Distant claimants: an inquiry on how law conditions access to political membership (completed)

Dana Schmalz


The research project examines how the role of physical presence for politics translates into legal problems, and how law conditions access to political membership in constellations of physical distance. It proceeds on the one hand from an analysis of asylum cases, in which the legality of deterrence at the border was in question. These constellations underline how physical distance plays a role for the arising of claims under human rights jurisdictions, and for the practical conditions of making those claims heard legally and politically. On the other hand, the project situates these case analyses within considerations about the changing assumptions about co-presence in legal and political theory. Territory and co-presence constitute the very bases of political membership in a modern conception: Democratic citizenship is understood with reference to the territorially defined state, and constitutes vice versa the basis of legitimacy for rules regulating access to the community. Co-presence is thereby the, often implicit, justification for more far-reaching mutual obligations among citizens, and the reference point for conceptions of the political beyond formal participation rights. Yet conditions of co-presence themselves are shaped by legal rules and as such necessary subject of political contestation. Drawing on examples from the law of forced migration, the project raises questions as to how democratic theory can account for distant claimants, and what dilemma arises for an open conception of democratic citizenship. It further explores what provisions we find in refugee law reflecting these difficulties, and which channels legal institutions might offer to address the dilemma.

 

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