Hospitalidade e hostilidade: uma análise da convenção relativa ao Estatuto do Refugiado à luz do Direito Cosmopolita kantiano

Abstract

This dissertation intends to investigate the binomial hospitality-hostility in International Refugee Law. The thesis considered here is that the ideal of hospitality contained in the formulas of the Convention Relating to the Status of Refugees of 1951 is opposed to the hostility of State practice. The working hypothesis is that the Convention brings hospitality and the universality of human rights as premises, but the States cling to their sovereignty to introduce the element of hostility in the treatment of the refugee, mitigating not only the normative force of this document, but also its openings to hospitality and cosmopolitanism. The theoretical substrate of this analysis will be the Kantian philosophy and its concepts of hospitality and cosmopolitanism, as exposed in the booklet To Perpetual Peace. The analysis begins with the philosophy and concept of peace in Kant and then moves to Cosmopolitan Law and International Refugee Law. The first chapter seeks to establish the basis on which the other chapters will be built, discussing Kant's political philosophy and his project for lasting peace. The second chapter delves into Cosmopolitan Law in greater detail, addressing the concept, scope and role of this branch of Law in Kant's legal and moral philosophy. This approach seeks to investigate the possibility of applying Cosmopolitan Law to the problems of refugees nowadays. The works of authors who defend the applicability of Cosmopolitan Law to refugees, such as Pauline Kleingeld and Luigi Caranti, as well as authors with a restrictive view, such as Sharon Byrd and Joachim Hrushka, will be analyzed and compared. Finally, a summary on the subject will be presented. The third chapter seeks to compare Kantian Cosmopolitan Law with some provisions of the International Convention on the Status of Refugees, seeking points of intersection between Kantian thought and the law posited in the Convention. It will seek to investigate mainly the non-refoulement clause, similar to some of Kant's considerations and possible mental reserves of States in the matter, bearing in mind the concept of mental reserve outlined by Kant in Perpetual Peace. In the end, in possession of all the philosophical and legal elements collected throughout the work, the answer to the problem of this dissertation will be presented: if Kantian Cosmopolitan Law is applicable to refugees and if the 1951 Refugee Convention can be considered a cosmopolitan instrument, in the Kantian sense of the term.