Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.

12019

The Ethics of Immigration: Self-Determination and the Right to Exclude

Sarah Fine*
Kings College London

Abstract

Many of us take it for granted that states have a right to control the entry and settlement of noncitizens in their territories, and hardly pause to consider or evaluate the moral justications for immigration controls. For a long time, very few political philosophers showed a great deal of interest in the subject. However, it is now attracting much more attention in the discipline. This article aims to show that we most certainly should not take it for granted that states enjoy a moral right to exclude would-be immigrants. It is neither obvious nor uncontroversial. And if we cannot nd adequate justications for the existence of such a right, then we need to re-evaluate the very backbone of current approaches to immigration policy. The paper begins with an overview of the existing academic debate about the extent of the right to freedom of movement. Next it introduces three arguments in support of the states right to exclude would-be immigrants which draw on claims about the collective right to self-determination. Finally it outlines three important challenges faced by these arguments in support of the states right to exclude.

1. Introduction Immigration is a topic guaranteed to provoke impassioned popular debate. Almost every aspect of any immigration policy proves politically contentious. Yet, despite all the disagreement, one fundamental immigration issue generally is not deemed controversial. Many of us just take it for granted that sovereign states should be free to control the entry and settlement of non-citizens in their territories, as well as the terms and conditions for acquiring citizenship.1 Indeed, the right of states to control and restrict immigration is widely considered to be a central, legitimate, undeniable aspect of sovereignty (Bosniak [a] 737). We have become so accustomed to an international system in which states claim the authority to control the admission of non-citizens into their territories and the terms of acquiring citizenship rights that many of us hardly pause to consider or evaluate the moral justications for immigration controls. For a long time, very few political philosophers showed a great deal of interest in the subject; perhaps it did not attract much attention because it just seemed obvious that states ought to enjoy a right to control and restrict immigration (Blake [a] 226; for the most notable exception, see Carens [a]). When we do pause to consider the possible moral justications for the right to exclude would-be immigrants, however, we cannot fail to notice that borders have guards and the guards have guns (Carens [a] 251). The states authority over immigration is often coercively enforced, through the familiar apparatus of border control, and the harsh measures that await would-be immigrants if they fail to satisfy the legal requirements for entry (Miller [g]). States routinely try to keep out all sorts of would-be entrants, for all sorts of reasons, with impunity. They might exclude the needy, the poor, the frail, those
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

The Ethics of Immigration

255

seeking work and other opportunities, those seeking an education, those wanting to be with loved ones. They may attempt to detain and deport people who are in the country without permission. Many people who are desperate to enter the state are turned away at the borders or are refused the requisite visas and never make it to the borders. People risk their lives in order to immigrate when permission is not granted. Some people die in the process of being sent back, and many people die in the process of trying to cross borders. People who are in the country without authorisation are vulnerable to ill-treatment (Benton). That is the reality. The authority states claim over the admission and settlement of non-citizens stands in urgent need of moral justication. The ethics of immigration is a broad and expanding academic topic, encompassing various, complex philosophical issues regarding the movement and settlement of people across state borders. The subject includes, but is not limited to, questions related to forced migration, particularly the nature and extent of duties towards refugees, as well as the very denition of a refugee (see Gibney, Dummett, Benhabib, Shacknove, Kukathas, Owen [b], Nine [b]); what states owe to those immigrants they admit, especially in terms of access to citizenship and its accompanying rights, as well as the ethics of guest-worker programmes (Dummett, Miller [d], Pevnick, Baubo ck [a], Calder et al., Ypi [b], Carens [e]); what, if anything, states owe to those would-be immigrants they refuse to admit (Wellman [a], Miller [b]); and what, if anything, they owe to those who are present without authorisation (Bosniak [b], Carens [d], Shachar); whether states may exclude would-be immigrants according to any selection criteria (Carens [b], Wellman [a], Blake [b], Miller [b], Fine [d], and see also Joppke); whether states have special responsibilities to particular would-be immigrants, such as those from their former colonies, or to family members of their citizens and residents, or to long-term undocumented migrants, and or to prospective immigrants from poor countries (Walzer chapter 2, Honohan, Carens [e]); what, if anything, states may demand of immigrants once they have been admitted (Miller, Baubo ck); and questions about emigration, including the so-called problem of brain drain (see for example Oberman [b], Pogge, Kapur and McHale, Stilz [b]). All of these are important questions, which are addressed to various degrees in the burgeoning literature on migration in moral and political philosophy (for a comprehensive treatment, see Carens [e]; for edited collections, see Fine and Ypi, Barry and Goodin, Calder et al., for overviews, see Abizadeh [c], Bader, Blake [a], Seglow, Kukathas [a], Wellman [b]). In this article, I focus primarily on the fundamental issue of the states supposed right to exclude would-be immigrants. This right to exclude, as it is ordinarily understood, usually incorporates three conceptually distinct rights: a right to exclude outsiders from its territory (from crossing into geographical borders), a right to exclude them from settling within the territory, and a right to exclude them from membership of the political community (from acquiring citizenship status) (see Fine [a] 3423). Exploring the grounds for the states supposed right to exclude is a vital task, because if we cannot nd adequate justications for this right then we need to re-evaluate the very backbone of current approaches to immigration policy. And what I want to show in the remainder of this piece is that we most certainly should not take it for granted that states enjoy a moral right to exclude. It is neither obvious nor uncontroversial. In Section II, I provide an overview of the existing academic debate about the extent of the right to freedom of movement. In Section III, I introduce three arguments in support of the states right to exclude would-be immigrants which are all based, in different ways, on arguments about the collective right to self-determination. In Section IV, I outline three important challenges faced by arguments in support of the right to exclude, and I show why these challenges are signicant.
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

