Do states have a legitimate basis to say no to immigration?

Christopher Wellman suggests that the reason why sates can refuse immigrants is based on a presumption that states have a moral justification in excluding potential immigrants because states have a right to self-determination. This self-determination is needed so that states can protect  individual’s right to freedom of association. The question to ask then, is can this presumption can be justified?

If the presumption is invalid, it may be the case that states do have an obligation to accept immigrants, and this would have a significant impact upon the world as we know it.

I will focus on the issues concerning the analogies between the individual and the state that Wellman provides, with the aim to show that Wellman’s characterisation of freedom of association at an individual level does not translate to that of the state itself. Wellman holds that the right to self-determination of a state is what enables states to exclude any would be immigrant, because a state’s right to self-determination is what protects individual’s rights to freedom of association. The key contention then, is do open immigration policies upset this right to self-determination?

In Spheres of Justice, Michael Walzer proposes that states have a right to self-determination, as this is the way in which ‘communities of character’ are constructed and maintained. He defines a ‘community of character’ as historically stable communities that enable men and women to live in an on-going special commitment to one another. Walzer is concerned that losing the right to exclude would mean losing this right to self-determination which would be an injustice because it would upset our ability to shape our own lives and create “communities of character”. The general shape of the self-determination argument is: states have a right to self-determination and part of the right to self-determination is to decide how your ‘self’ is constructed. The crux of the argument being that part of the right to self-determination is the ability to include and also exclude those who are not conducive to your idea of the ‘self’ of the community (Sarah Fine, 2010, p258).

My initial question is how does control of the membership justify control of people moving into your territory? For sake of argument, it is possible to accept that the UK has a right to set the terms of what membership to the UK is, but does does mean it automatically follows that this gives the UK the right to stop immigrants from entering the territory of the UK to settle at all (Fine, 2013, p259). Equally, it works in the reverse, you can be a British citizen but not be in the territory of the UK – thus it seems territory is  a secondary quality.

Potentially individuals could come and settle within the borders of the UK, without any intentions to become members of the UK (holiday makers, business people, international students etc). The response to this argument is that by virtue of the fact that long-term residents must be/can be given citizenship eventually (by liberal, democratic states) hence becoming full members of the community, it follows that states have the right to control immigration of those would-be immigrants. Nevertheless, this reveals a limit on the rights of states to control immigration, because it suggests that states have no right to control immigration of short term residents.

If I had to respond, I would argue that the community is wedded to the territory, drawing upon on Aldo Leopold’s Land Ethic. Leopold says: “the land ethic simply enlarges the boundaries of the community to include soils, water, plants and animals, or collectively: the land” (Leopold, 1949, p202). If it is possible to show that the territory a community lives on is part of the community itself, it follows that as the community and the territory are one and the same, in using the territory, you are participating in the community. Therefore states have immigration control over those short-term residents who are on the territory on this basis, even if they do not have the intention to be citizens conventionally conceived by liberal democracies.

The above has been a discussion of membership/territory and self-determination as the basis for states to control immigration, I will now turn to Christopher Wellman’s characterisation of the right to self-determination.

In “Immigration and Freedom of Association” Wellman defends the state’s right to control immigration by drawing upon the argument of self-determination and freedom of association. It is important to note that Wellman is focussing on the presumptive right of a state’s ability to control immigration is based upon the collective right to self-determination. Therefore conceding that competing claims (i.e. human rights/asylum seekers) have the potential to place limitations upon a state’s right to exclude. He deals with this qualm by suggesting states can limit the chance of competing claims (i.e. the current migrant crisis) via ‘exporting justice’. Doing so would limit the reasons for why people need to leave their home countries, as such for Wellman, states will not have to automatically open their borders in response to these competing rights claims. At this point, I would suggest that “exporting justice” would in turn violate another state’s right to self-determination – such as “forcing democracy”. However, that said, this for Wellman answers the competing claims objection. I also consider that his remove the push style argument as a way to combat migration is not appropriate for modern day life and potentially “exporting justice” leads you down an unpleasant road.

Wellman begins his argument by saying that the presumptive right of a state to control immigration rests upon the right of freedom of association. He does this for two reasons. Firstly, freedom of association is considered to be highly important. Secondly, part of the right to freedom of association is that we have the ability to not associate with people and also to disassociate (Wellman, 2008, pp109-110). He evidences these points by pointing to the institutions of marriage and religion. He suggests that it is now a given that people have the choice over what religion they follow and who they want to marry, he claims ‘virtually everyone agrees that we are entitled to’ this freedom (ironically it may be the case that this competing claim might not trump a states right to refuse a person fleeing a forced marriage).

I am concerned with basing a moral justification on what the popular consensus is, further it seems that just because people agree, does not mean that what they all agree on is justified. However, his justification goes beyond popularity of the right: he holds that we have the right to self-determination over these things because marriage and religion are ‘self-regarding’ affairs and are personal to our identities. The second aspect is that freedom of association also involves the freedom to not associate and even to disassociate. The validity of this power to exclude is needed to ensure it is their or your association.

To illustrate, he presents the idea of a golf club. The members of the golf club can change, so the current members should have a say over who may or may not join the club, as members are what creates the identity of the ‘self’ of the group. Wellman also illustrates this with the case of marriage; he notes that true freedom of association in terms of matrimony is more than just the ability to get married, but to choose the person who you do want to marry. Equally, you also have the right to not get married at all and remain single if you so wish.

