Beyond Borders: Towards A Right To International Movement

Beyond Borders

Towards A Right To International Movement

By Professor Phil Cole (University of West England)

January 6, 2016          Picture: CAFOD, Ben White/Flickr.

This article is part of The Critique’s And Who Is My Neighbour? Exclusive

My goal in this essay is to set out the grounds for a human right to freedom of international movement. In my past work I’ve argued that there are no convincing arguments why there should not be such a right, but here I want to explore the possible arguments for establishing that there should be one. The negative case for the right – that state control over cross-border movement has no moral basis — strikes me as too fragile. And it may be that the positive case for the right leads us to a stronger conception of its content: simply opening borders may not be an adequate foundation for a right to international mobility.[i] And so it important to move beyond the negative critique of exclusive migration regimes and to set out the positive case for a right to freedom of international movement, a right which is so basic that it over-rides, except in extremity, a state’s right to prevent people from crossing its border.

At present, the movement of people across national borders is seen as “an anomaly to be exceptionally tolerated”.[ii] This strikes me, intuitively, as itself an extraordinary anomaly, given the ease with which we travel over all other kinds of boundaries, and the extent to which we take this ease for granted (and we should remember that the world is criss-crossed with all kinds of ‘territorial’ boundaries, which designate provinces, regions, counties, etc. – national borders are exceptional rather than the rule in how we think about ‘territorial’ boundaries). However, a positive case must be made for this right, as it has been for other basic human rights. That case, I believe, has to be made in the context of an egalitarian theory of global justice, and so cannot simply be a libertarian argument which assumes the priority of individual liberty over collective concerns, nor simply a human rights-based approach which assumes that human rights act as trumps in all cases. Rather, this particular right has to be embedded in a wider perspective of what global justice requires, connecting theories of rights, justice, and the ethics of migration. I conclude that the right to freedom of international movement must give people the power to resist global domination and exploitation, giving them control over when, where, why and how they migrate, rather than the opening of international borders alone.

However, while my overall aim is to sketch out the arguments for the right, it is still useful to start by examining the main arguments against it. David Miller, for example, is sceptical, arguing that the value of movement is not strong enough to ground a universal human right. The presumption behind arguments for the right, he says, is that “people should be free to choose where to live unless there are strong reasons for restricting their choice.”[iii] He challenges this presumption:

“…there is always some value in people having more options to choose between, in this case options as to where to live, but we usually draw a line between basic freedoms that people should have as a matter of right and what we might call bare freedoms that do not warrant that kind of protection.”[iv]

Why suppose this particular freedom has the significance required to turn it into a basic freedom? Basic rights, argues Miller, are justified by the vital interests they protect, and so the question is whether freedom of movement protects any vital interests. He concedes that it does, but only within a limited scope. It is valuable to be able to “to move freely in physical space”, and wider freedom of movement begins to take on instrumental value:

“if I cannot move about over a fairly wide area, it may be impossible for me to find a job, to practice my religion, or to find a suitable marriage partner. Since these all qualify as vital interests, it is fairly clear that freedom of movement qualifies as a basic human right.”[v]

But then we have to ask about the physical extent of such a right: “…how much of the earth’s surface must I be able to move to in order to say that I enjoy it”?[vi] How far do I need to be able to move for my vital interests to be safeguarded?

Miller believes that:

“…liberal societies in general offer their members sufficient freedom of movement to protect the interests that the human right to free movement is intended to protect, even though the extent of free movement is very far from absolute. So how could one attempt to show that the right in question must include the right to move to some other country and settle there? What vital interest requires the right to be interpreted in such an extensive way?”[vii]

Miller argues that:

“What a person can legitimately demand access to is an adequate range of options to choose between – a reasonable choice of occupation, religion, cultural activities, marriage partners, and so forth. Adequacy here is defined in terms of generic human interests rather than in terms of the interests of any one person in particular…”.

Given that they are ‘decent’ states,

“all contemporary states are able to provide such an adequate range internally. So although people certainly have an interest in being able to migrate internationally, they do not have a basic interest of the kind that would be required to ground a human right.”[viii]

For Miller, the question is whether someone – even where they to seek to leave a relatively poor society to enter a relatively rich one — “has an adequate range of alternatives in his society of origin.” It may be that they have a range of options that enable them to have “a minimally decent life,” and a sufficient range of important choices that make them the author of their own life.

