “most favored foreigners.” For instance, claimants in jurisdiction have public primary education rights on par with citizens but their public secondary education rights are on par with aliens generally; lawfully staying refugees have wage-earning employment rights on par with most-favored foreigners. This “protection level” aspect of refugee law merits mention, but I will not dwell on it.29

It suffices to note that the attachments ameliorated some dilemmas. First, refugee status is both declaratory and potentially verified. Those who leave their country are refugees if they fit the definition. But since not all claimants are refugees, states may verify each claim via Refugee Status Determination (RSD).30 Declaratory status has little power, but it trumps verification in that RSD recognizes people because they are refugees; people are not refugees because they are verified. If a state lacks RSD it must accord refugee rights to declaratory refugees in its territory or jurisdiction over time.31

This raises a question: do refugee rights apply at declaration or verification? The answer drafters devised used the attachments: “pending status verification”32 states should “provisionally …honor basic refugee rights” corresponding to the first three attachments: jurisdiction, territory, and lawful presence. More rights apply after refugees are lawfully staying. Full rights accrue once durably staying. Hence we get Table 1.

Table 1: Levels of Attachment, and Rights that Attach.

LEVEL OF ATTACHMENT RIGHTS THAT ATTACH1
Jurisdiction non-discrimination [among refugees] (Art. 3), property (Art. 13†), access to courts (Art. 16 (1)), rationing (Art. 20), public education (Art. 22, (2)†), fiscal charges [tax equity] (Art. 29), nonrefoulement (Art. 33), [facilitation of] naturalization (Art. 34)
Territory (“in”) religious freedom (Art. 4), administrative assistance (Art. 25), identity papers (Art. 27), non-penalization for illegal entry (Art. 31),
Lawful presence (“lawfully in”) self-employment (Art. 18†), freedom of movement (Art. 26†), protection against expulsion [to third state] (Art. 32)
Lawful stay (“lawfully staying”) freedom of association (Art. 15‡), wage-earning employment (Art. 17‡), [right to continue] liberal professions (Art. 19†), right to housing (Art. 21†), public welfare (Art. 22), labor law and social security (Art. 24), travel documents (Art. 28).
Durable stay exemption from legislative reciprocity (Art. 7(2)), artistic and industrial property (Art. 14), legal aid and exemption from judgment bonds (Art. 16 (2)), exemption from labor market restrictions (Art. 17 (2))

  • 1 † on par with aliens; ‡ on par with most favored foreigners. Table based on Sharpe (2014). For a few rights there is some slight debate as to the level.

Human rights have no such sliding scale.33 Yet this makes sense for refugee law. Refugees under state jurisdiction (e.g. high-seas interdictions) have rights to rationing (Art. 20), against discrimination (Art. 3), and against ‘refoulement’ (Art. 33)—being returned. But the right to wage-earning employment (Art. 17) accrues to lawfully staying refugees. Giving declaratory refugees a right to wage-earning employment at first contact is unworkable. The attachments encourage states to meet their duties while discouraging migrants from misusing refugee claims.

The attachments also partly address fairness. Some states are far from refugee source states or geographically separated; others are easily accessed. If claimants received all refugee rights just by entering jurisdiction or territory, states with bad neighbors would be overburdened.

Drafters knew this. The Canadian representative noted Canada was “separated by an ocean from the refugee zones. Thanks to that situation, all refugees immigrating to Canada were ipso facto legally admitted and enjoyed the recognized rights granted to foreigners admitted for residence.”34 In the 1950s “overseas asylum states” like Canada “mainly…receive[d] refugees preselected for resettlement.” But for states near ‘refugee zones’ the attachments ensured “any unauthorized refugee…would benefit from [basic] protections” but “not…immediately acquire all the rights of ‘regularly admitted’ refugees…preauthorized to enter and reside.”35 This gave time to assess claims or find other remedies. If an applicant’s state improved, full RSD may be moot.36 Slowing the accrual of rights may have mildly reassured states with bad neighbors.

Many states initially restricted the Convention’s scope.37 The 1967 Protocol was an advance in that it abolished such limits. Yet, as the world changed the attachments created issues. When the Convention was drafted international travel was less common. But from the 1970s onwards ever more people traveled farther distances or passed through non-signatories. Such “new asylum seekers,” “jet-age refugees,” or “extra-regional arrivals” did not fit the old model of movement.38 Movement via non-territorial space or non-signatory countries increased cases when jurisdictional and territorial presence were not achieved together.

1980s refugee scholars noted while “traditionally refugees have fled to a neighboring country,” those arriving “from outside the region…increased sharply.” They came via “countries of transit” without protection.39 The trend of crossing ‘transit’ spaces increased cases where states could point to places asylum seekers had been en route to disclaim responsibility. This yielded refugees in orbit: declaratory refugees,

who, although they have not been placed in immediate jeopardy by being rejected at the frontier or otherwise sent back to the country where they are liable to persecution, are not granted…refugee status, in any country…As a result they are shoved to one country after another…Take…a young Eritrean refugee, who has entered Italy and a fortnight later Switzerland. He cannot be recognized as a refugee in Italy, as [in 1978] that country still applie[d] the geographical limitation to the 1951 Convention. Nor can he be recognized in Switzerland, because a prerequisite for refugee status in that country is that he has entered Switzerland within ten days from the day he left his country of origin. He has to go to a third or perhaps a forth [sic], [or] fifth country, but can be met with the answer that another state is responsible for him. But which state has that responsibility?40

Today states “shove” asylum seekers back-and-forth less frequently, but there are still many “in orbit” who have left but not yet “landed”—stuck in physical or legal space41 where redeeming a claim is difficult. Refugee camps are often a prime example.42

In sum: the attachments did not adequately address cases where someone had fled but not yet established an attachment or not done so clearly. Convention framers were aware of such cases but they were not envisioned as typical.43

II. TRADITIONAL DEFENSE

Location matters legally. But should it? Why defend “the contentious position that physical proximity should make a difference?”44 Should “a conjunction of need and proximity”45 matter such that states “must ensure the protection of all refugees who arrive” yet not “alleviate the suffering of [refugee] strangers far away?”46 I’ll start by shoring up alienage.

A traditional defense of alienage runs as follows: if people are “within the state that is persecuting them” then “military intervention is often the only way to provide refuge.” Yet “such intervention is generally impermissible”47 (e.g. proportionality, etc).48 Others are “skeptical that armed intervention…is a clear remedy for refugees”49: it can do greater harm or normalize interventions. So, alienage makes sense given the general impermissibility or unworkability of intervention. Protection and (re)new(ed) membership are the only plausible remedy.