256 The Ethics of Immigration

2. Freedom of Movement Perhaps it seems intuitively obvious and uncontroversial that states have a right to exclude would-be immigrants because that is how states operate right now. The rst important point to note, then, is that things have not always been this way. At various points in modern history, many states actually paid little attention at least to the movement and entry of non-citizens. On the other hand, states claimed the authority to control the movement of their own citizens and subjects within state territory, and to restrict their freedom to leave and or re-enter the state (for further discussion, see Torpey esp. chapters 1 and 3, and Caplan and Torpey). These practices were commonplace, and the fact that states claimed those rights also might have seemed obvious and morally uncontroversial in the past (see Whelan). However, if you are a citizen of a democratic state today you probably take it for granted that you enjoy the freedom to move around and settle in the place of your choosing within your own country, as well as the freedom to leave any state, and to return to your own state. No doubt you would be shocked and appalled if your government decided to apply permanent internal migration restrictions, or tried to stop you leaving to take up a job in another country, or refused to let you return. Freedom of movement within ones country, the freedom to leave any state, and the freedom to return to ones own state are now considered fundamental human rights and are recognised as such in The Universal Declaration of Human Rights (1948, Article 13).2 In short, the notion that states have a right to exclude would-be immigrants, but no right to restrict domestic (internal) freedom of movement or freedom of exit is a latetwentieth century development. The mere fact that states claim the right to exclude would-be immigrants now is no reason to assume that the existence of such a right is obvious or that the right itself morally uncontroversial. Indeed, one of the most important tasks for political philosophers is to subject even the most seemingly obvious and uncontroversial aspects of our political landscape to critical assessment, and to examine whether they are in coherence with our supposed fundamental moral commitments (see Wellman and Cole, Risse, Carens [e]). One way in which to challenge the existence of a right to exclude is to argue that it is at odds with our supposed fundamental moral commitments. In that vein, some philosophers have argued that, once we recognise a human right to exit any state, we are committed to recognising something like a human right to enter and settle in other states. Without a right to international freedom of movement which includes a right to immigrate, Phillip Cole argues, the right to exit is virtually meaningless and worthless, because in order for people to enjoy a right to exit they must also enjoy a right to go elsewhere. In our world of states, that means a right to go to another state, a right to immigrate: there can be no [right to emigrate] without a corresponding right to enter another state (Cole 56). Moreover, some philosophers maintain that if we recognise a human right to freedom of movement within the state, we are also well on the road to recognising a human right to international freedom of movement. They contend that the same basic interests and claims which support the case for considering freedom of movement within state borders to be a human right also support the case for considering freedom of movement across state borders to be a human right (see especially Carens [a] 288, and Oberman [a]). If there is a basic right to internal freedom of movement on those grounds, then there is also a basic right to international freedom of movement. There is, these philosophers argue, no morally relevant distinction between the two cases. Furthermore, some philosophers also argue that the states supposed right to exclude would-be immigrants, and thus to constrain their freedom of movement, is essentially at
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

257

odds with the fundamental liberal commitment to the moral equality of all people (Carens [a], Cole). For one thing, where people happen to be born is just another morally arbitrary fact about them (like their ethnicity or their sex), a matter of chance, something for which they are not responsible, and so it should not affect their access to opportunities or enjoyment of basic freedoms. As Cole argues, with its universalist commitment to the moral equality of humanity, liberal theory cannot coherently justify these practices of exclusion, which constitute outsiders on grounds any recognisable liberal theory would condemn as arbitrary (Cole 2). In effect, the argument is that our prevailing immigration practices are inconsistent with our self-proclaimed commitment to moral equality. If these arguments are correct, the case for the states right to exclude would not even get off the ground. It would not be the states prerogative to admit or exclude would-be immigrants in line with its own interests and preferences. As Miller claries, [s]tates would have to open their borders to all-comers unless they could show that there were specic individuals whose admission posed a threat to the human rights of others (Miller [g]). And if applying radically different standards to citizens and non-citizens in migration matters stands at odds with the liberal commitment to moral equality, then selfproclaimed liberal democratic states that do so are clearly failing to live up to their own regulative commitments. On the other hand, you might agree with Miller and Michael Blake (among others) that these arguments are not sufcient to show that there ought to be something like a right to international freedom of movement, and to defeat the case for a right to exclude. First, in brief, Miller argues that the right to exit any state does not entail a right to immigrate, understood as the right to enter any state of ones choosing; for Miller, the right to emigrate can be satised so long as there is at least one other place that one is not prevented from entering (Miller [g], also Wellman [a] 1356). Second, Miller argues it is incorrect to maintain that the same considerations which support the right to domestic freedom of movement also support the case for a right to international freedom of movement (Miller [g]). Ultimately, Blake responds that there is a morally relevant difference between domestic freedom of movement and international freedom of movement. He argues that we need to think about the relevance of being subject to the authority of the state [existing residents] as distinct from wishing to become subject to the states authority [would-be immigrants].3 If a political system is going to take itself as authorised to exercise the powers inherent in political governance, it owes some guarantees specically to those being governed. These guarantees, however, do not apply to those who are not subject to the authority of the state and [w]hen the political circumstances are relevantly different, as they are in the case of existing residents versus would-be immigrants, moral egalitarianism demandsrather than condemnspolitical differences in treatment (Blake [a] 2289). So, for Blake, it is not clear that the right to freedom of movement should be treated as something which is always an implication of moral equality, rather than a specic implication of moral equality which applies only within the context of shared liability to the state (Blake [a] 229). There is, of course, much more that these philosophers add in defence of their arguments, and their opponents offer a range of objections to each of these moves (for further discussion, see Wilcox). However, the central point is that it is not obvious that states enjoy a right to exclude, but nor is it obvious that the right to exclude is fundamentally at odds with liberal democratic ideals or that these ideals automatically commit us to recognising a right to international freedom of movement. Immigration, as Wellman and Cole point out, is theoretically signicant because of the way in which it pits the claims of the state as a whole against the individual rights of both citizens and foreigners (1).
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