“It is an illusion to think … that this is only possible if someone has the extraordinary range of choices that modern liberal societies can offer.”[ix]

In meeting this challenge, I believe the first task is to develop a particular conception of human rights. What we might call the ‘traditional’ approach to human rights within liberal political theory tends to be both minimalist and what we might describe as ‘sufficientarian’. Human rights are seen as a framework for ensuring that people’s living standards do not fall below a certain level.[x] Rights are justified in isolation from each other, and the level of provision is that which is sufficient to meet the interest the right seeks to protect. This approach, by itself, limits the content of human rights to a quite basic level. However, the traditional approach tends to go beyond this level by linking human rights together, recognising that they contribute to each other, and their content must go beyond the basic provision in order to make that contribution. But still, this view tends to constrain the content of human rights to the ‘minimally decent’ life.

CAFOD, Ben White/Flickr
CAFOD, Ben White/Flickr

My suggestion is that we base the human rights framework upon a conception of human agency, with the idea of autonomy lying at the centre of that agency. Being a human agent consists of having a life story that is recognisably human, and this, according to our approach, will include the elements we take to constitute, not only a minimally decent life, but human flourishing: this means we include not only physical and economic conditions, but also social and political ones. The social and political conditions are essential, because this conception of human agency does not only consist of having a recognisably human life story, but also possessing the power to be its author, to have a say over its content, and control over its content as it goes along. The human rights framework must aim to ensure the conditions people need to become empowered to be authors of their own life stories. Of course, there are limits to which anybody is the author of their own lives, as there are always limits to autonomy, but this approach still, I think, takes us beyond seeing human rights as basic protections, towards something more dynamic and demanding. It is a holistic approach, which sees rights as connected within a network, as a process of building human agency. If we place the right to mobility in this context, we see it as an essential component of human agency, such that it is a crucial part of people’s ability to become free and equal choosers, doers and participators in their communities.

One indication that the right to mobility is an essential component of the free agency of persons is the way it goes hand-in-hand with citizenship in liberal democratic states. The right to free movement within a state is recognised as a fundamental human right: Article 13 of the Universal Declaration of Human Rights states that everyone has the right to freedom of movement and residence within the territory of each state. And the European Union shows us the strength the connection between citizenship and freedom of movement: the right to mobility is seen as an essential component of European citizenship, and national borders can place no obstacle to that freedom within the EU. Non-citizens of EU states, of course, do not have the same freedom, which again shows the strength of the connection between citizenship and freedom of mobility.

However, an objection here might be that all we have shown is that freedom of movement is an essential component of citizenship. Beyond the example of the European Union, the only model of citizenship we have is that of the nation-state, and so we lack any argument that can act as the basis of an extension of the right to free movement to the international level. A reply to this objection takes us further in the direction of radically revising our political theory. Some have argued that we need to consider forms of membership that transcend nation-states, such as membership of the international political community. This is a radical idea, and as Antoine Pécoud and Paul de Guchteneire note this kind of international mobility is a challenge for democracy: “…one needs to find ways to conciliate freedom of movement with the functioning of democratic institutions.” But they do not believe this places an insoluble obstacle in the way of establishing freedom of movement.

“A creative solution to these issues is to unpack citizenship and consider that its different components (political, civil, social, family and cultural rights notably) can be distributed in a differentiated way. This approach avoids the binary logic of exclusion, in which people have either all rights or none.”[xi]

Ryan Pevnick also argues that the rights and duties of citizenship are not an all-or-nothing bundle – they can be, and often are, disaggregated.[xii]

Harold Kleindschmidt thinks a more radical step would be to unpack the nation-state itself. He cites the work of Yasmin Soysal, who has argued for a deterritorialised ‘personhood’ as the basis for the allocation of citizenship rights rather than nationality.[xiii] This is a call for a ‘postnational’ model of citizenship that

“confers upon every person the right and duty of participation in the authority structures and public life of a polity, regardless of their historical or cultural ties to that community.”[xiv]

This is a cosmopolitan ideal of citizenship, which captures Robert Fine’s principle that “human beings can belong anywhere…”.[xv]

This is to look towards an idea of membership of a global political community, such that to be a free and equal member of that global community, to be an equally powerful participant within it, is deeply connected with one’s freedom of mobility throughout it. This is admittedly a sketchy, if not flimsy, vision. But as Duncan Ivison observes:

“I take it that one of the great projects of twenty-first-century political thought is to develop new models of transnational and global political order that can provide not only effective security and welfare provision for citizens, but that can also become the object of people’s reasoned loyalty; to construct, in other words, new forms of transnational democracy.”[xvi]

This is certainly an enormously ambitious vision, and not one I can undertake here. But I do want to approach it through our conception of human rights and agency. If the object is to enable people to become free and equal choosers, doers and participators in their communities, we have to recognise that people belong to communities at different levels, not only their national community. They are members of more local communities, and of the international community, to the extent that there is one. They are, therefore, not only local and national agents, but also international agents. If the right to mobility is essential to human agency, then the right to international movement is essential to international agency. But why suppose there is any such thing as international agency? Why should we think that there has to be an international dimension to human agency as such?