Many are unconvinced. Oberman notes, “persecution…can sometimes be treated at the source” via “economic sanctions, military force, or some other form of intervention.”50 Beaton claims, “increasing the provision of humanitarian visas and expanding family reunion laws, negotiations, imposing…arms embargoes, and offering assistance to internal organizations” can help potential refugees “in place”51 or to leave. The international community could “creat[e] a [in-country] safe haven with a no-fly zone,”52 or “plac[e] rescue boats in international waters …close to the border of the offending state,” or “facilitat[e] exit” with “as many accessible, safe and regular routes to safety as possible.”53

These options confuse human and refugee rights. Several try to induce human rights compliance rather than secure refugee rights.54 This strategy of ‘normatively entrapping’ states into human rights compliance (e.g. via sanctions or embargoes that extract human rights concessions) can work. But it takes decades, a robust “global human rights polity,”55 and progress can be undone by powerful states who liberalize in some areas yet backslide in others.56

What of safe-zones, the “protection-by-presence” of humanitarian staff, or NGO-aid? What of UN peacekeepers or the Responsibility to Protect (R2P)? Sadly, in regime-induced mass displacement such options benefit states but not human or refugee rights.57 Potential refugees are contained, the “international community” appears to respond, and protection burdens shift to actors lacking capacity to meet them. Moreover, R2P norms don’t always serve justice.58

These pragmatic reflections bolster the traditional defense. But the theoretical critique stands: it is logically possible to address persecution so quickly that severed membership is fixed before someone must flee. And, even if alienage has some pragmatic merit, I must still explain why refugee law generally should see location as important. I proceed by clarifying the location-based entitlements in accessing asylum.

III. TROUBLING THE STANDARD FRAME

Theorists often focus on refugees’ needs but not on how needs arose or which actors are responsible. This overlooks the unique normative position of refugees. I claim refugees are wronged and can self-help by leaving. Then, by entering (or overstaying), they use incomplete privilege to impose directed duties on a state. These exit and entry entitlements must stay connected for refugee status to function.

A. Wronging

Many claim refugee status is grounded in a person’s lack of secure access to basic needs and the international community’s ability to help.59 This “humanitarian” definition often sees climate change migrants as refugees. Location is a proxy for access. Normatively, this view is grounded in need.

Those advocating a “political” definition critique this view.60 Such critiques are correct, but I won’t dwell on them here as they focus on persecution and my topic is location. I must say something on persecution (it triggers everything else), but I’ll stick to a core point: persecution wrongs refugees. Wronging is more central to refugee status than harm or need. Let me explain.

Some refugees do not suffer harm and are (on aggregate) “better off”. Imagine an official is abroad. Her regime changes. She fears persecution. She has overseas accounts and is somewhere with similar culture and language. The move is a boon. She is a refugee but never lacked secure access to anything.61

Connected or wealthy people who flee or stay abroad before persecutory risk blossoms into harm are not “less of a refugee” than people who have suffered harm or are badly-off. We are misled into thinking refugee status is grounded in need or harm since deprivation often accompanies persecution. But refugee status is rooted in the wrong committed or facilitated by the state when it or (endogenous, controllable) actors it tolerates unjustifiably impose risk by effectively severing someone’s membership for being Communist, Black, Kurdish, atheist, LGBTQ+, etc. Whether risk has ripened into harm (or if there is a greater chance than not that it will) is not the most basic question.

B. Self-help

Why does it matter that refugee status is grounded in wrongs? Wronging explains why asylum seekers may use location-based self-help to regain membership. People whose membership has been illegitimately severed by persecution may not only leave (like everyone), but can do so in unusual ways.

Zöe Sinel explains how self-help is different than helping oneself.62 In helping oneself, one uses liberties that are “incidents of the broader claim right”63 one has. For instance: Amy has a property right in her yard that sets a relation between Amy, Bob,64 and an act (staying out). Her right is explained by others’ duties. Saying she is “at liberty” to build a fence means others have no right to interfere; she can help herself to ensure her property is respected.

In contrast, self-help arises in response to a “wrong vis-à-vis [a] right.”65 Paradigmatic self-help “types” include recaption, abatement, ejection, or self-defense. “The philosophically interesting feature of self-help” is that it permits one “to do something that, absent the self-help justification, would be a wrong.”66 Self-help makes “defeasibly permissible what was otherwise legally impermissible.”67

For example: once a colleague left campus to bike home. She soon returned as her phone was gone from her bike bag. She used my laptop to GPS-locate it in a nearby home. I texted: “We see your location. You have stolen property. We are outside. Return it.” An MBA student called, said he “picked it up for safe-keeping” (?!), and returned it. This was recaption: “the recapture or repossession of wrongfully held chattels.”68

If she saw him take her phone she could’ve wrested it from him, even if this twisted his wrist. Had texting failed, she could have trespassed in his yard, banged on the door, and loudly called for campus security. In neither case would she be assaulting, trespassing, or disturbing the peace. Usually, it is wrong to wrest something from another or go screaming into their yard. Here, it wouldn’t be. Normally, a right does “not allow its bearer to interfere with the person or property of another”, but self-help is “a privilege borne of another’s wrongful interference with one’s rights.” A self-helper can “act against her wrongdoer in ways that would not [otherwise] be permissible.”69 A general liberty against all becomes a personal liberty against the wrongdoer.70

This distinction helps illuminate the position of refugees. Asylum seekers are wronged. A state agent, institution, or persecutory social group basically says: “You can be X (full member) or Y (member of a relevant group), not both.” Asylum seekers are created by “compossibility-negating” moral coercion71 about membership. People flee or stay abroad as their membership and its protections are (credibly threatened to be) illegitimately severed. This lets them self-help.

How we think of this depends on how we think of citizenship.72 If it is like property,73 recaption is our model: just as someone may try to recover property another has taken, asylum seekers try to recover their membership. If citizenship is like a contract, abatement is our model: just as a tenant can withhold rent if a landlord violates (basic) lease terms, asylum seekers withhold support (e.g. presence, taxes, labor) from a regime violating the basic social contract.74

I claim asylum seekers can self-help by leaving in normally wrongful ways: e.g. using stolen or fake IDs, bribery, or mild force. For example, in 1989 Soviet pilot Aleksandr Zuyev drugged his comrades with a cake (?!), shot a mechanic in the leg, stole a jet, and flew to Turkey before coming to the US. Normally wrongful conduct seems more permissible here.75 Likewise, it is wrong to enrich bad actors or imperil innocents. But asylum seekers may use smugglers, expose left-behind family to risk, or use a stolen passport to leave and regain membership.

Another’s wrongful interference with my rights grounds a “privilege to commit a defensible wrong.”76 As the defensibility of a wrong involves proportionality, the facts often make self-help impossible. For example, the repo man can self-help by towing my debt-defaulted car from the street. But if the facts are different (it is in my garage), he cannot since he’d wrongfully interfere with things that were not the object of his (company’s) right.77

While this distinction illuminates the normative position of refugees, we may worry it has limited use. Asylum seekers are often very constrained by facts. Leaving surreptitiously or normally is often wisest. While it is logically possible for persecuted people to proportionally self-help against a persecutor, it is impractical.78 What they often can do is leave, try to enter a state, and immunize themselves against their “sovereign’s claim to exercise jurisdiction.”79

We now have another party: the state assessing the claim and facilitating protection and (re)new(ed) membership. Asylum seekers may self-help against their state, not others.80 I claim that the persecution asylum seekers suffer not only yields the ability to self-help but also grounds something like “incomplete privilege.”81 This is what limits a state’s right to exclude. By trying to enter asylum seekers impose directed duties on states.