258 The Ethics of Immigration

There are weighty claims and measured arguments on both sides of the debate. In order to evaluate the case for the states right to exclude would-be immigrants, we need to take a closer look at the specic arguments in favour of that right itself. 3. Self-Determination and the Right to Exclude In recent years, a number of political philosophers have put forward a variety of arguments in support of the states right to exclude. These are not arguments in support of the ways that states conduct their immigration affairs now or conducted them in the past; most of the philosophers in question are very critical of many past and current immigration rules and practices. Rather, they maintain that, in theory, and under the right kind of conditions, states may enjoy a right to exclude would-be immigrants. These arguments thus generally focus on the rights of liberal democratic states, and many of them explicitly connect the states right to exclude to the collective right of selfdetermination, that is, the right of a people (or state or nation) to set the terms of their common lives (Walzer, Miller [b], Wellman [a], Pevnick). The worry is that positions which argue in favour of more open immigration policies overlook or even deny the central importance of the right to self-determination (Pevnick 39). The self-determination arguments are potent and deserve careful consideration; after all, a commitment to the right of self-determination is one of the foundation stones of liberal political philosophy. In an oft-cited passage, Michael Walzer leads the way in drawing the apparent connection between the right to control immigration and the right to self-determination powerfully:
At stake here is the shape of the community that acts in the world, exercises sovereignty, and so on. Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life (612, authors emphasis).

Not all those who draw the connection between immigration control and the right selfdetermination share Walzers concern for, or emphasis on, the existence or importance of communities of character, but they all emphasise the fundamental signicance of states peoples nations (I will use states as shorthand for now) being free to control the shape of the self that is supposed to be self-determining. In other words, they highlight the importance of states freedom to set their own membership rules. Their concern is that citizens are entitled to control the shape of the citizen body. Wellman, for example, notes that the countrys course will be charted by [its] members (1145). The rst part of these arguments, thus, ordinarily takes the following form: States peoples nations enjoy a right to self-determination. A fundamental aspect of the collective right to self-determination is having control over what the self is (Wellman 115). Therefore, as part of the right to self-determination, states peoples nations must enjoy a right to control the terms of membership. Then the question is how they move from the right to control membership to the right to control immigration (the terms of admission to, and residence in, the territory as well as the terms of membership). One might accept that states have the right to control the terms of access to membership but not the right to control the terms of admission to
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

259

territorythat states are permitted to decide when and whether to grant citizenship status to immigrants, but that they are not permitted to prevent immigrants from crossing into their territory and settling within the borders. Again, these arguments, focused as they are on the rights of liberal democracies, often follow Walzers lead. In summary: In keeping with the demands of democracy, all long-term residents of a democratic state must have the option of acquiring the full rights of citizenship at some stage, including equal political rights. Without that option, they may be vulnerable to political oppression at the hands of the citizens, and permanent alienage is inimical to the maintenance of democracy. Since democracies must leave the door to citizenship open to all long-term residents, in order to have control over membership they must have control over who may enter and settle in the state (Walzer, Miller [d], Wellman [a]). Evidently, if you are not persuaded that all long-term residents (eventually) must have the option of acquiring citizenship rights, you will not be persuaded that these arguments about access to membership also provide a defence for the right to exclude immigrants from entering and settling in the states territory. Even if you are persuaded that longterm residents should have the option of becoming citizens, you will notice that the selfdetermination argument on its own is not sufcient to support a right to exclude those who are not prospective long-term residents. I will return to this point in Section IV. In what follows, I will outline three different sorts of argument which each connects the right to exclude and the right to self-determination. Next I will raise three challenges which apply to all of the three arguments.
3.1. FREEDOM
OF ASSOCIATION

In an interesting move, Christopher Heath Wellman founds his defence of the states right to exclude upon the right to self-determination, by drawing attention to the relationship between self-determination, freedom of association, and exclusion. According to Wellman, individuals enjoy a right to self-determination, and an important aspect of the right to self-determination is the freedom to associate. The freedom to associate includes the right not to associate and even, in many cases, the right to disassociate (Wellman [a] 109). In the same way, he argues that the citizens of a state collectively enjoy a right to self-determination, and the accompanying freedom to associate. He refers to these as the states right to self-determination and the states right to freedom of association. Wellman acknowledges that, on this account, the precise nature of and justication for the states right to freedom of association is not automatically clear; since membership in the state is usually nonvoluntary, its collective right to freedom of association cannot be understood or defended on the same terms as the rights of voluntary associationsthat is, respecting the autonomous decisions of the group members. He sets those concerns to one side, though, pointing out that our commitment to states rights to associate freely is clear from our beliefs that states should not be forced into association with other states (it would not be legitimate to coerce a country to join NAFTA against its will, for example), and that forcible annexation is not permissible (1123). In short, Wellman contends that, [j]ust as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow-citizens has a right to determine whom (if anyone) it would like to invite into its political community. And just as an individuals freedom of association entitles one to remain single, a states freedom of association entitles it to
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

