the ethics of immigratioin

The Ethics of Immigration: Self-Determination and theRight to Exclude

Sarah Fine*King’s College London

Abstract

Many of us take it for granted that states have a right to control the entry and settlement of non-citizens in their territories, and hardly pause to consider or evaluate the moral justifications forimmigration controls. For a long time, very few political philosophers showed a great deal ofinterest in the subject. However, it is now attracting much more attention in the discipline. Thisarticle aims to show that we most certainly should not take it for granted that states enjoy a moralright to exclude would-be immigrants. It is neither obvious nor uncontroversial. And if we cannotfind adequate justifications for the existence of such a right, then we need to re-evaluate the verybackbone of current approaches to immigration policy. The paper begins with an overview of theexisting academic debate about the extent of the right to freedom of movement. Next it intro-duces three arguments in support of the state’s right to exclude would-be immigrants which drawon claims about the collective right to self-determination. Finally it outlines three important chal-lenges faced by these arguments in support of the state’s right to exclude.

1. Introduction

Immigration is a topic guaranteed to provoke impassioned popular debate. Almost everyaspect of any immigration policy proves politically contentious. Yet, despite all the dis-agreement, 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 theentry and settlement of non-citizens in their territories, as well as the terms and condi-tions for acquiring citizenship.1 Indeed, the right of states to control and restrict immigra-tion 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 theauthority to control the admission of non-citizens into their territories and the terms ofacquiring citizenship rights that many of us hardly pause to consider or evaluate the moraljustifications for immigration controls. For a long time, very few political philosophersshowed a great deal of interest in the subject; perhaps it did not attract much attentionbecause it just seemed ‘obvious’ that states ought to enjoy a right to control and restrictimmigration (Blake [a] 226; for the most notable exception, see Carens [a]).

When we do pause to consider the possible moral justifications for the right to excludewould-be immigrants, however, we cannot fail to notice that ‘borders have guards andthe guards have guns’ (Carens [a] 251). The state’s authority over immigration is often‘coercively enforced, through the familiar apparatus of border control, and the harsh mea-sures that await would-be immigrants if they fail to satisfy the legal requirements forentry’ (Miller [g]). States routinely try to keep out all sorts of would-be entrants, for allsorts of reasons, with impunity. They might exclude the needy, the poor, the frail, those

Philosophy Compass 8/3 (2013): 254–268, 10.1111/phc3.12019

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seeking work and other opportunities, those seeking an education, those wanting to bewith loved ones. They may attempt to detain and deport people who are in the countrywithout permission. Many people who are desperate to enter the state are turned away atthe borders or are refused the requisite visas and never make it to the borders. People risktheir lives in order to immigrate when permission is not granted. Some people die in theprocess 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 settlementof non-citizens stands in urgent need of moral justification.

The ethics of immigration is a broad and expanding academic topic, encompassing var-ious, complex philosophical issues regarding the movement and settlement of peopleacross state borders. The subject includes, but is not limited to, questions related to forcedmigration, particularly the nature and extent of duties towards refugees, as well as thevery definition of a refugee (see Gibney, Dummett, Benhabib, Shacknove, Kukathas,Owen [b], Nine [b]); what states owe to those immigrants they admit, especially in termsof access to citizenship and its accompanying rights, as well as the ethics of guest-workerprogrammes (Dummett, Miller [d], Pevnick, Baubock [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 presentwithout authorisation (Bosniak [b], Carens [d], Shachar); whether states may excludewould-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 responsibilitiesto particular would-be immigrants, such as those from their former colonies, or to familymembers of their citizens and residents, or to long-term undocumented migrants, and ⁄orto 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, Baubock); and questions about emigration, including the so-called problem of‘brain drain’ (see for example Oberman [b], Pogge, Kapur and McHale, Stilz [b]). All ofthese are important questions, which are addressed to various degrees in the burgeoningliterature 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 state’s supposed rightto 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 itsterritory (from crossing into geographical borders), a right to exclude them from settlingwithin the territory, and a right to exclude them from membership of the political com-munity (from acquiring citizenship status) (see Fine [a] 342–3). Exploring the grounds forthe state’s supposed right to exclude is a vital task, because if we cannot find adequatejustifications for this right then we need to re-evaluate the very backbone of currentapproaches to immigration policy. And what I want to show in the remainder of thispiece is that we most certainly should not take it for granted that states enjoy a moralright to exclude. It is neither obvious nor uncontroversial. In Section II, I provide anoverview of the existing academic debate about the extent of the right to freedom ofmovement. In Section III, I introduce three arguments in support of the state’s right toexclude would-be immigrants which are all based, in different ways, on arguments aboutthe collective right to self-determination. In Section IV, I outline three importantchallenges faced by arguments in support of the right to exclude, and I show why thesechallenges are significant.