With the right to self-determination of the individual established, Wellman claims that we can see the justification for a state to control immigration by analogy. In the same way I have the right to not get married, the state has a right to decide what would-be immigrants, if any, it wishes to invite into its political community. Wellman’s defence of immigration control is more convincing than Walzer’s because he is attempting to show how the individual right of freedom of association feeds into the collective right to self-determination. It seems that according to Wellman’s position, there is less of a requirement to define what a ‘community of character’ is. He has the easier task of saying that self-determination of the state is justified in virtue of it being a reflection of an individual’s freedom of association, he notes himself that his defending of freedom of association “makes no mention of a political community’s distinctive character”. If this is successful, then it follows states have a right to control admission and exclusion without having to draw on difficult concepts of culture or communities.

With the strongest manifestation of the self-determination argument established, I am now in a position to critique Wellman’s case. Wellman acknowledges that there are two main difficulties with the idea of inferring state rights to freedom of association from an individual’s. The first issue is that it may be that only individuals can have a right to self-determination. The second issue is that if it is possible for nations to have a collective right to self-determination, it is possible that this collective right can easily be overridden by other competing claims from potential immigrants.

Firstly, Wellman points to worries associated in giving groups the right to self-determination, namely the likelihood of discrimination. He gives the example of the Boy Scouts of America excluding people. In response, he says it is not a concern for the presumptive argument because it is not criticising group self-determination itself, rather what certain groups do with it. Consequently, the significant worry comes from the potential dis-analogies between group memberships and membership to a state. If these analogies do not work, then the concerns of “the non-voluntary nature of political states”  may show that it is in fact only individuals who can claim to have a right to freedom of association.

Wellman’s argument to shows we have to respect group self-determination as an individual’s right to freedom of association then it is a mistake to base a defence on immigration controls upon a citizen’s claim to freedom of association when the initial association is not entered into voluntarily. Is it that we are in fact “conscripted” into a state. Therefore, the autonomy of the state cannot be justified by the autonomy of its individual members because citizens mostly are in a non-voluntary relationship with their state. Building on Rousseau’s construction of the social contract as the only way to have a legitimate political infrastructure is to base it on the autonomous choice of individual agents. If the state is not based upon individuals autonomously consenting to be part of that group it is disingenuous to base any immigration controls upon autonomy of the state in virtue of this fact. Therefore, “because majority rule does not in the case of modern states lie on a bed of unanimity, there is no reason to trust that respecting the autonomy of states amounts to respecting the autonomy of individual members” (Pevnick, 2011, pp29-30).

If for example, I was kidnapped and then brainwashed into becoming a member of ‘Group X’, if ‘Group X’ is given autonomous rights out of respect for the individual member’s right to freedom of association, it would be erroneous because I have not chosen to freely associate with ‘Group X’. This is the same with the citizen body, because citizens are not freely associating with other citizens of their state. The implications of this argument is that if self-determination of a state is allegedly based upon individual freedom of association within that state – if this is not the case – the state’s autonomous right is not a legitimate because it is not a true reflection of individual freedom of association and self-determination.

Wellman does not directly deal with this objection in Immigration and Freedom of Association, rather he points to the unpalatable outcomes if we do not respect states collective rights to autonomy/self-determination. I do not consider this to be a satisfactory defence as it ignores the thrust of the above objection. A defence that Wellman could consider would be as follows: as the objection rests on the idea that being part of a nation state is not voluntary, the way to get around this objection would be to argue that membership to the state is in fact a voluntary basis, for example a Lockean account of tacit consent may be enough to get around this, which holds that if you are in the dominion of the state, that state has your tacit consent (Locke, 1698). Therefore, if one subscribes to Locke and tacit consent, we are in a voluntary relationship with the state.

The objection to the self-determination view is two-fold: firstly it revolves around the issue of how to identify the group that requires the right to self-determination in the first place. We need to be able to point to the group in question that needs to be self-determining. The next issue is to work out if the group in question is deserving of or requires these rights. In respect to the first point, we can look for a group that has achieved more than a minimum level of unanimity and identity and deserves rights in this respect; a second way is to suggest that a group can embody some of the attributes of personhood that would necessitate rights and; the third ‘goods based approach’, which aims to show that groups produce goods that are worthy of protection via giving that group in itself rights.

The first definition is hard to find within the nation state due to the difference in cultures, national territories, boundaries and the citizens themselves; it is hard to provide this required standard of unanimity and identity. Secondly, it seems that the state itself does not have autonomy; rather it is the institutions within the state, Parliament for example.

When we turn to the argument to protect the goods that the group produces, it again seems difficult to say that it is the state itself that produces the goods, rather it is the groups of citizens within the state that produce the goods which may or may not require protection via group rights. Wellman’s position holds that the state is an aggregate of individuals who have the right to freedom of association, and the state has a collective right to self-determination in order to protect these individual rights. It does not seem that he is defending group rights by these methods; rather Wellman is saying that the right of self-determination is the vehicle to protect individual rights. As such, I conclude there is no group right for the state in terms of self-determination.

This leads to the second fold of my objection to the self-determination position.

If there is no group right to self-determination, then it must be that there is only an individual right, and that this results in a contradiction: Wellman maintains that a state’s self-determination will preserve individual rights of freedom of association and allows them to carry out their self-regarding actions. However, when this is scaled up to the international level, I think a contradiction arises because it seems that the state will limit immigration and therefore prevent citizens from freely choosing to associate or not associate with immigrants, and it also prevents those would be immigrants from freely associating. As such, it seems that when basing a state’s right to self-determination upon individual right to freedom of association it results in a violation of freedom of association of those living in the state and those who want to enter into your state.

Therefore we have a paradoxical conclusion in which the method to safeguard our rights actually contributes to inhibiting them.

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