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The Democratic Legitimacy of Refugee Law

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Having left their home country, 18 million refugees and other protection seekers cannot exert their rights to democratic participation. As a consequence, they are deprived of all influence on a legal instrument of existential importance for them, namely the grant of asylum. Can the exclusion of refugees from the framing of aliens legislation be justified?

The analysis carried out in this text proceeds in three steps: First, an empirical exploration of international law reveals a tendency towards the emergence of universal implementation of the ideal of democracy. However, this tendency is clearly limited by the concept of citizenship as the crucial link between actor and political structure. The following inquiry into the conceptual roots of democracy and sovereignty identifies the theoretical foundation for the tendency towards universal implementation. Simultaneously, it emerges that insistence on a particularistic sovereignty concept solely professing national interest is logically incompatible with the rationale behind democratic statehood: to realise individual autonomy. Shifting perspective in the last approach, the possibility of a nexus between exclusionary norm creation and disrespect for refugee and immigration law is established by means of contemporary legitimacy theory.

Affiliations: 1: Researcher in International Law, Faculty of Law, University of Lund, Sweden


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