The Right To Exit, No-Exit Policies & The Global Fight Against Terror

The Right To Exit, No-Exit Policies & The Global Fight Against Terror

Examining An Under-assessed dimension of immigration policy

By Professor Patti Lenard (University of Ottawa)

January 6, 2016          Picture: Devar/Flickr

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

Directed to do so by the United Nations Security Council, states have acknowledged the importance of acting collectively to combat the threats posed by would-be terrorists. The array of counter-terrorism policies adopted by states to combat terror is considerable; fighting terrorism or protecting a state’s security is listed among the goals of policy areas ranging from policing, to transportation, to religious freedom and, as is the subject of this article, immigration. In light of the “securitizing” of immigration policy, much important work has already been conducted to examine whether and when immigration policy is an effective tool to deploy in the global fight against terror.

This piece considers an under-assessed dimension of immigration policy that has been conscripted as a soldier in this fight: the set of policies recently adopted and proposed which serve to restrict the movement of individuals who are travelling with the intended or assumed intention to commit acts of terror, including no-fly lists, passport cancellations, and travel bans. In this piece, I examine the policies themselves; I consider the meaning of security, in particular as a justification for rights restricting policies; I consider the right to exit as well as the duties it imposes on states; and finally, I consider whether the security justifications offered for these policies are adequate. I conclude that the burden of proof that ought to be met, to justify restricting the right to exit, has not been met.


No exit policies

The most well-known of these policies is the so-called American “no-fly” list, which identifies individuals who are either denied the right to fly, or who are subjected to extra security screening before being permitted to board flights. There are others, however, including an increase in passport cancellations, without which individuals cannot cross borders, and travel bans, which identify specific locations to which citizens may not travel.   The review below is not intended to be comprehensive, but rather to identify the structure of the policies at stake, and their common objectives.

In the United States, the so-called “no fly” list is in fact two distinct lists, one of which specifies individuals who are simply not permitted to fly, and the second of which specifies individuals who may be permitted to fly, but who are subject to additional security screening before they are permitted to board a flight (it is termed the “selectee” list). The list was adopted following the terrorist attacks on US soil in 2001. As of 2007, travellers listed on both of these lists have some recourse – the American Department of Homeland Security set up a redress mechanism, the Travel Redress Inquiry Program (TRIP), the goal of which is to permit “cleared” individuals (previously identified on the no-fly list or the selectee list) to fly without facing additional obstacles.

In 2007, amid concerns that Canada was implicitly relying on the heavily criticized American no-fly list to screen passengers, Canada adopted its own no-fly list, known as the Passenger Protect List, which also screens individuals intending to board airplanes, to exit or enter Canadian territory. Just as in the United States, passengers denied the right to travel have access to recourse – Transport Canada staff members are responsible for operating the PPP and until 2015, its Office of Reconsideration was responsible for reconsidering placements on that list. As of mid-2015, and following the passage of comprehensive counter-terrorism legislation, reconsideration is carried out by the Minister of Public Safety. The UK adopted a similar system in 2010, which targeted only individuals attempting to enter the UK. This system was also two-pronged, focusing on identifying both individuals who were not permitted to board flights entering UK air space, and those who were to be subject to additional screening before boarding flights bound for the UK. As of March 2015, the no-fly list expanded to include individuals who are not permitted to leave the UK.

Passport cancellation is also adopted to restrict the movement of some individuals across borders, typically with the intention of preventing individuals from leaving their state’s territory, and also in some cases to prevent their re-entry. People with dual citizenship are particularly at risk, since in principle a passport-revoking state does not threaten to leave individuals without the documentation necessary to travel (in practice, they often do so). In principle, states have the power to both issue and revoke passports of citizens; the passport represents a states’ willingness to account for the actions of its citizens as they travel abroad.

