Do Prosperous Democracies Have A Right To Keep Out Desperate Foreigners?

Posted January 7, 2016

Jan 6, 2016 Picture: Juan Medina/REUTERS

Picture Description: “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.

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

Do desperate migrants fleeing war, ecological disaster, poverty, tyranny, or persecution have a right to enter more stable, prosperous, and rights-respecting societies? Do the lucky inhabitants of more developed countries have a right to keep these migrants out by force? Defenders of the idea of state sovereignty say “no” to the first question, “yes” to the second. They believe that each state has the right to decide, through its recognized rulers, its own laws and policies in whatever way it sees fit. So if a state decides to keep foreigners out by force, it does no wrong: it does what it has a right to do.

Anyone who accepts the idea of human rights must reject this view. A basic point in saying that people have human rights is to say that states do not have a sovereign right to treat people in whatever way they see fit. A state does not have the right to cleanse itself of an ethnic minority, to torture people for practising a minority religion, or to treat its female population as slaves. There are moral standards—standards of justice—that a state must respect in how it treats people. A state that commits genocide, tortures, or enslaves people is unjust. So too is a state that uses its political power forcibly to prevent people from escaping utter poverty and desperation. A state does not have a sovereign right to do whatever it wishes: the authority to exercise political power depends on exercising it in a way that does not violate the fundamental rights of people.

But what if people disagree about what rights people have? Some people think that there is a basic, presumptive right to freedom of movement [See Cole for a discussion of this idea], but others—such as defenders of state sovereignty—believe there is no such right. Isn’t a basic reason for having a state to help us make collectively binding decisions despite our disagreements? Isn’t the point of political institutions to provide a recognized procedure by which we can collectively commit to common rules to govern our interactions—despite our disagreements over what those rules should be? Even if there really do exist human rights or standards of justice by which a state’s decisions could be judged, isn’t it ultimately through political institutions that we should determine what those rights and standards are? Defenders of state sovereignty might acknowledge human rights and standards of justice, but insist that, in the face of disagreement about what those rights and standards are, the state has the authority to decide. Defenders of state sovereignty might say, “if a state decides forcibly to keep out desperate migrants, because its representatives believe that the migrants do not have a right to enter, then it acts with legitimate authority. It is the state’s sovereign right to decide the matter.”

Anyone who accepts the idea of democracy must reject this view. Consider, for example, a state ruled by an absolutist dictator, in which collectively binding decisions are made unilaterally by one man. Alternatively, consider a state ruled by an Apartheid regime, in which collectively binding decisions are made unilaterally by one ethnic or racial group. Or a state in which only men are allowed to participate in deciding laws that govern women, too. A fundamental problem, in each of these cases, is that the state decides what rights people have, and that state institutions exercise political power over people, without those same people having any say over what decisions are made and how power is exercised over them. This is the fundamental point of democracy: that the very same people over whom political power is exercised should have a meaningful right to participate in making political decisions. Some people put this by saying that it is not the state, but the people who is sovereign.

“State institutions exercise political power over people, without those same people having any say over what decisions are made and how power is exercised over them”

So now we can pose our real question: Do the lucky inhabitants of stable, prosperous, rights-respecting, democratic states have a right to keep out migrants out by force, if they decide to do so through democratic institutions? Don’t Western democratic states like Germany or Canada have a right to decide themselves how many Syrian refugees they want to let in? Don’t they have the legitimate authority to do so?

To answer these questions, we must first remember the whole point of democracy: that the very people over whom political power is exercised should be the same people who have a say over how that power is exercised over them. That’s why it is not merely unjust, but also undemocratic to deny women the vote. The basic demand of democracy is that those who are subject to the exercise of political power have a say over how it is exercised over them. Now, in our world, where you can live and work is one of the most significant predictors of your prosperity and well-being. So coercively enforced political boundaries are one of the most important ways in which political power is exercised over people. In our world, border laws constitute one of the most significant ways in which states subject people to their political power. So it would seem that for a state to be a democracy, it has to give the people a say over what its borders look like—how closed or open they are, who is let in, etc. Now, someone might say, “that’s exactly what happens in democratic states as we know them: the people, through its representatives, decides on its own border policies.” But the question is who “the people” is supposed to comprise in this case. The democratic answer is not: whoever the state happens to recognize as part of the people. If an Apartheid or patriarchal regime doesn’t recognize blacks or women as participants in the political process, that’s a compromise of its supposedly democratic credentials. “The people,” in the relevant sense, is all those over whom political power is exercised.

Here’s the rub: regimes of border control not only subject insiders such as citizens or residents to the state’s exercise of political power, they also subject non-resident foreigners. In fact that’s the whole point of contemporary states’ border policies: to regulate, at the point of a gun, which foreigners can enter and which not. And since we don’t give these foreigners any political rights to participate in deciding what our border laws are, we end up violating our most fundamental democratic principle: that all those subject to political power have a say over the terms of its exercise over them.

Where does this leave stable, prosperous, rights-respecting, democratic states’ right to decide, unilaterally, whom they will let in? Once we recognize that our regimes of border control are democratically illegitimate, we might also recognize that we have a duty to make up for this democratic deficit in our decisions about borders. We might recognize that, as long we deny foreigners any say over our border policies—as long as we decide such matters unilaterally and hence undemocratically—we have a duty to take decisions that reflect not just what we want and our interests, but also their fundamental interests.

Desperate migrants fleeing war, ecological disaster, poverty, tyranny, or persecution have a right to enter more stable, prosperous, rights-respecting, democratic societies. So the issue is not who is a “real refugee” under international law: international law recognizes as refugees only those who are fleeing persecution, but migrants fleeing desperate economic or ecological circumstances are just as subject to the coercive interstate regime of border control as those fleeing persecution [See Oberman for a more detailed discussion of the rights of economic migrants]. And the lucky inhabitants of these more developed countries don’t have an unconditional right to keep these migrants out by force just because it is in their own interest to do so. Unilaterally denying entry to these migrants for purely selfish reasons is not only undemocratic, it is profoundly unjust.