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2. Freedom of Movement

Perhaps it seems intuitively obvious and uncontroversial that states have a right to excludewould-be immigrants because that is how states operate right now. The first importantpoint to note, then, is that things have not always been this way. At various points inmodern history, many states actually paid little attention at least to the movement andentry of non-citizens. On the other hand, states claimed the authority to control themovement of their own citizens and subjects within state territory, and to restrict theirfreedom to leave and ⁄or re-enter the state (for further discussion, see Torpey esp. chap-ters 1 and 3, and Caplan and Torpey). These practices were commonplace, and the factthat states claimed those rights also might have seemed obvious and morally uncontrover-sial in the past (see Whelan). However, if you are a citizen of a democratic state todayyou probably take it for granted that you enjoy the freedom to move around and settlein the place of your choosing within your own country, as well as the freedom to leaveany state, and to return to your own state. No doubt you would be shocked and appalledif your government decided to apply permanent internal migration restrictions, or tried tostop you leaving to take up a job in another country, or refused to let you return. Free-dom of movement within one’s country, the freedom to leave any state, and the freedomto return to one’s own state are now considered fundamental human rights and are recog-nised 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 noright to restrict domestic (internal) freedom of movement or freedom of exit is a late-twentieth century development. The mere fact that states claim the right to excludewould-be immigrants now is no reason to assume that the existence of such a right is obvi-ous or that the right itself morally uncontroversial. Indeed, one of the most important tasksfor political philosophers is to subject even the most seemingly obvious and uncontroversialaspects of our political landscape to critical assessment, and to examine whether they are incoherence 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 toargue 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 toexit any state, we are committed to recognising something like a human right to enterand settle in other states. Without a right to international freedom of movement whichincludes a right to immigrate, Phillip Cole argues, the right to exit is virtually meaninglessand worthless, because in order for people to enjoy a right to exit they must also enjoy aright to go elsewhere. In our world of states, that means a right to go to another state, aright to immigrate: ‘there can be no [right to emigrate] without a corresponding right toenter another state’ (Cole 56).

Moreover, some philosophers maintain that if we recognise a human right to freedomof movement within the state, we are also well on the road to recognising a human rightto international freedom of movement. They contend that the same basic interests andclaims which support the case for considering freedom of movement within state bordersto be a human right also support the case for considering freedom of movement acrossstate borders to be a human right (see especially Carens [a] 288, and Oberman [a]). Ifthere is a basic right to internal freedom of movement on those grounds, then there isalso a basic right to international freedom of movement. There is, these philosophersargue, no morally relevant distinction between the two cases.

Furthermore, some philosophers also argue that the state’s supposed right to excludewould-be immigrants, and thus to constrain their freedom of movement, is essentially at

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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 morallyarbitrary fact about them (like their ethnicity or their sex), a matter of chance, somethingfor which they are not responsible, and so it should not affect their access to opportunitiesor enjoyment of basic freedoms. As Cole argues, ‘with its universalist commitment to themoral equality of humanity, liberal theory cannot coherently justify these practices ofexclusion, which constitute ‘‘outsiders’’ on grounds any recognisable liberal theory wouldcondemn as arbitrary’ (Cole 2). In effect, the argument is that our prevailing immigrationpractices are inconsistent with our self-proclaimed commitment to moral equality.