260 The Ethics of Immigration

exclude all foreigners from its political community (11011). This is Wellmans presumptive case for the states right to exclude. Theoretically it could be defeated, Wellman admits, by competing claims. However, ultimately he concludes that, all things considered, even if egalitarians are right that those of us in wealthy societies have stringent duties of global distributive justice, and even if libertarians are correct that individuals have rights both to freedom of movement and to control their private property, legitimate states are entitled to reject all potential immigrants, even those desperately seeking from corrupt governments (141). Interestingly, Wellman points out one of the limits to the states exclusionary rights:
[G]iven that the pivotal issue involves the twin facts that (1) countries may not admit people for indenite periods without extending them equal membership rights and (2) groups of citizens have the right to control membership in their political communities, this suggests that even legitimate states do not necessarily have the right to bar foreigners from visiting for a duly limited period If so, then the arguments offered in this article would leave much more room for freedom of movement than the status quo, since it would allow most people to travel freely around the world (as tourists, to family or doctors, or even to study or work) as long as they did not stay indenitely in some place without the permission of the host political community (1367).

3.2. ASSOCIATIVE

OWNERSHIP

Ryan Pevnick shares Wellmans conviction that the states right to control immigration is connected in some way to the right to self-determination, but disagrees with the route that Wellman takes from there: there is no obvious sense in which citizens, born into membership, can be said to be freely associating with one another. It is a mistake to defend immigration restrictions by reference to the citizenrys claims of freedom of association when the relevant association is not freely entered into (Pevnick 30). Instead, Pevnick offers an account of the precise grounds for the citizens collective right to self-determination (given that membership of the state is usually nonvoluntary) and how this is related to the states right to control immigration. According to Pevnick, citizens have rights of ownership over their collective accomplishments, notably their political institutions. The citizens rights of ownership comprise rights to decide which direction the institutions will pursue, and to decide who will make these sorts of decisions in the futurea right to self-determination (33). Thus, citizens are entitled to pass on the running of the institutions to their own descendants (378):
[T]he construction of state institutions is a historical project that extends across generations and into which individuals are born [T]he value of membership in a state is very largely a result of the labor and investment of the community. The citizenry raises resources through taxation and invests those resources in valuable public goods: basic infrastructure, defense, the establishment and maintenance of an effective market, a system of education, and the like [T]hese are goods that only exist as a result of the labor and investment of community members (38).

Pevnicks case draws on familiar arguments about the connection between labour and ownership. He quotes the following passage by Lawrence Becker:
When labor is (1) beyond what is required, morally, that one do for others; (2) produces something which would not have existed except for it; and (3) its product is something which others lose nothing by being excluded from; then (4) it is not wrong for producers to exclude others from the possession, use, etc. of the fruits of their labors (Becker, qted in Pevnick 34, authors emphasis).

2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

261

`-vis state institutions, citizens are in a position to Because of their ownership claims vis-a legitimately deny membership to some outsiders (53). Importantly, the associative ownership argument, Pevnick suggests, only supports the right to exclude those who want to enter the state in order to gain access to a set of goods to which they are not entitled. On the other hand, he argues that the state is obligated to make a good faith effort to admit those who seek territorial access just for the sake of territorial access (60). There are also limits to the legitimate claims of associate owners. Pevnick contends that associative owners are not permitted to exclude, for example, the children of disliked minorities, who are born within the territory but who have not yet contributed to the system (66). Furthermore, associative ownership claims do not always outweigh the claims of outsiders who wish to enter, particularly when those outsiders are in desperate need (12).
3.3. NATIONAL
SELF-DETERMINATION

Another strand of prominent philosophical arguments about the connection between immigration control and self-determination focus on cultural-nationalist claims, from a so-called liberal nationalist position. There are many components to liberal nationalist arguments about immigration, but I will concentrate on the basic case relating to national self-determination. Liberal nationalists maintain that one of the legitimate roles of the modern (nation) state is to protect its distinctive national culture (Miller [a] 85, Miller [d] 375). The national culture (a set of overlapping cultural characteristicsbeliefs, practices, sensibilities) is important for its members sense of their collective identity and belonging, as well as providing them with a background against which more individual choices about how to live can be made (Miller [a] 856). Inevitably, fellow nationals have an interest in the character and maintenance of their national culture. While national cultures necessarily evolve and adapt over time, in response to internal transformations, migration, global inuences, and so forth, so there is no question of avoiding change (on this point, see Schefer), liberal nationalists tend to be particularly concerned about the pace of change, and primarily the states capacity to integrate new arrivals:
[I]mmigration might pose a problem where the rate of immigration is so high that there is no time for a process of mutual adjustment to occur In such cases the education system and other such mechanisms of integration may be stretched beyond their capacity (Miller [a] 128).

