Debating Right to Asylum

JYVÄSKYLÄ STUDIES IN EDUCATION, PSYCHOLOGY AND SOCIAL RESEARCH 490 Hanna-Mari Kivistö Debating Right to Asylum A Conceptual and Rhetorical Reading of the German post-War Deliberations JYVÄSKYLÄ STUDIES IN EDUCATION, PSYCHOLOGY AND SOCIAL RESEARCH 490 Hanna-Mari Kivistö Debating Right to Asylum A Conceptual and Rhetorical Reading of the German post-War Deliberations Esitetään Jyväskylän yliopiston yhteiskuntatieteellisen tiedekunnan suostumuksella julkisesti tarkastettavaksi Historica-rakennuksen salissa H320 joulukuun 11. päivänä 2013 kello 12. Academic dissertation to be publicly discussed, by permission of the Faculty of Social Sciences of the University of Jyväskylä, in building Historica, hall H320, on December 11, 2013 at 12 o’clock noon. UNIVERSITY OF JYVÄSKYLÄ JYVÄSKYLÄ 2013 Debating Right to Asylum A Conceptual and Rhetorical Reading of the German post-War Deliberations JYVÄSKYLÄ STUDIES IN EDUCATION, PSYCHOLOGY AND SOCIAL RESEARCH 490 Hanna-Mari Kivistö Debating Right to Asylum A Conceptual and Rhetorical Reading of the German post-War Deliberations UNIVERSITY OF JYVÄSKYLÄ JYVÄSKYLÄ 2013 Editors Jussi Kotkavirta Department of Social Sciences and Philosophy, University of Jyväskylä Pekka Olsbo, Sini Tuikka Publishing Unit, University Library of Jyväskylä URN:ISBN:978-951-39-5556-4 ISBN 978-951-39-5556-4 (PDF) ISBN 978-951-39-5555-7 (nid.) ISSN 0075-4625 Copyright © 2013, by University of Jyväskylä Jyväskylä University Printing House, Jyväskylä 2013 ABSTRACT Kivistö, Hanna-Mari Debating Right to Asylum - A Conceptual and Rhetorical Reading of the German post-War Deliberations Jyväskylä: University of Jyväskylä, 2013, 182 p. (Jyväskylä Studies in Education, Psychology and Social Research ISSN 0075-4625; 490) ISBN 978-951-39-5555-7 (nid.) ISBN 978-951-39-5556-4 (PDF) Diss. Finnish summary The aim of the doctoral research is to examine debates related to the right to asylum in the post-World War II framework, with the purpose to offer a conceptual and rhetorical reading of the notion and to examine conceptual disputes and shifts related to it. The research analyses asylum debates in three different parliamentary settings and politico-historical contexts with a particular focus on the early political life of West Germany. The 1949 Grundgesetz (‘Basic Law’) of the Federal Republic of Germany was unique in including a constitutional pro- vision conceiving of asylum as an individual right of politically persecuted per- sons: “Politisch Verfolgte genießen Asylrecht" [Art. 16(2) 2 GG]. This clause, formu- lated in the West German Parliamentary Council (Parlamentarischer Rat), estab- lished a right that was without historical precedent, an innovation from the point of view of German legal history and something that remained singular in international context. The study looks at the creation of this unique right and its specific political history by examining how such a right came about and by in- vestigating its conceptual, political and rhetorical origins. With main focus on the creation of the West German constitutional right to asylum, the study brings a further angle to the post-war asylum deliberations by looking at the creation of the asylum article of the Universal Declaration of Human Rights (1948) in the contemporary diplomatic negotiations of the Unit- ed Nations. The study discusses the making of these two conceptualisations of asylum—one entering it into the constitution as a right of the individual and the other declaring it as a right of the state. A further perspective is added with an analysis of the asylum debates in the German Bundestag in 1993 when the constitutional right to asylum created by politicians in the Parliamentary Council is subject to alteration. The study builds a narrative of how the right to asylum becomes a matter of political struggles and debate in different parliamentary fora in the post-World War II context and and how it is legally recognised and (re)conceptualised in these different political settings. Keywords: asylum, human rights, Federal Republic of Germany, Parliamentary Council, United Nations, debate, rhetoric, conceptual history Author’s address Hanna-Mari Kivistö Department of Social Sciences and Philosophy P.O. Box 35, FI-40014 University of Jyväskylä [email protected] Supervisors Kari Palonen Department of Social Sciences and Philosophy University of Jyväskylä Reviewers Sia Spiliopoulou Åkermark Åland Islands Peace Institute Privatdozent Claudia Wiesner University of Marburg & University of Jyväskylä Opponent Privatdozent Dirk Jörke University of Greifswald ACKNOWLEDGEMENTS Once upon a time, it was a distant, even a little scary, dream of mine to write a dissertation. Now, while finalising the project and entering the final stages of its adventurous journey, there are