We know that some people are, as a matter of fact, international agents, leading extremely mobile lives of which they are the authors, but this elite does not provide us with a model for a human rights framework. At the other end of the scale, there is another group of international ‘agents’, who lead highly mobile lives of which they are not the authors, or only very partial authors. They are caught up in international flows of labour demand and have little or no control over when and where they go, or why and even how. If the goal of human rights is to ground the power of authorship over our own lives, we can see that a right to freedom of international movement would be one component of a human rights framework that gives people control over when and where they go and for what reason. Simply opening borders is not a sufficient condition for a human right to free movement.

But does this give us any reason to suppose that there is a vital interest in international agency that can ground the right to mobility? We have already seen that David Miller believes national membership with its right to national free movement is sufficient. To get beyond this objection and towards the idea of international agency, we would have to argue that people do have strong international interests as well as national ones, such that national citizenship will not necessarily provide them with the resources they need to meet those interests. I think we can do this if we recognise that international constraints on freedom of movement serve to create conditions of oppression, domination and inequality, and that border controls, as Chandran Kukathas points out, function mainly to prevent movement of the global poor.[xvii] We need to think about the right of migration within this context of power and domination.

The reality is that we are not – or should not be – discussing the rights of a particular liberal state to control movement across its borders. We are talking about a global migration regime, through which a block of powerful liberal capitalist states seek to prevent access for the poor and unskilled while at the same time exploiting their labour at cheap costs where they happen to be; and also actively seeking out those it considers economically valuable from the poor world to meet their own needs, creating more difficulties for ‘sending’ states in terms of the ‘brain drain’ [see Straehle’s discussion of the brain drain here]; and maintaining more or less free movement between themselves as a block. The European Union explicitly acts in this way, with, as we’ve seen, free movement for citizens of EU states, and immigration regimes which seek to recruit the skilled and prosperous from the developing world, while presenting a fortress of fences and detention camps for the poor and unskilled. This migration regime plays a role not only in maintaining extreme inequalities of wealth across the globe, but also extreme inequalities of global power.

“Immigration regimes seek to recruit the skilled and prosperous from the developing world, while presenting a fortress of fences and detention camps for the poor and unskilled”

Of course, many liberal theorists recognise that the claim to freedom of movement is powerful in a world containing extremes of global poverty. If a liberal state refuses to address this international problem in terms of aid, then their claim to close their borders to poor migrants loses moral legitimacy. However, if they are active in addressing world poverty through the transfer of resources to the poor where they happen to be, then migrants from that part of the world can legitimately be prevented from entering.[xviii] But this approach assumes that the unjust relationship between the political ‘inside’ (the developed world) and the political ‘outside’ (the developing world) is one that can be corrected through this kind of limited economic transfer, without any alteration of the power structures of domination and exploitation that have been sedimented through the historical processes of colonialism and post-colonialism. In reality, the issue is not primarily to do with the inequality of the distribution of resources, but the inequality of the relations of power that gives rise to that distribution of resources, and which can be so unequal that they amount to domination.[xix]

“The issue is not primarily to do with the inequality of the distribution of resources, but the inequality of the relations of power that gives rise to that distribution of resources”.

This gives us a powerful argument that people do have an interest in international agency, in that this dimension of their agency is needed in order to resist domination and exploitation across borders. Some may deny that there is any such thing as an international community, but they surely cannot deny that there is a system of global domination and exploitation, to which one powerful remedy would be the establishment of an international community, such that all are entitled to be equally free doers, choosers and participators within that community. There are two reasons for thinking that this leads us to the importance of the right to freedom of international movement. Firstly, we have seen that free and equal membership of a community goes hand-in-hand with the right to freedom of mobility within it, such that any commitment to the idea of an international community brings with it a commitment to freedom of international movement for its members. Secondly, one major means by which the developed world maintains its domination and exploitation of the global poor is through its control of the global migration regime, and so the right to freedom of international movement – which will be the ground, along with other rights, of one’s ability to control when, where, why and how one migrates – is at least part of the answer to that domination and exploitation.