C. Incomplete Privilege

Feinberg illustrates the right of necessity in refugee claims:

You are on a backpacking trip…[A]n unanticipated blizzard strikes…[Y]our life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates…[Y]ou help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm.82

This is incomplete privilege: an imperiled person enters and uses another’s property without permission to save herself. Asylum seekers who enter a state or overstay without authorization are a rough analog.83 The canonical formulation is that trespass to save life and limb is, “so far privileged as to deprive the person whose interest is invaded or threatened with invasion of the privilege which he would otherwise have to terminate or prevent the invasion.”84 People acting of necessity can enter and use property without permission—but, they should later compensate.

Incomplete privilege yields a classic puzzle: (1) Hiker acts permissibly by breaking in and using Owner’s Cabin; (2) Hiker owes Owner compensation; (3) Hiker owes compensation only if he wrongs Owner.85 These cannot all be true. If hiker acts permissibly he has not wronged anyone and owes nothing. If compensation is owed, owner was wronged and hiker acted impermissibly. Yet, “there is widespread consensus that the hiker would be justified in breaking into the cabin”86 and that the owner should be compensated.

Honoring both thoughts supposes necessity grounds a justification or excuse.87 This reconfigures culpability. A popular reconfiguration is to permit hiker’s actions in one way and prohibit them in another: hiker commits “a non-criminal violation of civil property rights.”88 Criminal law permits the act as there is no penalty and authorities cannot be called to merely enforce owner’s rights. Civil law prohibits it and demands compensation. The reasonableness of hiker’s conduct re-calibrates our response and thereby changes the content of the rights at issue.

Alternatively, the sparsest solution leaves the underlying rights intact and claims the hiker (understandably) violated owner’s property rights. The absent owner has no positive duty to aid hikers (e.g. leaving her cabin unlocked). Yet if she returns to find a hiker, she cannot eject him into the storm. For “the absence of a positive obligation to aid does not entitle someone to remove another from a position of safety into the path of danger.”89 This raises questions about the case where an owner is home (section 4).

Lastly, some propose the hiker is permitted to enter and “infringes” yet does not violate owner’s rights. This view distinguishes between “doing something one ought not do and unjustly doing something one ought not do.”90 This can seem fishy since, for some, doing what one ought not do simply is unjust. Here context does not alter a right’s content, it is just that we now have a category (infringement) opposed to rights that doesn’t violate them.

I don’t need to choose among these solutions. I only want to draw a parallel to cases where asylum seekers (try to) enter (or overstay in) a state without permission. Scholars have occasionally noted that something similar to incomplete privilege is part of refugee law.91 My claim is that neither complete deference to the rights of a “trespasser” nor those of an “owner” is defensible. Moreover, this dynamic of necessity shows how general duties get directed by where asylum seekers go to redeem their claim. This is part of the normativity behind existing law.

D. Location Directs Duties

“Perhaps the most important innovation of the 1951 Refugee Convention” was Article 31, which “protect[s]…refugees who travel to a state party without authorization”92:

[states] shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence [States] shall not apply to the[ir] movements…restrictions other than those which are necessary and [even then]…only…until their status…is regularized or they obtain admission into another country.93

Asylum seekers should not be prosecuted under criminal or immigration laws for their illegal entry or presence.94 They must, “make themselves known to officials…within a reasonable period of time, and…their breach…[be] necessitated by their search for protection.”95 As “exemption from penalties” is granted “because of the urgency of flight”96 it requires a showing of necessity.

Article 31 is not just grounded in the bare fact of a treaty. It can be seen as the codification of the principle behind incomplete privilege: just as a necessitous hiker can trespass and be exempt from criminal penalty, under refugee law people may enter states without authorization and be exempt from normal penalty. Their reasons are crucial. They must have entered or stayed due to a certain kind of risk. A hiker cannot enter and stay because “the cabin looked comfortable”97; an asylum seeker cannot do so for reasons beyond fleeing persecution. Entrants impose a duty on the “owner” to verify they are there of necessity (status adjudication) and refrain from ejecting them in the storm (non-refoulement). The verificatory step is important.

Asylum seekers use incomplete privilege when trying to enter (or overstay). They do so after having self-helped by leaving (e.g. to the high-seas). That act triggered a general duty of states to declaratory refugees: don’t block their way (e.g. via maritime “pushbacks”), refrain from refoulement, and help (e.g. UNHCR donations). But, when asylum seekers press their right of necessity against a state or its agents, they impose duties on that state; their location takes states’ generalized duty towards refugees as a group and directs it.

The intuitive way location can direct duties is shown by an altered cabin case:

Cabin 2: You are hiking in the wilderness and imperiled by a freak blizzard. You stumble into a clearing with two locked and vacant cabins.

The hiker can break into either cabin. She may choose the bigger one since it has better chances of food and shelter. If the “clearing” is a large valley and she huddles in a woodshed on her way, she does not need to stay there. After rest, she may break into either cabin.

This is clear in territorial cases. Imagine a Russian asylum seeker flees to Belarus, where protection is inadequate.98 She can move on to Poland or Lithuania. Crossing to either transforms the international community’s general duties to refugees as a class into directed duties. If she crosses to Poland, Poland now has limited99 but specific protection duties towards her. She uses her location to give duties direction.

Non-territorial cases also work. Imagine an asylum seeker has self-helped by leaving to the high-seas. Any encounter (e.g. interdiction) as she tries to enter triggers the first jurisdictional attachment. By establishing jurisdiction there is a need for this state to respect the human and refugee rights of this claimant. The encounter gives general duties a direction—even if in this case such duties involve claim verification to respect instead of to directly protect rights (below).

The 1950s movement paradigm meant jurisdiction and territory were nearly always established together. Asylum seekers often only had one choice of where to go. This obscured how they used their location to direct duties. Contiguous border crossings make the same act show up as both self-help and incomplete privilege, so we tend to lump them together. I have shown they are conceptually distinct moments in seeking asylum. This is clearest when the distinction arises in practice via encounters in spaces of jurisdictional but not yet territorial control (e.g. interdictions). Such cases show why the conceptually distinct moments must be functionally connected to secure the aim of refugee law: protection and (re)new(ed) membership.

IV. NEW DIRECTIONS

I have defended the normative significance of location. Asylum seekers experience persecution that illegitimately severs their membership. They self-help by leaving (or overstaying), and in the process may act in normally wrongful ways against their own state. Their plight also grounds a dynamic like incomplete privilege to enter a state (or overstay) without permission and be exempt from normal penalty. This directs duties between a claimant and state.

Self-help gives a better normative explanation of the alienage criterion than arguments about how armed intervention to protect potential refugees risks bad outcomes: when asylum seekers self-help by leaving it signals they want to pursue the individual remedies of refugee law.100 Incomplete privilege gives a better explanation for why a state has a duty to help a refugee than merely that it signed a treaty: the initial attachment levels are the legal codification of a duty arising from necessity101 like when an imperiled person enters another’s property and imposes duties (of at least restraint).102

A. Ethical Territoriality: What It Is, Why It Is Not Enough

I used a partial analogy above on purpose.103 Let’s fix it. For refugees the fully proper analogy is:

Cabin 3: You are hiking near the border of your state. Your dictator resents you for your religion. He uses a weather dominator machine to create a storm threatening you. You can escape by crossing to adjacent states.