If these arguments are correct, the case for the state’s right to exclude would not evenget off the ground. It would not be the state’s prerogative to admit or exclude would-beimmigrants in line with its own interests and preferences. As Miller clarifies, ‘[s]tateswould have to open their borders to all-comers unless they could show that there werespecific 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 migrationmatters stands at odds with the liberal commitment to moral equality, then self-proclaimed liberal democratic states that do so are clearly failing to live up to their ownregulative commitments.

On the other hand, you might agree with Miller and Michael Blake (among others)that these arguments are not sufficient to show that there ought to be something like aright 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 toimmigrate, understood as ‘the right to enter any state of one’s choosing’; for Miller, theright to emigrate ‘can be satisfied so long as there is at least one other place that one isnot prevented from entering’ (Miller [g], also Wellman [a] 135–6). Second, Miller arguesit is incorrect to maintain that the same considerations which support the right to domes-tic freedom of movement also support the case for a right to international freedom ofmovement (Miller [g]). Ultimately, Blake responds that there is a morally relevant differ-ence 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 ofthe state [existing residents] as distinct from wishing to become subject to the state’sauthority [would-be immigrants].3 ‘If a political system is going to take itself as authorisedto exercise the powers inherent in political governance, it owes some guarantees specifi-cally to those being governed. These guarantees, however, do not apply to those who arenot subject to the authority of the state’ and ‘[w]hen the political circumstances are rele-vantly different’, as they are in the case of existing residents versus would-be immigrants,‘moral egalitarianism demands—rather than condemns—political differences in treatment’(Blake [a] 228–9). 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, ratherthan a specific implication of moral equality which applies only within the context ofshared liability to the state’ (Blake [a] 229).

There is, of course, much more that these philosophers add in defence of their argu-ments, and their opponents offer a range of objections to each of these moves (for furtherdiscussion, see Wilcox). However, the central point is that it is not obvious that statesenjoy a right to exclude, but nor is it obvious that the right to exclude is fundamentally atodds with liberal democratic ideals or that these ideals automatically commit us to rec-ognising a right to international freedom of movement. Immigration, as Wellman andCole point out, is ‘theoretically significant because of the way in which it pits the claimsof the state as a whole against the individual rights of both citizens and foreigners’ (1).



There are weighty claims and measured arguments on both sides of the debate. In orderto evaluate the case for the state’s right to exclude would-be immigrants, we need to takea closer look at the specific 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 argu-ments in support of the state’s right to exclude. These are not arguments in support ofthe 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 immigra-tion rules and practices. Rather, they maintain that, in theory, and under the right kindof conditions, states may enjoy a right to exclude would-be immigrants.

These arguments thus generally focus on the rights of liberal democratic states, andmany of them explicitly connect the state’s right to exclude to the collective right of self-determination, that is, the right of a people (or state or nation) to set the terms of theircommon lives (Walzer, Miller [b], Wellman [a], Pevnick). The worry is that positionswhich argue in favour of more open immigration policies overlook or even ‘deny’ thecentral importance of the right to self-determination (Pevnick 39). The self-determinationarguments are potent and deserve careful consideration; after all, a commitment to theright 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 connec-tion between the right to control immigration and the right to self-determinationpowerfully:

At stake here is the shape of the community that acts in the world, exercises sovereignty, andso on. Admission and exclusion are at the core of communal independence. They suggest thedeepest meaning of self-determination. Without them, there could not be communities of charac-ter, historically stable, ongoing associations of men and women with some special commitmentto one another and some special sense of their common life (61–2, author’s emphasis).