In practice, states have adopted more explicit legislation permitting and even requiring the cancellation of passports of individuals intending to join foreign wars, or to participate in so-called terrorist activities abroad. In Canada, at least since the 2004 Canadian Passport Order, the government has possessed the power to revoke passports of individuals travelling abroad, and they have increasingly deployed the power to cancel documents for individuals believed to desire to travel to join terrorist groups in their struggles abroad. For some, this action appears to be less problematic than revoking citizenship itself,[1] which the government of Canada recently gave itself the power to do. It is not clear how many individuals’ documentation have been cancelled; in 2014 minister of Citizenship and Immigration Chris Alexander said only that there have been “multiple cases” of passport revocation of individuals who were believed to be aiming to join ISIS in Syria and Iraq. In November of 2014, France adopted legislation that permits the state to forbid individuals from leaving the country; as of February 2015, at least 6 individuals had been forbidden from leaving. Similarly, Australia has recently adopted legislation that specifically permits the revocation of passports of those suspected of desiring to join terrorist groups abroad.

Travel bans are increasingly proposed and adopted as a third way to prevent individuals from participating in foreign wars in which the parties to the conflict are believed to propagate terrorism. Both the Canadian and Australian governments are contemplating travel bans. Canada’s Prime Minister Stephen Harper promised that if he is re-elected, he will issue travel bans, making it a criminal act to travel to areas in which there is a significant amount of terrorist activities. Specifically, he said, “A re-elected Conservative government will designate travel to places that are ground zero for terrorist activity a criminal offence.”[2] Similarly, Australia has designated certain areas as “no-go” zones, to which its citizens are not permitted by law to travel.

These policies share a number of commonalities. For one thing, they are justified in terms of the importance of fighting security, and target the right of individuals to exit their states as the right that is sacrificed in the name of security. For another, they are often also justified by citing the global imperative to cooperate in fighting terror. Thus, individuals who intend harm, either by intending to participate in foreign wars, or by returning from foreign wars with skills adopted abroad that they intend to deploy against their countries of citizenship, will be thwarted by being denied the right to exit in the first place. For many advocates of these policies, the reasoning is therefore simple and adequately justified. The status of security as a basic value justifies restricting the right to exit, even though the right to exit is a basic human right.


What is security and (why) is it important?

While it is certainly true that the 9/11 terrorist attacks focused the minds in many democratic states on the dangers posed by terrorism, in particular to a state’s security, the view that a state is responsible for protecting its own security, which includes the security of its citizens, is not controversial. Rather, a state’s legitimacy does appear to hinge significantly on whether it is able to protect its citizens, i.e., whether it is able to offer them the security they need to go about their daily lives as they see fit. Security is basic in a profound sense[3]; if a state cannot provide security, many of the other things of value that states provide – stable political institutions, basic infrastructure, a social safety net of some kind, for example – will also be unavailable. What does security entail?[4]At its most basic, security implies personal safety; if individuals are not physically safe, they equally cannot be said to be secure. But there is more to security than that. In order for individuals to be secure on a territory, they must believe not only that they are physically safe, but also that their material possessions are safe, and furthermore that this physical and material safety is likely to remain secure into the future. In other words, security is in part assurance that the state will protect, and is able to protect, citizens’ physical and material security into the future. This assurance permits individuals to make plans into the future, trusting that the state will protect the conditions under which planning for the future makes sense. This assurance signals that there is a psychological element to security, i.e., that people must not only be secure but believe that they are.

Because security is understood to be basic, in the sense of essential to providing additional goods of value, it is imperative that a state act to protect the security of its citizens. Few would deny this kind of claim. What is controversial is the supposed securitizing of a whole range of policy domains. To securitize a policy domain means, first, to highlight that domain’s relevance to protecting security, and then, second and more critically, to highlight that the exceptional status of security as a basic good translates into the legitimate adoption of coercive practices that are not consistent with a standard understanding of values and norms in a democratic state. States argue that they need significant powers to protect security in exceptional times; according to the state, security’s paramount importance to a political community is such that its protection can, in principle, exceptionally demand the abrogation of otherwise sacrosanct rights in a democratic state. Critical security scholars worry that the long-term effect of “securitizing” a policy domain is the normalization of its “securitized” status, and thus the permanent rather than temporary abrogation of rights.[5] The thought is that individuals will get used to their reduced rights package and forget, over time, that this package’s initial reduction was justified by citing unique and temporary security threats.