This version replaces cabins with states and reintroduces persecution, which had been ‘cabined-off’(!) to focus on location. The storm is now a man-made risk illegitimately imposed on certain people. This version makes some of my assumptions more apparent.

First, I assume states usually have the right to exclude much like property owners do.104 Second, like the imperiled hiker entering the cabin, I assume we can make sense of (some initial) refugee rights as an exception to or constraint on a state’s normal right of exclusion.105 Asylum seekers can impose at least some minimal duties by their presence. State duties to an asylum seeker are directed by the fact that they have come into a place it controls. Taken together, these assumptions resemble a view called ethical territoriality: “the conviction that [basic] rights and recognition should extend to all persons who are territorially present within the geographical space of a national state by virtue of that presence.”106

Ethical territoriality contrasts with a status-based view that sees migrants’ basic rights as wholly rooted in state discretion and consent. On a status-based view, a state “immigration and nationality regime” can include or exclude whomever for whatever reason, or craft admission such that “different people…enjoy different sets of rights and recognition” where any “progress from less to more” rights “presupposes and requires state consent.”107 On this account affirmative and explicit state authorization has paramount importance for migrant rights; the unauthorized or irregular are highly vulnerable.108

Ethical territoriality denies the state has this sort of broad discretion with respect to the basic rights of migrants who are here. Instead, it claims territorial presence “acts as a limit on state discretion” and imposes a “requirement of a particular kind of state action towards individuals within that state’s territory.”109 More specifically, “every person who is territorially present…is entitled to fundamental forms of due process, to contract and property rights, to access to the courts, and to core rights in the educational and employment spheres.”110 Naturally, temporary gradations in legal status and rights are possible, but the long-term “maintenance of partial membership statuses” is seen as “illegitimate under liberal and democratic principles.”111

Many theorists hold the view112 but give different explanations for “what it is about the fact of sharing territorial space” that has “particular ethical significance.”113 They variously claim it is social bonds, anti-caste commitments, or territorial jurisdiction that matters.114 For instance, Michael Blake claims the state uniquely forms a web of politically and legally structured liability—a system of rights and obligations. But a state is “authorized and obligated to protect and fulfill human rights only within a particular part of the world’s surface.”115 This means that while obligations to respect human rights are global, protecting and fulfilling rights is an “emphatically local” project.116

On this version of ethical territoriality, someone who “swims to the US” from France117 or walks across the Windsor-Detroit bridge from Canada “changes the normative position” of US institutions and persons regarding her “basic human rights”.118 This change is triggered simply “in virtue of her presence.”119 If her basic rights are not “adequately protected”120 at home, we are “obligated to become obligated”121 and let her stay.

Ethical territoriality is a view about migration and territory generally, not refugees in particular. It works for asylum cases with contiguous crossings where self-help and incomplete privilege show up as the same act.122 Such cases make the difference between survival migrants and refugees irrelevant: needy people are here so we can just let them stay.

But this view leaves out many cases by overlooking the uniqueness of refugee claims and mere jurisdictional attachment. Even if we agree vulnerable people here (on our territory) should be helped, there are legitimate debates about the direction of duties (e.g. which state has what responsibilities) in cases of weak or unclear attachments. What of migrants in a non-signatory like Jordan with a UNHCR presence?123 What about migrants sailing to Italy, interdicted by its Coast Guard, and handed to Libya?124 What of migrants shipwrecked onto a British military base on Cyprus?125 People stuck in “in-between” spaces—e.g. non-signatories, places with no attachment, places with something like attachment to an international agency, or where signatory attachment is weak or contested—are marooned between the declaratory and verified senses of refugee status. While not all people in such spaces have a legal attachment, jurisdictional attachment to a state forms a thin bridge between declaratory and (eventually) verified status with associated rights. If this is so, what normative difference does location in jurisdiction make for an exited asylum seeker a state stops before territorial entry?126

B. States Are Not Cabins: Sovereign Jurisdiction Is Not Property Ownership

Revisiting the sparsest solution to the cabin case analogy is somewhat helpful here. If the owner returns and finds the hiker inside, then fait accompli—hiker has immunity from ejection into the storm. But if the owner is home when the hiker knocks, the hiker lacks a power to disable her right to exclude. Crucially, this does not mean she can exclude in any way whatsoever.

Jules Coleman and Arthur Ripstein hold this view. Coleman notes: “had the cabin owner …been at home, [s]he could have excluded the backpacker” and “act[ed]…within [her] rights.” But, doing this and nothing else would be “so unreasonable as to subject the right holder [owner] to moral, if not legal liability, for the consequences of exclusion”127; it’d be an abuse of rights.128 An at-home owner still has “the power to exclude, but…may be responsible for the consequences of wrongfully exercising that power.”129 Let’s unpack this.

Many feel an at-home owner can exclude provided she does so in a way that is not an abuse of rights—for instance, by calling the authorities in town and passing gear or a map to a nearby cabin via milk-door. The intuition is that even in such a case an at-home owner may exclude, but she must do so in a way that gives some attention to a would-be entrant’s welfare.

The view is plausible since, if the owner is home, personal rights are on both sides.130 We often “emphasize interests…attach[ed]…to the cabin owner’s person” like “safety and privacy”131 over her property interests. This is why the classic case seems easier than an at-home owner version. But, for an at-home owner, if her concerns about opening the door are not a pretext132 and there are other (even paltry) ways to aid, she is not abusing her rights by excluding. Even if she has a directed duty pressed on her by the hiker’s necessity, she doesn’t have to aid optimally.

On this view, the difference between a classic and an “at-home owner” case can be understood along the lines of misfeasance versus nonfeasance. This is the difference between “wronging someone and failing to confer a benefit,” or between “wrongfully doing something to” someone (e.g. taking something) versus “failing to do something for”133 someone that they are not entitled to—even a thing of great help. In property contexts the distinction tells an owner, “She does not need to use [her] property to assist others in any way” not even to “preserve another person’s life”. Her property “does not need to be used in a way that best serves the global purpose of maximizing or increasing overall autonomy or usefulness.”134

Happily, a weakness of the analogy is a strength for my argument. The cabin cases involve property not sovereignty. As Ripstein explains, “property has an external norm—keep off—because it has no internal norm. Sovereignty, by contrast, has an external norm—don’t interfere—because of the specific internal norm that it has.”135 This norm requires the sovereign to act on behalf of the people “in its charge.” This mostly refers to those in its territory but always also refers to many people beyond its territory.136 Given this difference, those trying to enter a state cannot be excluded in the exact same way as from a cabin.

The at-home owner can exclude yet avoid committing an abuse of rights if she notifies the authorities or gives winter gear. She can but need not “do more”—e.g. let him into the lockable mudroom. She can exclude in this way since her cabin exists against the backdrop of sovereignty; her property exists in (and is made possible by) a sovereign legal system oriented to the public good. Her property simply gives her negative authority to permit or forbid use.137

By contrast, modern sovereignty confers authority to impose affirmative obligations in virtue of its internal norm. A sovereign creates a web of legal and political institutions that secures equality on behalf of those in its charge.138 There is a system to respect, protect, and fulfill rights. Normally, the sovereign “has no such duties” to would-be entrants (e.g. students, workers, tourists) “who wish to enter its territory” and become part of its charge—“provided that they are not in immediate peril.”139 Clearly, this caveat is important for the issue at hand.