Not all those who draw the connection between immigration control and the right self-determination share Walzer’s concern for, or emphasis on, the existence or importance of‘communities of character’, but they all emphasise the fundamental significance of state-s ⁄peoples ⁄nations (I will use ‘states’ as shorthand for now) being free to control the shapeof the ‘self’ that is supposed to be self-determining. In other words, they highlight theimportance of states’ freedom to set their own membership rules. Their concern is thatcitizens are entitled to control the shape of the citizen body. Wellman, for example, notesthat ‘the country’s course will be charted by [its] members’ (114–5). The first part ofthese 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 rightto control immigration (the terms of admission to, and residence in, the territory as wellas the terms of membership). One might accept that states have the right to control theterms of access to membership but not the right to control the terms of admission to



territory—that states are permitted to decide when and whether to grant citizenship statusto immigrants, but that they are not permitted to prevent immigrants from crossing intotheir territory and settling within the borders. Again, these arguments, focused as they areon the rights of liberal democracies, often follow Walzer’s lead. In summary:

• In keeping with the demands of democracy, all long-term residents of a democraticstate 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 politi-cal oppression at the hands of the citizens, and ‘permanent alienage’ is inimical to themaintenance 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 enterand settle in the state (Walzer, Miller [d], Wellman [a]).

Evidently, if you are not persuaded that all long-term residents (eventually) must have theoption of acquiring citizenship rights, you will not be persuaded that these argumentsabout access to membership also provide a defence for the right to exclude immigrantsfrom entering and settling in the state’s territory. Even if you are persuaded that long-term residents should have the option of becoming citizens, you will notice that the self-determination argument on its own is not sufficient to support a right to exclude thosewho 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 connectsthe right to exclude and the right to self-determination. Next I will raise three challengeswhich apply to all of the three arguments.

3.1. FREEDOM OF ASSOCIATION

In an interesting move, Christopher Heath Wellman founds his defence of the state’sright to exclude upon the right to self-determination, by drawing attention to the rela-tionship between self-determination, freedom of association, and exclusion. According toWellman, individuals enjoy a right to self-determination, and an important aspect of theright 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 toself-determination, and the accompanying freedom to associate. He refers to these as ‘thestate’s’ right to self-determination and the ‘state’s’ right to freedom of association. Well-man acknowledges that, on this account, the precise nature of and justification for thestate’s right to freedom of association is not automatically clear; since membership in thestate is usually nonvoluntary, its collective right to freedom of association cannot beunderstood or defended on the same terms as the rights of voluntary associations—that is,respecting the autonomous decisions of the group members. He sets those concerns toone side, though, pointing out that our commitment to states’ rights to associate freely isclear from our beliefs that states should not be forced into association with other states (itwould not be legitimate to coerce a country to join NAFTA against its will, for exam-ple), and that forcible annexation is not permissible (112–3). In short, Wellman contendsthat, ‘[j]ust as an individual has a right to determine whom (if anyone) he or she wouldlike to marry, a group of fellow-citizens has a right to determine whom (if anyone) itwould like to invite into its political community. And just as an individual’s freedom ofassociation entitles one to remain single, a state’s freedom of association entitles it to



exclude all foreigners from its political community’ (110–11). This is Wellman’s presump-tive case for the state’s right to exclude. Theoretically it could be defeated, Wellmanadmits, by competing claims. However, ultimately he concludes that, all things consid-ered, ‘even if egalitarians are right that those of us in wealthy societies have stringentduties of global distributive justice, and even if libertarians are correct that individualshave rights both to freedom of movement and to control their private property, legiti-mate states are entitled to reject all potential immigrants, even those desperately seekingfrom corrupt governments’ (141).

Interestingly, Wellman points out one of the limits to the state’s exclusionary rights:

[G]iven that the pivotal issue involves the twin facts that (1) countries may not admit people forindefinite periods without extending them equal membership rights and (2) groups of citizens havethe right to control membership in their political communities, this suggests that even legitimatestates do not necessarily have the right to bar foreigners from visiting for a duly limited period… Ifso, then the arguments … offered in this article would leave much more room for freedom ofmovement 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 indefinitelyin some place without the permission of the host political community (136–7).