“The thought is that individuals will get used to their reduced rights package and forget, over time, that this package’s initial reduction was justified by citing unique and temporary security threats”

The domain of immigration is one which has faced considerable securitization in the last many years, though it would be a historical error to suggest that this is the first time immigration policy has been connected to the security of a state’s borders. During most wars, including for most of the Cold War, border control takes on heightened significance, even in democratic states. The worry that migrants intend harm of some kind is strong and is offered as justification for making access to a given territory more difficult and, often, subject to procedures that are discretionary and, often, highly secretive.

In general terms, the worry has been about the movement of individuals onto a territory, and evaluations of their suitability as a migrant in a securitized environment focuses on whether they intend harm to the territory they are aiming to enter. The policies under consideration here also focus on movement, but in the first instance they focus on the desire of individuals to exit rather than enter a territory, and whether the intention of exiters is to cause harm, internationally or, in time, domestically. The justification for pursuing no exit policies of the kind at issue here stems in part from a global commitment to fight terror, and the postulate that since all states are possible victims of terror, they all share duties to cooperate in the fighting of terror globally.


The duty to admit

The Universal Declaration on Human Rights lists the right to exit one’s state as one among the basic human rights. One central defense of the right to exit links it to the right to move in general; the right to move is, on this view, essential to protecting an autonomous life, and so absent the right to move freely, including the right to leave one’s state, it is impossible to live a fully autonomous life.[6] [See Cole’s case for a right to international movement here]. It is evidently true that the right to move freely is one way in which we realize our autonomy; but, it is a mistake to defend the right to exit as though it were simply one way to express the more general right to move. In fact, as I have argued elsewhere, the right to exit is best defended for its important protective role.

Max Weber is credited with observing that states are the entities that possess the legitimate monopoly on the exercise of force; citizens and residents of a territory are subject to states’ coercive authority in multiple dimensions of their lives, on a regular basis. As democratic theorists note, there are multiple conditions under which this coercion can be justified and therefore legitimate.[7] Among those conditions are that citizens always possess the right to exit the state, if they believe that the coercion to which they are subject is objectionable in some way. In other words, the right is not simply grounded in autonomy, though of course if an individual who desired to escape a coercive government but was unable to do so because she is prevented by that government from crossing borders, her autonomy would certainly be at risk. Rather, the right is grounded in the strong interests individuals have in living in safety and security[8]; this safety and security is an essential precondition for living an autonomous life, and indeed the ability to exit a state when one believes the coercion being exercised is unjustified, and irredeemably so, is therefore best understood as a basic human right, grounded in the interests we share in living in safety and security.

“The right to freedom of movement is grounded in the strong interests individuals have in living in safety and security”.

It does not take very much thinking to observe, however, that many individuals do not live in safety and security, and thus might prefer to exit their states. In many cases, individuals attempting to exit find themselves blocked by their inability to find a state willing to admit them to its territory. This challenge highlights a widely acknowledged asymmetry, between the right to exit and the right to enter: at least conventionally, it is understood that while the right to exit must be protected as a precondition for democratic legitimacy, in general no particular state is required to admit a given individual. States are understood to be self-determining, in other words, one component of which is the right to exclude individuals from their territory.

IFRC, Stephen Ryan/Flickr
IFRC, Stephen Ryan/Flickr

Some political theorists acknowledge the consequences of holding this position: Michael Walzer, for example, notes that if we accept that states are permitted to make decisions about who may enter their territory, one unfortunate consequence of this position is that bona fide refugees may fail to find safe havens.[9] Others acknowledge this possible consequence, but appear to believe that nevertheless most refugees will find sanctuary, even if this sanctuary is not offered by their state of first preference. David Miller for example acknowledges that sanctuary is owed, but that refugees are not entitled to demand that this sanctuary be offered by the state of their choice.[10] Many others simply postulate that the right of states to be self-determining with respect to their membership is legitimately exercised only where genuine need is eradicated, globally, and remain quiet on questions of how to remedy recent crises that produce large-scale movement across borders [See Lamey & Blake for a survey of philosophical views on refugee status].