Just as an at-home owner must do something for the hiker in order to exclude yet avoid an abuse of rights charge, an excluding state must do something for those “in immediate peril” yet stopped short of entry. In an “at-home owner” cabin case, this can be something very sparse because a bare minimum of respect is vouchsafed by the backdrop of a state’s legal system and institutions. But if a state wants to exclude an individual trying to enter, the ‘something extra’ needed to respect rights is vouchsafed by the backdrop of refugee and human rights law as it shows up in extraterritorial jurisdiction.140 Put differently, if a state refuses to protect or fulfill rights by granting admission, it must still make sure it respects a would-be entrants’ rights. Unlike the cabin owner’s decision to give a coat or a map, the state has less discretion to determine how it will achieve such respect as this is determined by extraterritorial jurisdiction in international law. I claim that, for refugees, political philosophers must pay more attention to the duties flowing from jurisdictional attachment, as it specifies the minimum duties states must meet even when they exclude those in their jurisdiction by sending them elsewhere.

C. A Way Forward: A Jurisdictional Research Agenda

Some lament that, “physical arrival is currently the most common mechanism by which states’ imperfect obligations to host refugees are transformed into perfect obligations towards particular asylum seekers.”141 The assumption behind the lament is that “arrival” is territorial and that this is an outdated relic. Yet, if ‘arrival’ means jurisdictional attachment, then using location to direct duties in less problematic and a permissible convention. While there may be better allocation principles,142 it is valuable to normatively reconstruct the duty direction mechanism we already have to render its content and application more precise.

Jurisdiction does not start and stop at borders. Indeed, “recent jurisprudence suggests at least three situations in which refugees outside a state’s territory are under its jurisdiction and hence entitled to claim the benefit of the Convention rights”143 that go with jurisdictional attachment. If state authorities exercise effective control over (i) individual persons or (ii) a space abroad (e.g. detention centers, occupation),144 or if they (iii) exercise “public powers” abroad,145 then jurisdiction may obtain and refugee or human rights duties apply. The first two are the “personal” and “spatial” models of extraterritorial jurisdiction and the most common.

For example, in the Medvedyev and Hirsi cases French and Italian authorities interdicted ships and detained or transferred passengers.146 The European Court of Human Rights (ECtHR) found the passengers were in the jurisdiction of a European Convention on Human Rights (ECHR) state party which had violated rights. Likewise, in the Al-Skeini and Al-Jedda cases, United Kingdom soldiers killed or detained Iraqi nationals in Iraq amidst the war and occupation.147 The UK was found to have had extraterritorial jurisdiction given the nature of its presence and activities, and to have violated ECHR rights. In this and other cases148 the court rejected an “all or nothing” approach to human rights, and found ECHR “rights can be ‘divided and tailored’”149 in cases of extraterritorial jurisdiction.

My aim is not to defend a particular model for when extraterritorial jurisdiction applies. My goal is only to spur more adequate theorizing by sketching why there may be a normative difference between the duties imposed by jurisdictional versus territorial presence (above) and then to articulate what that difference may amount to in broad terms. For those purposes, my task is to flesh out what it might plausibly mean to minimally respect the rights of asylum seekers in jurisdiction. As I noted, if states have effective control150 over asylum seekers yet refuse to protect or fulfill their rights by admitting them, then “something more” is needed to make sure their rights are respected.

Marko Milanovic’s “hybrid model” of extraterritorial jurisdiction does a good job of specifying this “something more.” He claims, in isolation, the personal and spatial models “collapse.”151 He therefore proposes a “hybrid model” that integrates them. His goal is provide “a relatively stable balance between…universality and effectiveness”152 that has a “sensible, principled foundation”153 and that is also jurisprudentially “possible under the text of the relevant human rights treaties.”154 What does the hybridization look like?

The hybrid model uses something like the traditional distinction between respecting rights, on the one hand, and protecting or fulfilling rights on the other—but with a twist. Often, this distinction is understood as the difference between “two…types of obligations”: negative obligations to respect rights and positive obligations to protect or fulfill them. By contrast, the hybrid model parses the difference as that between a state’s responsibility to guard against violations committed by its own “organs, agents, or other persons whose acts are attributable to it” versus its responsibility to guard against violations “by third states, private individuals, or non-state groups…against other private individuals.”155

On this view, in contexts of extraterritorial jurisdiction the line between respect for rights versus protection or fulfillment becomes the line between “those obligations whose effectiveness depends only on the state’s control over its own agents” and those obligations “which require control over territory in order to be effective.” The first category (extending beyond borders) is made up of a thin type of “positive obligations,” often “procedural or prophylactic [in] nature,” that “exist solely to make the state’s negative obligations truly effective…[These] apply coextensively with the negative obligations themselves.”156 For instance, a negative obligation that state agents refrain from coercing confessions may require procedural or prophylactic positive obligations: e.g. legal procedures for investigating complaints, recording interrogations, an “internal affairs” division, etc. Such obligations apply wherever a state or its agents act—be it a police station at home or a CIA “black-site” abroad.

The second category “flows from the state’s duty to secure or ensure human rights or prevent violations.” This type of obligation “require[s] a threshold that sets out the limits of realistic compliance.” That threshold is “control over territory.”157 For instance, a state has an obligation to “prevent private violence or discrimination.” But, it can only reasonably do so if it has effective control over the territory where such conduct takes place. In short, the hybrid model threads the needle between “universality and effectiveness” in a way that saves but reimagines the distinction between respecting rights versus protecting or fulfilling them.

If this is right, then a genuinely jurisdictional theory of (in)exclusion establishes more and less than views rooted in “ethical territoriality”—especially for refugees. The duties imposed by an encounter would have wider scope, thinner content, and more applicative stringency than views where territorial presence is what triggers duties. Such duties would have wider scope as they arise earlier in the migration process: after asylum seekers leave yet before they enter territory. They have thinner content since, if the hybrid model is correct, states encountering migrants extraterritorially can respect rights via positive duties of a procedural and prophylactic nature. If there is a “protection elsewhere” arrangement with a partner state, these duties are thinner than traditional positive duties where a state must directly protect or fulfill rights of territorially present people over the long-term by making them members. Lastly, as so much hinges on this thinner content, especially when there is “simultaneous (even if differentiated) responsibilities”158 between partner states, applicative stringency should be heightened to make sure mistakes are avoided and, if they occur, can be remedied.

These procedural and prophylactic duties would not amount to what we often think of as “positive duties” in refugee contexts: welfare state resources provided on a long-term basis. Instead, they may amount to things like remote real-time translation, legal counsel, status explanations, procedural rules on transfer into a partner state’s territory, or even confidential appeals of exclusions from abroad. Supranational oversight would be necessary for implementation. Quality and speed of status adjudication would be paramount so as to avoid the rights violations that go with indefinite limbos.159 Concretely, such duties amount to something like regional or “global procedural rights,”160 multilateral oversight, and new global institutions.161

Naturally, some will disagree. Maybe the hybrid model is not the best way to think about extraterritorial jurisdiction,162 or perhaps it is at odds with some human rights jurisprudence from various bodies. Some may think the duties triggered by extraterritorial jurisdiction are too thin, too procedural, or that their operationalization via institutions that do not yet exist is too distant from our non-ideal world. It seems troubling that, at least in theory, such duties could conceivably be met by “proposals to lease or purchase land from [non-signatory] states on which to [temporarily] shelter refugees,”163 or by “floating hotspots…[that] include initial health, security, identity checks and fingerprinting…before…further processing”164 on state territory. Yet, I have only sought to challenge the widely held view that location does not make a normative difference with respect refugee debates. I have also outlined a research paradigm that may move us past the “open versus closed borders” false dichotomy, at least for refugees.