3.2. ASSOCIATIVE OWNERSHIP

Ryan Pevnick shares Wellman’s conviction that the state’s right to control immigration isconnected in some way to the right to self-determination, but disagrees with the routethat Wellman takes from there: ‘there is no obvious sense in which citizens, born intomembership, can be said to be freely associating with one another. It is a mistake todefend immigration restrictions by reference to the citizenry’s claims of freedom of associ-ation 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 toself-determination (given that membership of the state is usually nonvoluntary) and howthis is related to the state’s right to control immigration. According to Pevnick, citizenshave rights of ownership over their ‘collective accomplishments’, notably their politicalinstitutions. The citizens’ rights of ownership comprise rights to decide which directionthe institutions will pursue, and to decide who will make these sorts of decisions in thefuture—a right to self-determination (33). Thus, citizens are entitled to pass on therunning of the institutions to their own descendants (37–8):

[T]he construction of state institutions is a historical project that extends across generationsand into which individuals are born… [T]he value of membership in a state is very largely aresult of the labor and investment of the community. The citizenry raises resources throughtaxation and invests those resources in valuable public goods: basic infrastructure, defense, theestablishment 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 mem-bers (38).

Pevnick’s case draws on familiar arguments about the connection between labour andownership. He quotes the following passage by Lawrence Becker:

When labor is (1) beyond what is required, morally, that one do for others; (2) produces some-thing which would not have existed except for it; and (3) its product is something which otherslose nothing by being excluded from; then (4) it is not wrong for producers to exclude othersfrom the possession, use, etc. of the fruits of their labors… (Becker, qted in Pevnick 34,author’s emphasis).



Because of their ownership claims vis-a-vis state institutions, citizens are ‘in a position tolegitimately deny membership to some outsiders’ (53). Importantly, the associative own-ership argument, Pevnick suggests, only supports the right to exclude those who want toenter 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 toadmit those who seek territorial access just for the sake of territorial access’ (60). Thereare also limits to the legitimate claims of associate owners. Pevnick contends that associa-tive owners are not permitted to exclude, for example, the children of ‘disliked minori-ties’, 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 ofoutsiders 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 betweenimmigration control and self-determination focus on cultural-nationalist claims, from aso-called ‘liberal nationalist’ position. There are many components to liberal nationalistarguments about immigration, but I will concentrate on the basic case relating to nationalself-determination. Liberal nationalists maintain that one of the legitimate roles of themodern (nation) state is to protect its distinctive national culture (Miller [a] 85, Miller [d]375). The national culture (‘a set of overlapping cultural characteristics—beliefs, 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 choicesabout how to live can be made’ (Miller [a] 85–6). Inevitably, fellow nationals have aninterest in the character and maintenance of their national culture. While national culturesnecessarily evolve and adapt over time, in response to internal transformations, migration,global influences, and so forth, so there is no question of avoiding change (on this point,see Scheffler), liberal nationalists tend to be particularly concerned about the pace ofchange, and primarily the state’s capacity to integrate new arrivals:

[I]mmigration might pose a problem… where the rate of immigration is so high that there isno time for a process of mutual adjustment to occur… In such cases the education system andother 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 con-trol over the maintenance of the national culture, which will require some control over thepace 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 toexplore here, but in all of the three cases we can clearly see the appeal of the differentdefences based on the claims of collective self-determination. The direction that the statetakes on different policy fronts matters deeply to its members, and (in a democracy) thatdirection will depend on the composition of its membership. In order to control mem-bership, states must have some control over immigration.

4. Challenges

Do these arguments provide sufficient support for the claim that the state has a right toexclude would-be immigrants? In this section I will outline three key challenges that eachposition must meet in order to show that they provide a thorough-going defence of theright to exclude.