In short, part of national self-determination must involve maintaining some degree of control over the maintenance of the national culture, which will require some control over the pace of change, and that will involve maintaining some control over immigration. Again, each of these positions contains more layers of complexity than I am able to explore here, but in all of the three cases we can clearly see the appeal of the different defences based on the claims of collective self-determination. The direction that the state takes on different policy fronts matters deeply to its members, and (in a democracy) that direction will depend on the composition of its membership. In order to control membership, states must have some control over immigration. 4. Challenges Do these arguments provide sufcient support for the claim that the state has a right to exclude would-be immigrants? In this section I will outline three key challenges that each position must meet in order to show that they provide a thorough-going defence of the right to exclude.
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

262 The Ethics of Immigration

4.1. TERRITORY

A rst challenge for arguments which defend the states right to exclude with reference to the collective right to self-determination is to connect the right to exclude prospective members from the self-determining community and the right to exclude outsiders from the states territory. As I pointed out earlier, the link is usually made by maintaining that longterm residents, in a democracy, eventually must be granted access to the rights of citizenship, which means that controlling access to membership necessarily means controlling access to long-term residence. But even if you agree that long-term residents should have the option of becoming citizens, the self-determination argument is not sufcient to support a right to exclude those who are not prospective long-term residents. This in itself is not necessarily a problem for these positions. Wellman and Pevnick simply argue that short-term visitors should be at liberty to enter the state, for limited periods. However, this throws up a further set of complex questions: what exactly constitutes a short-term stay? A few months? A year? Up to ve years? How long a stay is long enough to trigger inclusionary claims? Which sorts of rights and obligations do short-term visitors have while resident in the state? Can the state forcibly evict them once that period ends? On what grounds? What if they require life-saving medical treatment? What if they form familial attachments? The philosophers who take this position have many questions still to answer. Moreover, there remains the deeper issue of what exactly connects the relevant selfdetermining community to the relevant territory, such that the state representing that community is entitled to have this level of control over access to the particular territory.4 One might argue that states as we know them are territorial, requiring control over a particular territory in order to function properly as states, and so the various arguments that count in favour of having functioning states and which legitimise the connection between a particular set of people and their state, also count in favour of having states with control over territory and legitimise the connection between a particular state and territory (Pevnick 57, Wellman [a] 131). While, on these accounts, the connection between state and territory is not sufcient to justify the territorial exclusion of short-term visitors, it is enough to justify the territorial exclusion of prospective long-term residents, i.e. potential members. In the rst place, you might wonder whether the straightforward argument that states require control over a specic territory, and that the people who live in that territory are represented by that state, is sufcient to show that legitimate states are entitled to control access to the particular territory that they claim for themselves (see Stilz [a], Ypi [a], Nine [a], Steiner, Fine [a] chapter 6, Song). This is a fraught topic, bound up with questions about the history of injustice that underlies all existing state borders, but also with complex philosophical issues about the legitimate appropriation of land. Pevnicks argument, for example, is founded upon the assumption that we should conceive of the earth as initially unowned, and essentially up for grabs. But if we replace that assumption with the conviction that we are all, in some sense, common owners of the earth, then the subsequent arguments about legitimate appropriation are likely to be different, and this, in turn, will have different implications for discussions about the states right to exclude would-be immigrants from the territory over which the state claims jurisdiction (see for example Blake and Risse).
4.2. COMPETING
CLAIMS

The second challenge faced by each attempt to defend the states right to exclude (as with any defence of a right)5 is to indicate why the states interests in exclusion outweigh the
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

263

claims of would-be immigrants to be admitted to the territory and or membership, such that it can be said to have a general right to exclude. Each of the arguments about selfdetermination that I have outlined go some way to showing why the states control over immigration is usually important to the state and its members, but we also know that would-be immigrants typically have signicant interests in being admitted. The conventional move here is to argue that the states citizens claims to exclude would-be immigrants are weakest and even may be defeated where the would-be immigrants in question have the strongest claims to be admitted, as in the case of those eeing for their lives and seeking sanctuary. And so if the state has a general right to exclude, either that right does not extend to excluding refugees, for example, or at times may be defeated by the competing rights of refugees, in line with a principle of rescue or charity (Pevnick 12).6 This is a move familiar from debates about property rightseven if my bundle of property rights in relation to my house ordinarily includes the right to exclude outsiders from it, I may not be entitled to close my door to someone eeing from an attacker. Furthermore, as Walzer highlights, nation states may recognise special obligations to admit would-be immigrants (especially those in need) who have some historical, national connection to the state (Walzer 42). Perhaps you are inclined to think that this answers the challenge: the states interests in controlling immigration, connected as they are to the claims of self-determination, are sufcient to outweigh those of the average would-be immigrant, but not necessarily the interests of those in a desperate situation. Yet note that the interests of the average would-be immigrant are not to be dismissed lightly. Immigrating is a very difcult, costly business, usually involving social and cultural upheaval, leaving family and friends, learning new rules, languages, mores. Most people do not do it. We must assume that those who do it have good reasons for taking on the various challenges (see Fine [a] 348). In response, you might reply with examples regarding the rights of voluntary associations (as Wellman does). Susan may have shown you that she really wants to join your chess club, but that does not mean you must oblige her. Let her set up her own club. Here, though, we must take account of some of the vital distinguishing characteristics of the state as an institution. For one thing, states are everywhere. We all nd ourselves in the jurisdiction of one or other of them. We need to live in one, somewhere. More to the point, in this world, if we nd ourselves without membership in one or other of them, we are in serious trouble (Arendt). But we cannot just get together with our excluded friends and set up one of our own (Fine [a], Cole, Lane). So states rights to exclude are far more signicant in peoples lives than the rights of voluntary associations to exclude. Again, in response, you might think that this is not a problem, as long as people have somewhere to go, some state which is willing to grant them membership. But states are not interchangeable: the interests in living in state A are not always interchangeable with the interests in living in state B or state C. Prohibiting outsiders from settling in and becoming members of a particular state hinders or prevents their pursuit of all the many familial, social, religious, cultural, political, or economic interests (Fine [a] 348). In other words, we are back to the original acknowledgement that there are weighty claims on both sides, and we cannot simply come down on the side of the state without explaining exactly why the states claims trump those of the would-be immigrants, or without thinking carefully about the limits to the states legitimate claims regarding selfdetermination. As Pevnick himself makes clear, there is a range of limits that we acknowledge already without denying the importance of collective self-determination (Pevnick). Bear in mind that, in principle (and also in practice, in some times and places),
2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