Notes

  1. Beaton 2020b, p. 153. [^]
  2. Gibney 2000, p. 314. [^]
  3. Beaton 2020b, 176 defending “Shacknove’s claim.” [^]
  4. Shacknove 1985. Kukathas 2016. Dummett 2001. Oberman 2025. [^]
  5. See Hathaway (2021, pp. 173 ff) for several hundred pages on the attachments. Others give them less attention. The attachments were overshadowed when (more generous) human rights became legally binding. [^]
  6. Sharpe 2014, p. 8. [^]
  7. Beaton 2020b; Oberman 2020. [^]
  8. At least, philosophers often construe jurisdiction this way. There are senses of classic jurisdiction (e.g. nationality, passive personality, protective principles) that do not even roughly align with territory. If philosophers acknowledge these it is to move past them (e.g. Blake 2013, fns. 15, 18). I thank a reviewer for suggesting this note. [^]
  9. See Bosniak (2007, fn. 37) on the difference. On extraterritorial jurisdiction see: Milanovic 2011; Shany 2013. [^]
  10. Even the International Refugee Organization differentiated them via agreements with zones of occupied Germany. [^]
  11. Wellman 2011, p. 102 fn. 10. [^]
  12. 1951 Convention on the Status of Refugees Article 1A (2). [^]
  13. Defenses of the persecution criterion: Bender 2019; Cherem 2016; Lister 2013; Price 2009. [^]
  14. Chetail 2014 or League of Nations refugee definitions. [^]
  15. Miller 2016, p. 190 fn.10. [^]
  16. Walzer 1983, p. 51 (“we might be overwhelmed”). [^]
  17. Singer and Singer 1988. My insertions. [^]
  18. Hathaway and Foster 2014, p. 17. [^]
  19. ibid, p. 21. [^]
  20. ibid, p. 22 fn. 34. [^]
  21. Cited in Hathaway 2021, p. 1132. [^]
  22. Boom (2018) claims, technically, there is no right to durable solutions. I understand but disagree: Infra fn. 31. [^]
  23. Voluntary reestablishment differs from often-less-than “voluntary” repatriation. [^]
  24. Jacobson, 2001. This differs from self-settlement. [^]
  25. Hathaway and Foster 2014, p. 21. [^]
  26. Ibid., p. 22. [^]
  27. See Hathaway (2021, pp. 176–178), esp. clarification in fn. 21. There is no formal scale or chart (like below), but drafters intentionally used different wording in each article. This has long been interpreted as “attachments”: Garvey 1985. See Hathaway (2021) for painstaking research on the drafting history and interpretation of each level. Goodwin-Gill, McAdam, and Dunlop (2021, p. 595) divvy-up the attachments slightly differently: simple presence, lawful presence, and lawful residence. Within the first category they distinguish between rights applying to refugees “by virtue of their status alone” and those “predicated on…[territorial] presence.” They add “habitual residence” is required “for some purposes” (oddly, this was not in the first edition). We again have five levels—presented with a focus on three. The approach seems inspired by some statements of the French delegate whilst downplaying those of others. Those adopting the Goodwin-Gill and McAdam approach place less emphasis on the attachments. [^]
  28. Hathaway and Foster 2014, p. 26. [^]
  29. Securing rights on par with aliens is protectionist. Most-favored foreigners’ rights may partly have served original ECSC interests. [^]
  30. Hathaway and Foster 2014, p. 25 fn. 51. [^]
  31. Ibid., p. 36 fn. 108; Hathaway 2021, p. 208. [^]
  32. Hathaway and Foster 2014:, p. 26; Hathaway 2021, p. 180. [^]
  33. The closest analog: derogable rights or treaties allowing limits on some rights’ enjoyment in rare cases. The “official” position is human rights are indivisible and interdependent. I thank a reviewer for this reminder. [^]
  34. Cited in Hathaway 2021, p. 177 fn. 22. [^]
  35. Ibid. [^]
  36. Art. 1 C (5). [^]
  37. Most did not restrict under Art. 1(B) to “Europe before 1 January 1951,” but used other strategies to similar effect (Abuya, Krause, and Mayblin 2021). [^]
  38. Martin 1988; Melander 1978. Eighties scholarship revisits assumptions so engrained new vocabulary was needed. [^]
  39. Martin 1988, pp. 28–9. Melander 1978. Gibney 2004, p. 9. [^]
  40. Melander 1978, p. 3 (my insertions). [^]
  41. Thomas 2023. Raustiala 2009. [^]
  42. In 2004 UNHCR Executive Committee estimated the average protracted refugee situation lasted 17 years. While not every refugee is in a camp for that period, some are (e.g. 1990s Lhotshampa Bhutanese). Some with UNHCR cases live precariously in non-signatory cities: Infra fn. 122. In both camps and cities such limbos are objectionable for many reasons, including duration/indefiniteness. At conferences I’ve heard debate on the statistic itself (?!)—as if a slightly lower average changes the underlying dynamic. [^]
  43. Supra fn. 10 or Art. 40—the “colonial clause.” [^]
  44. Gibney 2004, p. 10. Ironically, I agree states must provide arrivals “with asylum or arrang[e] for another safe country to do so” (p. 241). I just re-define “arrival” and stress the duty’s disjunctive-ness. [^]
  45. Ibid., fn.10. [^]
  46. Ibid., pp. 240–241. [^]
  47. Beaton 2020b, p. 162. [^]
  48. Lister 2013. [^]
  49. Cherem 2016, fn. 68. [^]
  50. Oberman 2020, p. 4; Oberman 2025. [^]
  51. Beaton 2020b, p. 171. [^]
  52. Wellman 2011, p. 121. [^]
  53. Beaton 2020b, p. 167. She acknowledges the last two presuppose exit. [^]
  54. Beaton (2020b, p. 163) acknowledges the difference. Greenhill (2010, ch. 5) chronicles a past non-state scheme of ‘facilitated exited’ in the DPRK of mixed results [^]
  55. Risse, Ropp, and Sikkink 1999. [^]
  56. Risse, Ropp, and Sikkink 2013. [^]
  57. Orchard 2010. [^]
  58. Cohen 2006, p. 491. [^]
  59. Shacknove. 1985, 281–284. [^]
  60. Lister 2013, 656. Supra fn. 13. [^]
  61. A reviewer notes this case is rare. Indeed. But it shows something theoretically interesting. Moreover, drafters thought about such refugees sur place (Hathaway and Foster 2014, p. 75). [^]
  62. At least in Hohfeldian terms. Hohfeldian rights don’t mirror moral rights but are relevant to legal normativity. [^]
  63. Sinel 2017, p. 67. [^]
  64. Or an ad rem claim. [^]
  65. Sinel 2017, p. 60. [^]
  66. Ibid., p. 58. [^]
  67. Ibid., p. 64. [^]
  68. Ibid., p. 33. [^]
  69. Ibid., p. 50. [^]
  70. Ibid., p. 63. [^]
  71. Bazargan 2014. [^]
  72. Or “citizenship-like membership”: stateless persons can become refugees. [^]
  73. Shachar and Hirschl 2007. [^]
  74. Proposals to seize origin state assets for resettlement sometimes note improper/unequal use of taxes. [^]
  75. Proportionality is key. Some of his actions seem disproportionate. Thanks to Andy Mozina here. [^]
  76. Sinel 2017, 63. [^]
  77. Ibid., p. 51, fn. 59. [^]
  78. I focus on recaption and abatement—practically, ejection and self-defense against persecutors are collective. [^]
  79. Price 2006, pp. 424–425. [^]
  80. This differentiates my view from Hidalgo’s focus on self-defense (?!) between migrants and borders generally. [^]
  81. As incomplete privilege is a property law doctrine, I just draw a parallel. I only discuss the analogous private self-preservation-vs.-property cases. Public incomplete privilege only applies in emergencies (e.g. wars, pandemics). The language of incomplete privilege seems more accurate to the case than Feinberg’s general right of necessity. [^]
  82. Feinberg 1978. [^]
  83. This “roughness” temporarily avoids the source of risk. [^]
  84. Bohlen 1926, p. 313. [^]
  85. Botterell 2008, p. 273. [^]
  86. Oberdiek 2008, p. 134. [^]
  87. Botterell, 2009. [^]
  88. Westen 1985, p. 389. [^]
  89. Ripstein 2016, p. 149. [^]
  90. Botterell 2008, p. 274. [^]
  91. Brownlie 1973, pp. 452–53, 506; Goodwin-Gill and Sazak 2015; Boom 2018, p. 527. [^]
  92. Hathaway 2021, p. 485. [^]
  93. Cited in Hathaway (2021, p. 484). History and case law reveal “coming directly” does not mean temporal or geographic contiguity. [^]
  94. Hathaway 2021, p. 464 ff., esp. fn. 828. This section chronicles how, contrary to the Convention, some signatories use legal strategies to apply normal immigration or criminal laws to asylum seekers. [^]
  95. Ibid., p. 491. [^]
  96. Ibid., p. 496. [^]
  97. Botterell 2008, p. 274. [^]
  98. Belarus’ signatory status is irrelevant if she isn’t safe. [^]
  99. Beyond Art. 31 Poland has RSD and must assess her claim. Recognition triggers duties to secure/protect rights—often leading to membership. [^]
  100. Supra. fn. 78. [^]
  101. The bare duty (restraint, respect) applies to non-signatories (e.g. safe-passage or allowing self-settlement). Signatories must assess claims and facilitate (re)new(ed) membership to achieve respect. [^]