In other words, these debates fail to confront adequately that there is great need for sanctuary, and that worldwide, there is considerable reluctance to provide it. There are many reasons for this reluctance, of course. For one thing, wealthy states have recently come to worry that the asylum procedure is being abused by citizens from developing states, who have no other way to gain admittance than to claim refugee status, and relatedly, that it is increasingly difficult to identify those who are “genuine” refugees. The worry is that these poor (but non-persecuted) migrants will gain admittance as asylum seekers, and quickly disappear into the illegal economy, as their claims are being processed for credibility. The danger apparently posed by these “fake” refugees has mobilized xenophobic sentiments across many wealthy states, which make a host of wild claims concerning the deleterious effects of the presence of thousands of these migrants. They are accused of raising rates of crime; they are accused of taking advantage of the welfare state (even though they are often not permitted to work, and therefore have no alternative means of sustenance); they are accused of being security threats, and so on [See Oberman for a discussion of how to treat so-called “economic migrants”].

To respond to the alleged abuse, and therefore to protect themselves from an influx of “fake” refugees, states have created and expanded what Matthew Gibney has termed “non-arrival procedures.”[11] These non-arrival procedures range from imposing fines on transportation companies that transport individuals without adequate documentation; to increasing the requirements for securing travel visas to certain countries; to denying the full complement of rights to travellers in airports (thus making their deportation easier). Australia has gone so far as to “excise” portions of its territory from its “migration zone, so that the landing of asylum-seekers on these territories did not engage most of the country’s protection obligations.”[12] These policies aim to make it harder for asylum seekers to reach a state’s territory, thus apparently closing the question of whether these states are obligated to offer asylum (since international law requires that asylum be granted to those who arrive on a state’s territory, in particular). Taken together, these policies make it harder than ever for some individuals to exit their states, and they highlight the deep connection between the supposedly, justifiably, asymmetric rights to exit and enter [See Gibney for his take on the implications of current refugee policies in the global North].

To the extent that access to a certain subset of wealthy, developed, countries is increasingly being restricted by the adoption of non-arrival procedures, even to genuine refugees where the moral claim to entry is greatest, the right to exit that we are said to possess in virtue of our humanity is increasingly being constrained for many individuals. If only one of these countries had made concerted efforts to restrict entry, the right to exit would not be in jeopardy (even if that one country would be abrogating its responsibilities to refugees); that multiple countries are doing so in concert, however, has jeopardized the basic human right to exit. Thus, even if one is inclined towards a view that accepts states’ right to exclude in some cases, the uncoordinated but nevertheless collective move towards making refugee status more difficult to claim violates the duty to respect the right to exit, which states possess most clearly and strongly in the case of genuine refugees. This discussion highlights that even if it were possible for philosophers to agree that states can legitimately maintain some discretion to exclude would-be migrants, receiving states nevertheless share some responsibility for enabling, or at least not deliberately dis-enabling, the exercise of the right to exit.

“If only one of these countries had made concerted efforts to restrict entry, the right to exit would not be in jeopardy; that multiple countries are doing so in concert, however, has jeopardized the basic human right to exit”

The right to exit and the duty to let citizens go

The discussion above considered the implications of assuming, as do many political theorists, that states can legitimately exclude potential migrants, citing their right to self-determination. If states are permitted to exclude as a condition of their being self-determining, then it just is a consequence of this right that some individuals desiring entry will not gain admittance. This assumption is buttressed by a second assumption, namely, that the right to exit is best understood as a domestic right, i.e., it is a right that is held against one’s own state. Just as the claimed right to self-determination, a commitment to the right to exit as a domestic right appears to absolve would be receiving states of any duties to admit. I have questioned this latter assumption elsewhere, arguing instead that the right to exit indeed imposes duties on receiving states, even where we believe that states do have the right to be self determining.[13]

AFP photo, Aris Messinis/Flickr
AFP photo, Aris Messinis/Flickr

Here, I want to consider more deeply specifically the duties imposed on the domestic state, by the right to exit. On its plainest, and most formal, interpretation,[14] the right to exit is among those that protect individuals from interference by others, including the state. It thus appears strongly to be the case that states’ obligations with respect to the right to exit are largely negative, i.e., states are prevented from interfering with the exercise of this right, rather than positive, i.e., they are not obligated to create the conditions under which the right can be exercised. This understanding of the right to exit explains in part why the Berlin Wall and Soviet Union exit restrictions were problematic: they violated the negative duties imposed by the right to exit.