264 The Ethics of Immigration

states might claim that the collective right to self-determination entitles them to regulate and limit citizens rights to have children, or citizens rights to leave the country and settle elsewhere, in order that states may maintain control over the future shape and character of the citizen body (Fine [a] 353). If you wish to reject the states claim to control the future shape and character of the citizen body by these methods, you already accept that the states interest in controlling the character and composition of the citizenry does not trump a range of other important interests.
4.3. THE SELF
IN SELF-DETERMINATION

This leads us on to the third, and potentially most signicant, challenge for arguments that defend the states right to exclude would-be immigrants, in connection with the collective right to self-determination. These arguments, as we have seen, all rest on the basic claim that the collective who is to be self-determining has an interest in maintaining control over the character of that self, hence in maintaining control over access to membership of the self-determining community. The obvious question, then, is how to identify the members of the self-determining community who are supposedly entitled to maintain that control. Perhaps the nationalist case has the easiest job: it can equate the self-determining community with the nation. However, that is not as straightforward as it may appear, since we are looking for a defence of the states right to exclude, and the boundaries of a particular state do not always map onto the boundaries of a particular national group. Many states are multinational, many national groups cross over the borders of states, and many citizens of many states do not identify with the majority national group in that state. So, in fact, the nationalist has the often difcult task of showing how precisely to connect the states right to exclude with arguments based on claims about nationality and nationhood (for further discussion, see Fine [c], chapter 3). Pevnicks argument about associative ownership also faces important challenges on this front. If the citizens collective right to self-determination is defended by means of an argument about their labour which brings the states institutions into existence and maintains them across time, then those who live within the borders but are not contributors (children, for example) do not seem qualify as owner-members on this account this is why Pevnick needs to tell a different story about their entitlement to be treated as members (Pevnick 65-66). Furthermore, there will be a signicant grey area where notional outsiders make fundamental contributions to the maintenance of one states institutions but nonetheless do not seem, on Pevnicks account, to qualify as members of the states self-determining community. The most obvious examples might include the essential contribution that some countries make to the rebuilding of other states in postconict situations, or after major national disasters, or even in continual, substantial donations of foreign or military aid.7 There will also be tough questions about the potential ownership-membership claims of former imperial and colonial powers, particularly where those powers can point to their historical contribution to basic infrastructure, the education system and so forth. The associative ownership account not only appears to leave out some obvious candidates for membership, but potentially and inadvertently includes some less obvious candidates. Yet the difcult question of how to distinguish between rightful members and nonmembers, insiders and outsiders, is brought into view even more clearly when we consider that the arguments under consideration tend to maintain that democratic states are not entitled to exclude long-term residents from access to membership, and on speci 2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

265

cally democratic grounds. The underlying claim is, as Walzer puts it, that those who are subject to the states authority must be given a say, and ultimately an equal say, in what that authority does (Walzer 61). However, once we begin to think about what it is to be subject to the states authority, and so what exactly triggers the demand to be given a say, or an equal say, we might not be convinced that those who are subject to the states authority are only those within the states territorial borders. Thus we come to one of the more lively debates in contemporary political philosophy, which centres around the question of how we identify the members of the group entity (people demos) supposedly entitled to make the decisions in a democracy (for recent interventions in the debate see Goodin, Abizadeh [a, b], Miller [e, f], Baubo ck [b], Owen [a], Fine [b, c]). This question is absolutely pivotal for debates about the states right to exclude; even when we take seriously the claim that those who must live by a set of a rules should be entitled to participate in the making of those rules, we must notice that immigration rules are also designed to apply to would-be immigrants and immigrants. Why should states be entitled to impose those rules on would-be immigrants and immigrants without giving them a say in the making of the rules? Do would-be immigrants actually have some kind of claim to participate in the making of those rules? As soon as we delve more deeply into the implications of our basic democratic commitments, including the commitment that those who are subject to the states authority should have a say in what that authority does, we open up a can of worms for arguments that base the states right to exclude would-be immigrants on the commitment to collective self-determination. 5. Conclusion Political philosophers have been slow to engage with the full range of difcult philosophical questions that arise in the context of the ethics of immigration. Now that the subject well and truly has arrived on the scene, the debate looks set to rage on and on for the foreseeable future. We cannot take anything for granted here: even something as seemingly obvious and familiar to our political landscape as the states right to exclude wouldbe immigrants is, when subjected to the proper philosophical treatment, not that obvious at all. Acknowledgements The author would like to thank Duncan Bell, Tony Laden, and Andrea Sangiovanni for helpful comments and suggestions. Biography Sarah Fine is Lecturer in Philosophy at Kings College London. She specialises in issues relating to migration and citizenship. Her monograph, Immigration and the Right to Exclude, is forthcoming with Oxford University Press. The book critically examines the dominant view that states enjoy a moral right to exclude would-be immigrants. She is co-editing a book (with Dr Lea Ypi), Migration in Political Theory: the Ethics of Movement and Membership, also forthcoming with Oxford University Press. Sarah Fine was an undergraduate student at the University of Cambridge. She received her MPhil and DPhil from the University of Oxford. Before joining the Department of Philosophy at Kings, she was a Research Fellow at Corpus Christi College, Cambridge.