  102. I noted self-help and incomplete privilege must be connected. This matters beyond individual refugees. In the state system, how someone is put in a situation of necessity (from which they act) impacts which state has what duties and where compensation for their discharge should ideally be sought. In theory, proposals to seize refugee producing states’ assets for resettlement costs, despite practical issues, are better than a “collective fund” among liberal states to burden share via reallocated money/spots. The latter non-ideally separates responsibility and liability, so it only smooths unfairness or dampens perverse incentives. The former can also address the normative asymmetry used by illiberal states near liberal ones (which also threatens the refugee regime). See: Greenhill 2010; 2016; Russia-Finland or 2021–22 Belarus-Poland/Lithuania/Latvia cases. So, location has further normative import (directing compensatory duties between states). I thank a reviewer for noting this section could become a footnote. [^]
  103. Supra fn. 83. [^]
  104. Advocates of radically open borders or philosophical anarchism will disagree. By making the comparison I’m not claiming states hold property rights over territory (below). [^]
  105. Unlike the hiker they flee illegitimately imposed risk attributable to a state. This underscores how the nature of a rights violation can impact what remedies are appropriate, who should ideally provide them/bear costs, and how the international community should ideally respond. Supra. fn. 102; Dietrich and Wündisch 2015, p. 88. [^]
  106. Bosniak 2007, p. 390. [^]
  107. Ibid., p. 391. [^]
  108. Part of what makes recent US immigration enforcement troubling is that it is a snap-shift from longstanding ethical territoriality practices to a status-based view with truncated procedural rights. See Thomas (2023) for background. [^]
  109. Bosniak 2007, p. 404 fn. 37. [^]
  110. Ibid., p. 393 (characterizing how liberal democracies operationalize ethical territoriality). [^]
  111. Ibid., p. 391. [^]
  112. Carens 2010; Blake 2013; Walzer 1983; Fiss 1999; Neuman 1996; Ochoa Espejo 2020; Bosniak 2007; Raustiala 2009; Gibney 2004. [^]
  113. Bosniak (2007, pp. 403–404 at fn. 41) notes the view denies “quasi-essentialist,” historical explanations of the link between people and territory. Such accounts presuppose membership. [^]
  114. Bosniak 2007 surveys these answers. Ochoa Espejo (2020, pp. 223 ff.) expands the survey. The jurisdictional view is the least contingent and strongest. Blake (2013) is the fullest account of it. [^]
  115. Blake 2013, p. 112 (my emphasis). [^]
  116. Blake 2014b, p. 18. [^]
  117. Blake 2013, p. 112. Presumably, this very strong swimmer goes from Saint Maarten to Saint Croix, or from Saint Pierre and Miquelon via Newfoundland’s coast to Maine. [^]
  118. Blake 2014b, p. 18. [^]
  119. Blake 2013, p. 113. [^]
  120. Ibid., p. 114. Blake 2014a, p. 533. Blake speaks of country-wide protection. Yet, RSD must be individual. States that generally respect rights can persecute: e.g. South Korean conscientious objectors until reforms starting in 2018. [^]
  121. Ibid. p. 118. If they are protected, we can refuse to be obliged. We can deport to Canada or France, not Somalia. [^]
  122. Blake (2013) obscures this by presenting his French case as if it were contiguous. [^]
  123. In 2015 Jordan deported/refouled Sudanese protesting perceived faster referral of Syrians. Legitimate debates arise: What explained the different speed of recommendations to states? Should UNHCR be RSD-ing to this extent? See Kagan (2006) and archived posts of his old RSD-watch blog. [^]
  124. See Hirsi case. Italy was in violation, but screening and transfer to a partner state may have been permissible. For similar under CAT: JHA v. Spain or Sonko v. Spain. Similarly, in 2014 Australia put interdicted migrants in “unsinkable” lifeboats sent to (non-signatory) Indonesia. [^]
  125. See 1998 Bashir case resolved in 2018. For critique: Goodwin-Gill, McAdam and Dunlop 2021, p. 600. [^]
  126. This goes beyond legal normativity (e.g. ‘jurisdictional attachment rights apply’). I want to reconstruct why there is a difference between jurisdictional and territorial attachment. I offer the briefest sketch in the next section. See infra. fn. 140 for a possible fuller account. [^]
  127. Coleman 1992, p. 301. [^]
  128. Coleman doesn’t use this terminology, but it seems what he has in mind. [^]
  129. Coleman 1992, p. 302. [^]
  130. Property rights don’t always lose to personal rights: see Wellman (1995, p. 217) on the shepherd case. We cannot just “weigh” the interests underlying rights to determine if the right holder can use her right. This reduces rights to interests and erases the normative control rights afford holders. [^]
  131. Weck 2016, p. 149. [^]
  132. When assessing if something is an abuse of right, “owner’s reasons are what we scrutinize, not the ‘all-things-considered’ deserts of the person harmed” or put at risk. Katz 2013, p. 1444 fn.3. [^]
  133. Ripstein 2016, p. 55. [^]
  134. Ripstein 2017, p. 250; Ripstein 2011, p. 173. [^]
  135. Ibid., p. 248. [^]
  136. Pace Wellman 2011, p. 55 fn.1: sovereigns must minimally protect members abroad (e.g. consular aid). [^]
  137. Ripstein 2017, p. 257. [^]
  138. Ibid., p. 258. [^]
  139. Ibid., p. 265. [^]
  140. The analogic mirroring between absent versus at-home owner and jurisdictional versus territorial attachment is fraught. It could be misused (if ethical territoriality is rejected or interpreted instrumentally) to defend expedited removal for those apprehended a few days/miles post-entry by claiming they aren’t relevantly “in” (see views critiqued in Thomas 2023). My view doesn’t allow for this. How then to think of the mirroring? Blake 2011 speaks of “vertical” (government-subject) and “horizontal” (subject-subject) coercion. In later work on exclusion this is marked by an “institutions and persons” phrase. So: asylum seekers in territory impose obligations on both institutions and citizens, but those encountered extraterritorially perhaps impose only “vertical” obligations met by thinner duties to respect rights before transfer elsewhere (below). [^]
  141. Beaton 2020a, p. 9. [^]
  142. State legitimacy theorists of refugees highlight the link between state legitimacy and the legitimacy of the world order of states. Owen 2020; Carens 1991; Buxton and Draper 2022. I agree this is important for different reasons: Supra fn. 102. I don’t think this link helps clearly divvy up protection duties. It doesn’t yield specific second- or third-order duties to protect a “fair share” of refugees as members or take in “surplus.” This can be arrived at via appeals to fairness between (equally?) liberal (and some non-liberal?) states. It is unclear what work the link is doing that fairness is not. Mason 2026 for similar. I stick with the direction rather than allocation of duties. [^]
  143. Hathaway 2021, p. 185. [^]
  144. Milanovic (2011, pp. 127, 173) calls these the “personal” and “spatial” models. See Milanovic (2017) for a “primer” or Schmalz (2025). [^]
  145. Hathaway (2021, pp. 190 ff.) notes three requirements for this to apply. [^]
  146. In the former, suspected Cambodian smugglers were detained onboard for weeks pre-trial. In the latter, Somalis and Eritreans were sent to Libya without assessing protection needs. [^]
  147. In the former, Iraqis alleged inadequate investigations into killings of family. In the latter, the UK detained an Iraqi-British dual citizen for years. [^]
  148. See MSS v. Belgium and Greece. [^]
  149. Hathaway 2021, p. 192. Milanovic (2017, p. 58) notes this “partly overruled” the Bankovic holding. [^]
  150. See Schmalz (2025, p. 81) for a factual summary of MN v Belgium differentiating mere administrative control. [^]
  151. Milanovic 2017, p. 58; Milanovic 2011, p. 211. He thinks ‘public powers’ cases are forestalling collapse. [^]
  152. Milanovic 2017, p. 59. [^]
  153. Milanovic 2011, p. 211. [^]
  154. Ibid., p. 212. [^]
  155. Ibid., p. 46. [^]
  156. Ibid., p. 216 and fn. 283. [^]
  157. Ibid., p. 216. [^]
  158. Hathaway 2021, p. 193 (on rejection of the view that only one state can have jurisdiction and responsibility). [^]
  159. Kagan 2025. [^]
  160. May 2011. [^]
  161. North and Chia (2013) propose an international judicial commission for refugees (see esp. p. 240 for current gaps). [^]
  162. Besson 2012 gives a complex model. She critiques Milanovic for blurring attribution and responsibility, but the recent NL v Russia case seems to vindicate Milanovic here. [^]
  163. Hathaway 2021, p. 313 (critiquing such schemes). [^]
  164. Giuffré 2016, p. 266 (critiquing the schemes, which seem practically infeasible). [^]