4.1. TERRITORY

A first challenge for arguments which defend the state’s right to exclude with reference tothe collective right to self-determination is to connect the right to exclude prospectivemembers from the self-determining community and the right to exclude outsiders from thestate’s territory. As I pointed out earlier, the link is usually made by maintaining that long-term residents, in a democracy, eventually must be granted access to the rights of citizen-ship, which means that controlling access to membership necessarily means controllingaccess to long-term residence. But even if you agree that long-term residents should havethe option of becoming citizens, the self-determination argument is not sufficient to sup-port a right to exclude those who are not prospective long-term residents. This in itself isnot necessarily a problem for these positions. Wellman and Pevnick simply argue thatshort-term visitors should be at liberty to enter the state, for limited periods. However, thisthrows up a further set of complex questions: what exactly constitutes a ‘short-term’ stay?A few months? A year? Up to five years? How long a stay is long enough to trigger inclu-sionary claims? Which sorts of rights and obligations do short-term visitors have while resi-dent in the state? Can the state forcibly evict them once that period ends? On whatgrounds? What if they require life-saving medical treatment? What if they form familialattachments? The philosophers who take this position have many questions still to answer.

Moreover, there remains the deeper issue of what exactly connects the relevant self-determining community to the relevant territory, such that the state representing that com-munity is entitled to have this level of control over access to the particular territory.4 Onemight argue that states as we know them are territorial, requiring control over a particularterritory in order to function properly as states, and so the various arguments that count infavour of having functioning states and which legitimise the connection between a particu-lar set of people and their state, also count in favour of having states with control over terri-tory 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 isnot sufficient to justify the territorial exclusion of short-term visitors, it is enough to justifythe territorial exclusion of prospective long-term residents, i.e. potential members.

In the first place, you might wonder whether the straightforward argument that statesrequire control over a specific territory, and that the people who live in that territory arerepresented by that state, is sufficient to show that legitimate states are entitled to controlaccess 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 questionsabout the history of injustice that underlies all existing state borders, but also with com-plex philosophical issues about the legitimate appropriation of land. Pevnick’s argument,for example, is founded upon the assumption that we should conceive of the earth as ini-tially unowned, and essentially up for grabs. But if we replace that assumption with theconviction that we are all, in some sense, common owners of the earth, then the subse-quent arguments about legitimate appropriation are likely to be different, and this, inturn, will have different implications for discussions about the state’s right to excludewould-be immigrants from the territory over which the state claims jurisdiction (see forexample Blake and Risse).

4.2. COMPETING CLAIMS

The second challenge faced by each attempt to defend the state’s right to exclude (as withany defence of a right)5 is to indicate why the state’s interests in exclusion outweigh the



claims of would-be immigrants to be admitted to the territory and ⁄or membership, suchthat it can be said to have a general right to exclude. Each of the arguments about self-determination that I have outlined go some way to showing why the state’s control overimmigration is usually important to the state and its members, but we also know thatwould-be immigrants typically have significant interests in being admitted. The conven-tional move here is to argue that the state’s ⁄ citizens’ claims to exclude would-be immi-grants are weakest and even may be defeated where the would-be immigrants in questionhave the strongest claims to be admitted, as in the case of those fleeing for their lives andseeking sanctuary. And so if the state has a general right to exclude, either that right doesnot extend to excluding refugees, for example, or at times may be defeated by the com-peting rights of refugees, in line with a ‘principle of rescue or charity’ (Pevnick 12).6 Thisis a move familiar from debates about property rights—even if my bundle of propertyrights in relation to my house ordinarily includes the right to exclude outsiders from it, Imay not be entitled to close my door to someone fleeing from an attacker. Furthermore,as Walzer highlights, nation states may recognise special obligations to admit would-beimmigrants (especially those in need) who have some historical, national connection tothe state (Walzer 42).

Perhaps you are inclined to think that this answers the challenge: the state’s interests incontrolling immigration, connected as they are to the claims of self-determination, are suf-ficient to outweigh those of the average would-be immigrant, but not necessarily the inter-ests of those in a desperate situation. Yet note that the interests of the average would-beimmigrant are not to be dismissed lightly. Immigrating is a very difficult, costly business,usually involving social and cultural upheaval, leaving family and friends, learning newrules, languages, mores. Most people do not do it. We must assume that those who do ithave good reasons for taking on the various challenges (see Fine [a] 348).