2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

266 The Ethics of Immigration

Notes
* Correspondence: Sarah Fine, Lecturer in Philosophy, Room 902, Philosophy Building, Kings College London, Strand, London WC2R 2LS, UK. Email: sarah.ne@kcl.ac.uk.
1

For the most part, at least, perhaps with some qualications relating to the entry and treatment of those seeking asylum. 2 In exceptional cases, democratic states may introduce limited, temporary barriers to internal freedom of movement, for example during times of natural disaster or war. Needless to say, not all self-proclaimed democracies actually grant their own citizens the right to move and settle freely within their own borders, and many stood in the way of freedom of movement in the recent past (Apartheid South Africa is one obvious example). 3 On this point, see also Nagel. 4 The nationalist argument is in a slightly different position here, because it draws a clear connection between the identity of the community in question and its attachment to a specic territory. Nonetheless it still must make a case for the states claim to control access to the specic territory. 5 There is not space to elaborate on the various different ways of characterising rights in general or the right to exclude in particular, and how these relate to other rights and claims, but for an informative discussion of Wellmans characterisation of the right to exclude and how it impacts on the debate here, see Blake [b]. 6 I should note that the burden of argument is highest here for Wellman, who maintains that, while states may have a variety of obligations to those in need, as long as they act on those obligations they are not required to admit outsiders (even those eeing persecution) into their territory (Wellman [a] 129). On this point, see Fine [a], and Blake [b]. 7 Consider the relationship between the USA and Haiti, or the USA and Pakistan, or the USA and Japan. Or consider the reverse situation, where one state or group of states deliberately attempts to stie the ability of another state to maintain its institutions over time, e.g. USA and Cuba.

Works Cited
Abizadeh, Arash. 2008. (a) Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders. Political Theory, 36.1. 3765. . 2010a. (b) Democratic Legitimacy and State Coercion: A Reply to David Miller. Political Theory, 38.1. 12130. . (c) Citizenship, Immigration, and Boundaries. Ethics and World Politics. Ed. Duncan Bell. Oxford: Oxford UP, 2010b. 35876. Arendt, Hannah. The Origins of Totalitarianism. New York: Harcourt, 1951. Bader, Veit. 2005. The Ethics of Immigration. Constellations, 12.3. 33161. Barry, Brian and Goodin Robert E, eds. Free Movement: Ethical Issues in the Transnational Migration of People and of Money. Pennsylvania: Pennsylvania State UP, 1992. Baubo ck, Rainer. (a) Transnational Citizenship: Membership and Rights in International Migration. Aldershot: Edward Elgar, 1994. . 2009. (b) Global Justice, Freedom of Movement and Democratic Citizenship. European Journal of Sociology, 50.1. 131. Benhabib, Seyla. The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge UP, 2004. Benton, Meghan. 2010. The Tyranny of the Enfranchised Majority? The Accountability of States to Their NonCitizen Population. Res Publica 16.4. 397413. Blake, Michael. (a) Immigration. A Companion to Applied Ethics. Eds. R.G. Frey, Christopher Heath Wellman. Oxford: Blackwell, 2004. 22437. . 2012. (b) Immigration, Association, and Antidiscrimination. Ethics 122.4. 74862. and Risse Mathias. Is There a Human Right to Free Movement? Immigration and Original Ownership of the Earth. Faculty Research Working Paper Series, John F. Kennedy School of Government, Harvard University. 2006. Bosniak, Linda S. 1991. (a) Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention. International Migration Review, 25.4. 73770. . (b) The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton, NJ: Princeton UP, 2006. Calder, Gideon, Cole Phillip and Seglow Jonathan, eds. Citizenship Acquisition and National Belonging: Migration, Membership and the Liberal Democratic State. Hampshire: Palgrave Macmillan, 2010. Caplan, Jane and John Torpey, eds. Documenting Individual Identity: The Development of State Practices in the Modern World. Princeton, NJ: Princeton UP, 2001. Carens, Joseph H. 1987. (a) Aliens and Citizens: The Case for Open Borders. The Review of Politics, 49.2. 25173.