What I have sketched out here, in admittedly little detail, is an enormously ambitious vision, which calls not only for a radical re-visioning of what a just global order would look like, but also a radical re-visioning of the political theory that can help us grasp that order. However, I do not want to suggest that freedom of international movement must wait until this just global order has been achieved. It is an essential element of that order and, as part of it, is something we can move towards now, rather than waiting for transnational democratic institutions to be established. Indeed, I believe there are strong independent moral reasons to move towards greater freedom of international movement, and few good reasons to resist it.[xx] The reason why I have connected that freedom with other aspects of human agency and other human rights is to ensure that open borders do not simply become another way of exploiting the global poor, rather than an element of their empowerment.

One objection to everything I have said in this paper is that it is so far from being politically feasible that it is not worth the work of theorising. This is a powerful criticism, to which I can only say this. I have always understood philosophy as the activity of critically questioning the fundamental assumptions that shape our worldviews. All beliefs and practices have to be open to this philosophical criticism – nothing is out of bounds. And sometimes part of our task as philosophers is to see how far we can go in that questioning. In fact, I see much value in mixed labour, as it were, with some work seeing what we can achieve in the short term with the world as it is, and other work seeing how far we can go. But sometimes there is political value, not just philosophical value, in not allowing our project to be limited by the way the political world is or beliefs about the practical limits to which it can be transformed. I therefore make no philosophical apology for the radical implications of my position. They are radical, but also, I believe, reasonable – sometimes, perhaps more often than people allow, the radical is the reasonable.

But it may be that we are under a moral, not just philosophical, obligation as political theorists to re-think our theoretical frameworks in the ways I’ve suggested. I have pointed out before that much liberal political theory seems to be set in a world where slavery and colonialism never happened, and one free of capitalist domination and exploitation of the global poor. We have seen that what is at stake is not the distribution of global resources but the distribution of power, and specifically here the power to control the global migration regime. The connection with the colonial period and the present is not only that global movements are still shaped by that past, but also that powerful states have sought to control that regime in order to dominate and exploit the less powerful through that period and since. The fact that patterns of movement have changed direction does not change the fact that they are being dominated and controlled in the same way, and if it was morally unacceptable for powerful states to exert such power to exploit others during the colonial period, it is just as unacceptable now.

Onora O’Neill considers the implications of global inequality and domination, and concludes that while they do not justify a world state and a borderless world, they do compel us to consider that there might be a better set of just institutions rather than leaving questions of justice in the hands of individual states:

“A better set of just institutions might be one that is constructed in the light of considering carefully to whom and to what (to movements of people, of goods, of information, of money) any given boundary should be porous. Porosity is endlessly variable and adjustable; different filters can be institutionalized.”[xxi]

This points to the need for multilateral, rather than unilateral, governance of migration, and the need for multilateral institutions to oversee that governance; and if my arguments here have held any force, those multilateral institutions must have a concern for human rights at their core. Arash Abizadeh argues that these institutions must also be democratic, calling for:

“the formation of cosmopolitan democratic institutions that have jurisdiction either to determine entry policy or legitimately to delegate jurisdiction over entry policy to particular states (or other institutions).”[xxii]

This would result in “jointly controlled and porous (not closed) borders.”[xxiii]

The overwhelming evidence is that leaving the right to control migration in the hands of individual states has in the past and the present led to blocks of powerful states dominating and exploiting the rest of the world. O’Neill and Abizadeh identify the need for multilateral democratic institutions to combat that domination. My case has been that those institutions must embody and protect a fundamental human right to freedom of international movement, which itself is part of a framework of rights that empower people to have control over where, why, when and how they migrate.

Footnotes & Reference

[i] The absence of this positive argument from my work was pointed out to me by David Miller.

[ii] Antoine Pécoud and Paul de Guchteneire, “Migration without borders: an investigation into the free movement of people,” Global Migration Perspectives, No 27, April 2005, Global Commission on International Migration, Geneva, Switzerland; p.22.

[iii] David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christophr Heath Wellman (eds.), Contemporary Debates in Applied Ethics (Oxford: Blackwell Publishing, 2005), p. 194.

[iv] Miller, “Immigration: The Case for Limits”, 194.

[v] Miller, “Immigration: The Case for Limits”, 195.