ACKNOWLEDGMENTS

Several people have contributed to this article over the past 10 years. In 2015 Allen Buchanan, Gopal Srinivasan, and Ewan Kingston commented on a draft while I was on a Mellon Foundation Humanities Writ Large fellowship at Duke. Seth Mayer and Lee Goldsmith commented in 2018, Andy Mozina did so in 2026. I presented small sections at conferences in Tromsø, Norway and Adrian, Michigan. I got helpful questions from Matthew Lister, Eilidh Beaton, Justin Donhauser, and Peter Railton. My largest debt is to the University of Michigan School of Law, where I was a Grotius Research Fellow from 2018-2019. I am extremely grateful to James Hathaway for being my faculty sponsor, and letting me sit-in on refugee and asylum law classes. Similarly, I am thankful to Barbara McQuade and Monica Hakimi. Their national security and international law classes shaped my thinking here. Steven Ratner allowed me to present in his class, and Nico Cornell commented in a workshop on a partial draft. Their questions led me in new directions. Finally, I am very grateful to Bob Goodin and three anonymous reviewers for Political Philosophy whose comments helped improve this article.

COMPETING INTERESTS

The author declares that he has no competing interests.

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Table of Contents

    Table 1: Levels of Attachment, and Rights that Attach.

    LEVEL OF ATTACHMENT RIGHTS THAT ATTACH1
    Jurisdiction non-discrimination [among refugees] (Art. 3), property (Art. 13†), access to courts (Art. 16 (1)), rationing (Art. 20), public education (Art. 22, (2)†), fiscal charges [tax equity] (Art. 29), nonrefoulement (Art. 33), [facilitation of] naturalization (Art. 34)
    Territory (“in”) religious freedom (Art. 4), administrative assistance (Art. 25), identity papers (Art. 27), non-penalization for illegal entry (Art. 31),
    Lawful presence (“lawfully in”) self-employment (Art. 18†), freedom of movement (Art. 26†), protection against expulsion [to third state] (Art. 32)
    Lawful stay (“lawfully staying”) freedom of association (Art. 15‡), wage-earning employment (Art. 17‡), [right to continue] liberal professions (Art. 19†), right to housing (Art. 21†), public welfare (Art. 22), labor law and social security (Art. 24), travel documents (Art. 28).
    Durable stay exemption from legislative reciprocity (Art. 7(2)), artistic and industrial property (Art. 14), legal aid and exemption from judgment bonds (Art. 16 (2)), exemption from labor market restrictions (Art. 17 (2))

    • 1 † on par with aliens; ‡ on par with most favored foreigners. Table based on Sharpe (2014). For a few rights there is some slight debate as to the level.