several people whom I had the privilege of meeting along the way—and to whom I am indebted—and would like to offer my warmest thanks. First, I wish to express my gratitude to my supervisor, Kari Palonen, for his support since the early phase of working on my Master’s thesis, sometime in 2005. I am truly thankful for the opportunities provided during this time, for the intellectual support combined with the freedom to explore, for offering me the space to try to find my way, and also for understanding when, at times, my path was perhaps not so easy to understand. The writing of this dissertation was financed by his Academy of Finland Professor’s project “The Politics of Dissensus. Parliamentarism, Rhetoric and Conceptual History” (2008-2012). I had also the pleasure of being a member of the “Finnish Centre of Excellence in Political Thought and Conceptual Change” during the years 2008-2011. The project, as well as the Centre, provided an inspiring research environment and the ability to travel and participate in various conferences which was a very fortunate situation to be in as a PhD student. In addition, the Department of Social Sciences and Philosophy provided finance for this project. I want to thank the pre-examiners of this dissertation, Claudia Wiesner and Sia Spiliopoulou Åkermark, for comments on the manuscript which proved invaluable to my work. A big Danke schön belongs to Klaus Sondermann who read the manuscript and made corrections to my German (the ownership of any remaining mistakes belongs solely to me!) and provided me with words of support in the final stages of the process. I also want to thank Coady Buckley for revising my English. Regarding the collection of primary research material and secondary liter- ature, I wish to express my thanks to the kind staff of both the Bundesarchiv in Koblenz and the Staatsbibliothek zu Berlin. While spending time away from Jyväskylä in my beloved Berlin as a part of the research process, the Department of Social Sciences and Philosophy has always remained a wonderfully welcoming academic home. I want to express my thanks to the staff in the Department, in Political Science, and I especially want to thank all the members of our PhD team which has been an important locus for sharing interests, learning, testing ideas and getting feedback in con- structive atmosphere. It’s a research community that I’ve been happy to be part of. Among my Jyväskylä colleagues, I would like to mention Anna Björk and thank her for the discussions on our research topics, as well as those discussions which went beyond them. Throughout the process, including its highs and lows, Taru Haapala and Anitta Kananen have been my two rocks and partners in crime, suppliers of encouragement, great advice and the funniest of jokes. To them, as well as other friends in various places, I want to offer my thanks for reminding me of the things outside the writing of a dissertation, for bringing perspective and laughter, and for gently trying to drag me out in those moments when I had become too lost in the writing. Finally, I want to express my warm thanks to my family. To my mum and Markku, my dad and my brothers, for providing constant support and the best possible place to start from. A special thanks goes to mum for her wise, kind and encouraging ways. I therefore wish to dedicate this book to her, as well as to my grandparents—mummi and ukki—as my thanks for their invaluable support always. Imatra, 23 November 2013 Hanna-Mari Kivistö LIST OF ABBREVIATIONS AfG Ausschuß für Grundsatzfragen BVerfG Bundesverfassungsgericht BVP Bayerische Volkspartei CDU Christlich Demokratische Union CSU Christlich-Soziale Union CSVD Christlich-Soziale Volksdienst DDP Deutsche Demokratische Partei DNVP Deutschnationale Volkspartei DP Deutsche Partei DVP Deutsche Volkspartei EC European Community EU European Union FDP Freie Demokratische Partei GG Grundgesetz HA Hauptausschuß IRO International Refugee Organization KPD Kommunistische Partei Deutschlands LPD Liberal-Demokratische Partei Deutschlands NSDAP Nationalsozialistische Deutsche Arbeiterpartei PDS Partei des Demokratischen Sozialismus PR Parlamentarischer Rat SPD Sozialdemokratische Partei Deutschlands UN United Nations UNHCR United Nations High Commissioner on Refugees WRV Weimarer Verfassung, Weimarer Reichsverfassung CONTENTS ABSTRACT ACKNOWLEDGEMENTS LIST OF ABBREVIATIONS CONTENTS 1 INTRODUCTION .............................................................................................. 11 1.1 The politics of asylum .............................................................................. 11 1.2 The politics of rights and the paradoxes of rights language .............. 13 1.3 Asylum-seekers, refugees, political exiles, displaced

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