[vi] Miller, “Immigration: The Case for Limits”, 195.

[vii] Miller, “Immigration: The Case for Limits”, 195.

[viii] Miller, “Immigration: The Case for Limits”, 196.

[ix] David Miller, “Why Immigration Controls are not Coercive: a Reply to Arash Abizadeh,” Political Theory, Volume 38, Number 1, 2010, pp.111-120; p. 117.

[x] This is, of course, a valuable and important way of seeing human rights. I’m not claiming this is a mistaken view, but that we may want to think beyond it when envisioning a different global order of justice.

[xi] Pécoud and de Guchteneire, “Migration without borders: an investigation into the free movement of people,” p. 16.

[xii] Ryan Pevnick, “Social Trust and the Ethics of Immigration Policy”, The Journal of Political Philosophy, Volume 17, Number 2, 2009, pp. 146-167, p. 155.

[xiii] Harold Kleinschmidt, “Migration and the Making of Transnational Social Spaces”, (Public address to Australian Centre, University of Melbourne, June 1996), August 24, 2010).p. 13; Yasmin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago and London: Chicago University Press, 1994).

[xiv] Kleinschmidt, “Migration and the Making of Transnational Social Spaces”, p. 13; Soysal, Limits of Citizenship, p. 4.

[xv] Robert Fine, Cosmopolitanism (London and New York: Routledge, 2007), p. x.

Duncan Ivison, Rights (Stocksfield: Acumen, 2008), p. 212.

[xvii] Chandran Kukathas, “The Case for Open Immigration”, s, in Andrew I. Cohen and Christopher Heath Wellman, eds., Contemporary Debates in Applied Ethics (Oxford: Blackwell Publishing, 2005),, p. 213. It is interesting to note how the Poor Laws in England during the 17th century sought to control migration of the poor. The Act “for the better reliefe of the poor” passed in 1662 was “principally concerned with restricting migration, and providing the basis for the exclusion of outsiders from a given parish.”

[xviii] See Christopher Heath Wellman, “Freedom of Association and the Right to Exclude,” in Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford: Oxford University Press, 2011), p. 68. Also see Veit Bader, “The Ethics of Immigration”, Constellations, Volume 12, Number 3, 2005, pp.331-36, p. 344; and David Miller, “Immigration: The Case for Limits”, p. 198.

[xix] For the importance of seeing inequality in terms of domination rather than distribution, see Elizabeth S. Anderson, “What is the point of equality?”,Ethics, 109 (January 1999), pp. 287-337.

[xx] I’ve most recently stated those arguments in Phillip Cole, “Open Borders: An Ethical Defense”, in Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford: Oxford University Press, 2011).

[xxi] Onora O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000), p. 200.

[xxii] Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, Political Theory, Volume 36, Number 1, February 2008, pp. 37-65, p. 48.

[xxiii] Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders”, p. 53.

Phillip Cole
Phillip Cole
Phillip Cole is Senior Lecturer in Politics and International Relations at the University of the West of England, Bristol, and a Visiting Professor in Applied Philosophy with the Social Ethics Research Group, University of South Wales. He has written extensively on the ethics of migration, including Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh University Press 2000) and, with Christopher Heath Wellman, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford University Press 2011).
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A would-be immigrant crawls on the beach after his arrival on a makeshift boat on the Gran Tarajal beach in Spain's Canary Island of Fuerteventura in this May 5, 2006 file photo. 

Juan Medina: I heard about a makeshift boat carrying migrants from Africa was on its way to the beach at Gran Tarajal, south of the island of Fuerteventura so I rushed there.

When I arrived, the migrants, who risk their lives trying to reach European soil in flimsy boats, were being treated by members of the Spanish Red Cross who were providing them with clothes and water. They were exhausted from their perilous journey.

The strength of this image is that it shows the contrasts in our society: on one side of the photograph you have people who seem to be enjoying the sun on the beach and on the other a man crawling through the sand after risking his life at sea.

It was challenging to show as clearly as possible the inhumane conditions African migrants must endure in order to reach Europe. But there are also many things that this image doesn't show but that are very important in explaining why these people risk so much. For example, we don't get to see the suffering and solitude they endure after leaving their families behind.

I believe images that tell the stories of the migrants should affect everyone. Nobody should be immune to the plight of these people.    REUTERS/Juan Medina/Files  (SPAIN - Tags: CIVIL UNREST SOCIETY IMMIGRATION TPX IMAGES OF THE DAY)