In response, you might reply with examples regarding the rights of voluntary associa-tions (as Wellman does). Susan may have shown you that she really wants to join yourchess 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 ofthe state as an institution. For one thing, states are everywhere. We all find ourselves inthe jurisdiction of one or other of them. We need to live in one, somewhere. More tothe point, in this world, if we find ourselves without membership in one or other ofthem, we are in serious trouble (Arendt). But we cannot just get together with ourexcluded friends and set up one of our own (Fine [a], Cole, Lane). So states’ rights toexclude are far more significant in people’s lives than the rights of voluntary associationsto exclude.

Again, in response, you might think that this is not a problem, as long as people havesomewhere to go, some state which is willing to grant them membership. But states arenot interchangeable: ‘the interests in living in state A are not always interchangeable withthe interests in living in state B or state C. Prohibiting outsiders from settling in andbecoming members of a particular state hinders or prevents their pursuit of all the manyfamilial, social, religious, cultural, political, or economic interests’ (Fine [a] 348).

In other words, we are back to the original acknowledgement that there are weightyclaims on both sides, and we cannot simply come down on the side of the state withoutexplaining exactly why the state’s claims trump those of the would-be immigrants, orwithout thinking carefully about the limits to the state’s legitimate claims regarding self-determination. As Pevnick himself makes clear, there is a range of limits that weacknowledge 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),



states might claim that the collective right to self-determination entitles them to regulateand limit citizens’ rights to have children, or citizens’ rights to leave the country and set-tle elsewhere, in order that states may maintain control over the future shape and charac-ter of the citizen body (Fine [a] 353). If you wish to reject the state’s claim to controlthe future shape and character of the citizen body by these methods, you already acceptthat the state’s interest in controlling the character and composition of the citizenry doesnot trump a range of other important interests.

4.3. THE ‘SELF’ IN SELF-DETERMINATION

This leads us on to the third, and potentially most significant, challenge for argumentsthat defend the state’s right to exclude would-be immigrants, in connection with the col-lective right to self-determination. These arguments, as we have seen, all rest on the basicclaim that the collective who is to be self-determining has an interest in maintaining con-trol over the character of that self, hence in maintaining control over access to member-ship of the self-determining community. The obvious question, then, is how to identifythe members of the self-determining community who are supposedly entitled to maintainthat control.

Perhaps the nationalist case has the easiest job: it can equate the self-determining com-munity with the nation. However, that is not as straightforward as it may appear, sincewe are looking for a defence of the state’s right to exclude, and the boundaries of a par-ticular state do not always map onto the boundaries of a particular national group. Manystates are multinational, many national groups cross over the borders of states, and manycitizens of many states do not identify with the majority national group in that state. So,in fact, the nationalist has the often difficult task of showing how precisely to connectthe state’s right to exclude with arguments based on claims about nationality and nation-hood (for further discussion, see Fine [c], chapter 3).

Pevnick’s argument about ‘associative ownership’ also faces important challenges onthis front. If the citizens’ collective right to self-determination is defended by means of anargument about their ‘labour’ which brings the state’s institutions into existence andmaintains them across time, then those who live within the borders but are not ‘contrib-utors’ (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 asmembers (Pevnick 65-66). Furthermore, there will be a significant grey area wherenotional outsiders make fundamental contributions to the maintenance of one state’s insti-tutions but nonetheless do not seem, on Pevnick’s account, to qualify as members of thestate’s self-determining community. The most obvious examples might include the essen-tial contribution that some countries make to the rebuilding of other states in post-conflict situations, or after major national disasters, or even in continual, substantial dona-tions of foreign or military aid.7 There will also be tough questions about the potentialownership-membership claims of former imperial and colonial powers, particularly wherethose powers can point to their historical contribution to basic infrastructure, the educa-tion system and so forth. The associative ownership account not only appears to leaveout some obvious candidates for membership, but potentially and inadvertently includessome less obvious candidates.