2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

The Ethics of Immigration

267

. (b) Nationalism and the Exclusion of Immigrants: Lessons from Australian Immigration Policy. Open Borders? Closed Societies? The Ethical and Political Issues. Ed. Mark Gibney. Westport: Greenwood Press, 1988. 4160. . 2009. (d) The Case for Amnesty: Time Erodes the States Right to Deport. Boston Review. Retrieved on 22 November 2005 from: http://bostonreview.net/BR34.3/ndf_immigration.php. . (e) The Ethics of Immigration. New York: Oxford UP, forthcoming. Cole, Phillip. Philosophies of Exclusion: Liberal Political Theory and Immigration. Edinburgh: Edinburgh UP, 2000. Dummett, Michael. On Immigration and Refugees. London and New York: Routledge, 2001. Fine, Sarah. 2010. (a) Freedom of Association is Not the Answer. Ethics, 120.2. 33856. . 2011. (b) Democracy, Citizenship and the Bits in Between. Critical Review of International Social and Political Philosophy, 14.5. 62340. . (c) Immigration and the Right to Exclude. Oxford: Oxford UP, forthcoming a. . (d) Immigration and Discrimination. Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming b. and Ypi Lea. Migration in Political Theory: The Ethics of Movement and Membership. Oxford: Oxford UP, forthcoming. Honohan, Iseult. 2009. Reconsidering the Claim to Family Reunication in Migration. Political Studies, 57.4. 76887. Gibney, Matthew J. The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees. Cambridge: Cambridge UP, 2004. Goodin, Robert E. 2007. Enfranchising All Affected Interests, and its Alternatives. Philosophy & Public Affairs, 35.1. 4068. Joppke, Christian. Selecting by Origin. Ethnic Migration in the Liberal State. Cambridge, MA: Harvard UP, 2005. Kapur, Devesh and McHale John. 2006. Should a Cosmopolitan Worry about the Brain Drain? Ethics and International Affairs, 20.3. 30520. Kukathas, Chandran. (a) Immigration. The Oxford Handbook of Practical Ethics. Ed. Hugh LaFollette. New York: Oxford UP, 2002. 56790. . (b) Are Refugees Special? Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming. Lane, Melissa. A Philosophical View on States and Immigration. Globalizing Migration Regimes: New Challenges to Transnational Cooperation. Eds. Kristof Tamas, Joakim Palme. Aldershot: Ashgate, 2006. 13143. Miller, David. (a) On Nationality. Oxford: Clarendon Press, 1995. . (b) Immigration: The Case for Limits. Contemporary Debates in Applied Ethics. Eds. Andrew I. Cohen, Christopher Heath Wellman. Oxford: Blackwell, 2005. 193206. . (c) National Responsibility and Global Justice. Oxford: Oxford UP, 2007. . 2008. (d) Immigrants, Nations, and Citizenship. The Journal of Political Philosophy, 16.4. 37190. . 2009a. (e) Democracys Domain. Philosophy & Public Affairs, 37.3. 20128. . 2009b. (f) Why Immigration Controls are not Coercive: A Reply to Arash Abizadeh. Political Theory, 38.1. 11120. . (g) Is There a Human Right to Immigrate?. Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming. Nagel, Thomas. 2005. The Problem of Global Justice. Philosophy & Public Affairs, 33.2. 11347. Nine, Cara. 2008. (a) A Lockean Theory of Territory. Political Studies, 56.1. 14865. . 2010. (b) Ecological Refugees, States Borders, and the Lockean Proviso. Journal of Applied Philosophy, 27.4. 35975. Oberman, Kieran. (a) Immigration and Freedom of Movement. D.Phil. Thesis, University of Oxford, 2009. . forthcoming. (b) Can Brain Drain Justify Immigration Restrictions?. Ethics. Owen, David. 2011. (a) Transnational Citizenship and the Democratic State: Modes of Membership and Voting Rights. Critical Review of International Social and Political Philosophy, 14.5. 64163. . (b) In Loco Civitatis: On the Normative Basis of the Institution of Refugeehood and of Responsibilities for Refugees. Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming. Pevnick, Ryan. Immigration and the Constraints of Justice: Between Open Borders and Absolute Sovereignty. New York: Cambridge UP, 2011. Pogge, Thomas. Migration and Poverty. Citizenship and Exclusion. Ed. Veit Bader. Basingstoke: Macmillan, 1997. 1227. Risse, Mathias. 2008. On the Morality of Immigration. Ethics and International Affairs, 22.1. 2533. Shacknove, Andrew E. 1985. Who Is a Refugee? Ethics, 95.2. 27484. Schefer, Samuel. 2007. Immigration and the Signicance of Culture. Philosophy & Public Affairs, 35.2. 93125. Seglow, Jonathan. 2005. The Ethics of Immigration. Political Studies Review, 3.3. 31734. Shachar, Ayelet. The Birthright Lottery: Citizenship and Global Inequality. Cambridge, MA: Harvard UP, 2009.

2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019

268 The Ethics of Immigration

Song, Sarah. The Signicance of Territorial Presence and the Rights of Immigrants. Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming. Steiner, Hillel. 2008. May Lockean Doughnuts Have Holes? The Geometry of Territorial Jurisdiction: A Response to Nine. Political Studies, 56.4. 94956. Stilz, Anna. 2009. (a) Why Do States Have Territorial Rights? International Theory, 1.2. 185213. . (b) Is there an Unqualied Right to Leave? Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming. Torpey, John. The Invention of the Passport: Surveillance, Citizenship and the State. Cambridge: Cambridge UP, 2000. The Universal Declaration of Human Rights (1948) Retrieved on 9 November 2012 from: http://www.un.org/ en/documents/udhr/index.shtml. Walzer, Michael. Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books, 1983. Wellman, Christopher Heath. 2008. (a) Immigration and Freedom of Association. Ethics, 119.1. 10941. . (b) Immigration. The Stanford Encyclopedia of Philosophy. Ed. Edward N. Zalta. [Online]. Retrieved on 14 August 2012 from: http://plato.stanford.edu/archives/sum2010/entries/immigration/. and Cole Phillip. Debating the Ethics of Immigration: Is There a Right to Exclude? New York: Oxford UP, 2011. Whelan, Frederick G. 1981. Citizenship and the Right to Leave. American Political Science Review, 75.3. 63653. Wilcox, Shelley. 2009. The Open Borders Debate on Immigration. Philosophy Compass, 4.5. 81321. Ypi, Lea. forthcoming a. (a) A Permissive Theory of Territorial Rights. European Journal of Philosophy. . (b) Who is Exploited? The Moral Dilemmas of Guestworker Programmes. Migration in Political Theory: The Ethics of Movement and Membership. Eds. Sarah Fine, Lea Ypi. Oxford: Oxford UP, forthcoming b.

2013 The Author Philosophy Compass 2013 Blackwell Publishing Ltd

Philosophy Compass 8/3 (2013): 254268, 10.1111/phc3.12019