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To what extent do states have the right to exclude foreigners from settling within their borders?
This question is concerned with the relationship between states and their members. In debates on immigration, there are usually two positions. One view is the movement of people between states should be completely free thus borders should be open. The other view is that states have a right to exclude foreigners from settling within their borders. On the face of it, the right to exclude looks morally contestable as it involves substantial state force. For instance, criminalising individuals for unauthorised border crossings and it involves forcibly preventing people from getting things that they might desperately need like a better life for them and their family. As these factors are usually considered to be morally wrong, then can such a right to exclude be morally justified. Within this essay, I will exhibit both positions from the perspectives of Joseph Carens and David Miller. I will argue that states do not have a right to exclude.
Firstly, I will demonstrate the argument from Joseph Carens for open borders thus disagreeing with the statement that states have a right to exclude. Advocates for open borders are not arguing for wholly elimination of borders but rather for changes in how those affected might move across them and in how they are understood. Carens claims that there is no right for states to unilaterally control their own borders as he believes that “borders should generally be open and people should normally be free to leave their country of origin and settle in another” (Carens, 2013,225) He contends that states’ rights to exclude outsiders from settling in their borders are incompatible with our basic values and commitments. One being freedom. Immigration restrictions are a serious infringement on freedom, especially on freedom of movement. This freedom both good in itself as it is an expression of autonomy and it is also instrumentally valuable as it enables individuals to improve their prospects if they have the ability to move to a more advantageous location. The other being fundamental moral equality. Immigration restrictions enforce huge inequalities of opportunity. Freedom of movement is essential for equality of opportunity and this explains our intuition about the wrongness of feudalism. Carens provides an analogy where he compares contemporary states’ practice of border control to medieval feudal societies. He is claiming that being born in a rich state for example, Europe and North America is like being born into medieval nobility and to be born in a poor country is like being born into peasantry. This is applicable to now with the deductions that your place of birth determines your initial prospects and that states prevent you from trying to improve your situation by moving to another country. The “modern practice of state control over borders tie people to the land of their birth almost as effectively (as feudal practice)” (Carens,2013,226) Carens believes that since we endorse freedom of movement with society, we should endorse it with respect to outsiders too. Following this, freedom of international movement should be considered as a basic human right. Caren’s also provides another argument which is the idea that if you are committed to uncontroversial human rights you should be committed to there being a human right to cross borders. For instance, an uncontroversial right would be the right to freedom of movement within one’s own country. As Carens puts it “if it is so important for people to have the right to move freely within a state. Isn’t it equally important for them to have the right to move across state borders” also “every reason why one might want to move within a state may also be a reason for moving between states” (Carens,2013,239) for example love, job, religion, cultural opportunities. This is stating that every reason in which an individual might have for moving within a country can also be applicable to move across state borders. Although Carens does believe that these arguments provide a strong case for states to have open borders, nonetheless he does acknowledge that some immigration restrictions can be justified. He claims that we cannot justify them by appealing to a state’s right to decide but there could be other justifications that appeal to other considerations that are compatible with viewing all individuals as having equal moral worth. For instance, extreme overcrowding or serious security threats. From this I will now look at the perspective that states do have a right to exclude.
In contrast, David Miller objects to Carens position. He argues from a restrictive perspective and contends that states do have a right to exclude. Miller’s main claim is that there could be ‘cases in which nation states could be justified in imposing restrictive immigration policies’ (Miller,2014,363) Miller provides objections to Caren’s argument for the case of open borders. One is on the argument from a human right to internal freedom of movement. He questions actually how much movement is required by this right “What is less clear…is the physical extent of the right, in the sense of how much of the earth’s surface I must be able to move to in order to say that I enjoy it” (Miller,2014,365) He argues that Carens is not clear about the physical extent of the right for instance how much of the earth’s surface can we move in order to enjoy the right? Miller points out that the internal right to movement is actually subject to lots of restrictions that seem acceptable for example parking regulations, private property etc. His view is that the right to movement protects an adequate range of options not a maximal range of options. He provides a distinction between basic freedoms and bare freedoms. Basic freedoms are those necessary for a minimally decent life and bare freedoms are those not necessarily for a minimally decent life. Carens suggests that the right to freedom of movement is a basic freedom. Whereas Miller counters this to argue that as long as your state gives you an adequate range of free movement, your human right is satisfied and you do not have a general claim to immigrate to another state of your choice thus a bare freedom. Miller also provides a positive case for the right to exclude. According to Miller’s view, individuals don’t have a general right to immigrate. One reason for this is to preserve culture. He believes that states have a legitimate interest in preserving the political culture and or controlling how that culture changes over time for instance the role of language in maintaining a public culture for example if a lot of English people move to Thailand how would that affect the native language. Another reason is that the role of immigration restrictions plays an important role in curbing the population growth both globally and nationally as immigration can cause all sorts of problems. For instance, the natural environment can be jeopardised by overcrowding, also increase in climate change and resource consumption. On the other hand, what about cases of refugees fleeing persecution or starvation? Miller is targeting general claims about right to immigrate, he does acknowledge that there are more extreme cases of immigration. He contends that they do potentially have a right to enter another state due to their basic freedoms and interests are not being met by their state. However, this is not a general right to immigrate to any state of your choice, you only a right that some state let you enter rather it is a remedial right. It only exists if people are acting wrongly so for Miller, in a just world people would not have it. However, what about people who don’t even have the minimum, do they not have the right to immigrate? Miller would respond to this by agreeing they do have a right but it depends. Wealthy states are either obliged to either allow such persons to immigrate or aid them in their home country. Millers argues that it is more preferable to aid people in their home country. As immigration is unlikely to help the very worst off due to them not being able to afford to move and it might actually harm them. This is what he calls the brain drain problem which is where people with desired skills sets in a less well-off country getting paid more in the new country they immigrated to but leaving people behind who don’t have the skills left so are deprived.
In conclusion, I have exhibited two perspectives to the question as to whether states have the right to exclude foreigners from settling within their borders. Joseph Carens who argues that states do not have a right exclude and instead argues for open borders. In contrast David Miller argues from a restrictive perspective arguing that to a certain extent they do have a right to exclude. Following this, I have come to the conclusion that states do not have a right to exclude thus agreeing with Caren’s perspective that immigration restrictions infringe our human right of freedom.
Carens J (2013) ‘The Ethics of Immigration’ Chapter 11 – The case for open borders pgs 225-239
Miller D (2014) ‘Immigration: The Case for Limits’ in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Oxford: Wiley-Blackwell, (2nd ed.), pp. 363-376
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