Yet the difficult question of how to distinguish between rightful members and non-members, insiders and outsiders, is brought into view even more clearly when we con-sider that the arguments under consideration tend to maintain that democratic states arenot entitled to exclude long-term residents from access to membership, and on specifi-



cally democratic grounds. The underlying claim is, as Walzer puts it, that those who aresubject to the state’s authority ‘must be given a say, and ultimately an equal say, in whatthat authority does’ (Walzer 61). However, once we begin to think about what it is tobe subject to the state’s authority, and so what exactly triggers the demand to be given asay, or an equal say, we might not be convinced that those who are subject to the state’sauthority are only those within the state’s territorial borders. Thus we come to one ofthe more lively debates in contemporary political philosophy, which centres around thequestion of how we identify the members of the group ⁄entity (people ⁄demos) supposedlyentitled to make the decisions in a democracy (for recent interventions in the debate seeGoodin, Abizadeh [a, b], Miller [e, f], Baubock [b], Owen [a], Fine [b, c]). This questionis absolutely pivotal for debates about the state’s right to exclude; even when we takeseriously the claim that those who must live by a set of a rules should be entitled to par-ticipate in the making of those rules, we must notice that immigration rules are alsodesigned to apply to would-be immigrants and immigrants. Why should states be entitledto impose those rules on would-be immigrants and immigrants without giving them a sayin the making of the rules? Do would-be immigrants actually have some kind of claim toparticipate in the making of those rules? As soon as we delve more deeply into the impli-cations of our basic democratic commitments, including the commitment that those whoare subject to the state’s authority should have a say in what that authority does, we openup a can of worms for arguments that base the state’s right to exclude would-be immi-grants on the commitment to collective self-determination.

5. Conclusion

Political philosophers have been slow to engage with the full range of difficult philosoph-ical questions that arise in the context of the ethics of immigration. Now that the subjectwell and truly has arrived on the scene, the debate looks set to rage on and on for theforeseeable future. We cannot take anything for granted here: even something as seem-ingly obvious and familiar to our political landscape as the state’s right to exclude would-be immigrants is, when subjected to the proper philosophical treatment, not that obviousat all.

Acknowledgements

The author would like to thank Duncan Bell, Tony Laden, and Andrea Sangiovanni forhelpful comments and suggestions.

Biography

Sarah Fine is Lecturer in Philosophy at King’s College London. She specialises in issuesrelating to migration and citizenship. Her monograph, Immigration and the Right toExclude, is forthcoming with Oxford University Press. The book critically examines thedominant view that states enjoy a moral right to exclude would-be immigrants. She isco-editing a book (with Dr Lea Ypi), Migration in Political Theory: the Ethics of Movementand Membership, also forthcoming with Oxford University Press. Sarah Fine was an under-graduate student at the University of Cambridge. She received her MPhil and DPhil fromthe University of Oxford. Before joining the Department of Philosophy at King’s, shewas a Research Fellow at Corpus Christi College, Cambridge.



Notes

* Correspondence: Sarah Fine, Lecturer in Philosophy, Room 902, Philosophy Building, King’s College London,Strand, London WC2R 2LS, UK. Email: [email protected].

1 For the most part, at least, perhaps with some qualifications relating to the entry and treatment of those seekingasylum.2 In exceptional cases, democratic states may introduce limited, temporary barriers to internal freedom of move-ment, for example during times of natural disaster or war. Needless to say, not all self-proclaimed democracies actu-ally grant their own citizens the right to move and settle freely within their own borders, and many stood in theway 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 theidentity of the community in question and its attachment to a specific territory. Nonetheless it still must make acase for the state’s claim to control access to the specific territory.5 There is not space to elaborate on the various different ways of characterising rights in general or the right toexclude in particular, and how these relate to other rights and claims, but for an informative discussion ofWellman’s 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 mayhave a variety of obligations to those in need, as long as they act on those obligations they are not required toadmit outsiders (even those fleeing 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 con-sider the reverse situation, where one state or group of states deliberately attempts to stifle the ability of anotherstate to maintain its institutions over time, e.g. USA and Cuba.

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