A useful implication of this way of understanding a state’s duties to respect the right to exit is this: if the right imposes duties of non-interference on states, where states deliberately make exiting more difficult for their citizens, they will be in breach of their duties. For example, some states have required very high exit taxes be paid in exchange for the documentation required to gain admittance elsewhere, if citizens intend (or are believed to) to exit a country on a permanent basis (the explicit purpose of which was to dissuade citizens from exiting). Others have threatened to harm family members and friends – for example, the Chinese government has historically threatened its athletes and artists with harming their families’ financial interests, if they claimed asylum while travelling abroad to perform.

Yet, it seems, there are additional duties, beyond non-interference, that are imposed by the right to exit. For one thing, states must ensure that their borders are porous enough that citizens can pass through them. This may seem so obvious that it is not worth mentioning, but historically (as the examples of the Berlin Wall and the Soviet Union suggest) states have constructed borders and border controls in ways that restricted exit of their citizens.

For another thing, entering a state requires possessing a passport issued by one’s country of origin, and a state that refuses to issue or renew passports may not have technically closed their borders, but have nevertheless prevented their citizens from exiting legally by making it impossible for them to enter any other country. The ways in which airlines have become absorbed into the global border control regime, which I described above, serves to make it clear how important it is that states provide timely and accurate documentation to their citizens as one among the duties imposed on states to respect the right to exit. If citizens are permitted to cross borders, and if their state of citizenship grants them timely and accurate documentation, we can say that formally their right to exit is protected.[15]

“The ways in which airlines have become absorbed into the global border control regime, which I described above, serves to make it clear how important it is that states provide timely and accurate documentation to their citizens as one among the duties imposed on states to respect the right to exit”.

It is of course a mistake to claim that states may never restrict their citizens’ ability to exit. There are certainly political and social circumstances in which, although the right to exit is a basic human right, there are countervailing considerations that permit the state to restrict access to this right. The clearest example of legitimate restriction is widely agreed to be in situations of public health emergencies: if there are reasons to believe that permitting citizens to exit a state will permit dangerous and infectious diseases to spread quickly, and thus that restricting exit on a temporary basis will protect others from these diseases, then borders may legitimately be closed.

There is much debate about whether the closing of borders during times of health crises serves the general objective of reducing the spread of disease, and if so, at what point in a health emergency doing so can be helpful. But the principle exists in international law, i.e., international law acknowledges that there may be times where closing the border on a temporary basis, to preclude departures of individuals ill with infectious diseases, and thus the spreading of diseases across borders, can be justified. It is also widely agreed that the right to exit can be restricted for citizens who are accused of a crime, who are sometimes asked to surrender their passports during criminal proceedings or so that they can be released on bail as they await trial, or those who are participating as key witnesses in trials. More controversially, some states deny the right of citizens to exit if their national service requirements are unmet (at a stage in their lives when they ought to be met).


Can no exit policies be justified in the name of protecting security?

But what is new about the recent policies that restrict the right to exit? Do they amount to a violation of the duty of non-interference with a basic human right? Note that, at least as I have characterized it above, the right to exit imposes two clear duties of non-interference, namely the duty to keep borders open, and the duty to issue the documentation necessary to gain admittance elsewhere. The policies under discussion here – the so-called no-exit policies – do threaten to violate the duties of non-interference imposed by the right to exit. The justifications for these policies take a number of forms, most broadly understood in terms of their supposed contribution to protecting a state’s national security. Let me offer three reasons to be sceptical of these justifications: 1) there is inadequate evidence for the claim that these policies protect security; 2) these policies do not come with sunset clauses or mandatory review periods, thus suggesting that critical security scholars are correct to worry that they are simply vehicles by which states are attempting to amass power, by constraining rights, over the long term; and 3) these policies are unduly burdensome on some citizens (but not others), thus violating the commitments imposed by the principle of democratic equality. Let me elaborate.

One justification for imposing exit restrictions highlights the danger to security, global and domestic, posed by individuals who intend to travel to participate in foreign wars. Some versions of this justification focus on the harm that citizens can cause when they join foreign wars; on this view, the worry is that “our” citizens may intend to cause harm “abroad” and it is our duty to prevent them from doing so, by denying their right to travel. This justification highlights the global responsibility we have to fight terror. Other versions worry not especially about the harm that individuals will cause while abroad, but instead on the harm they may cause upon re-entry; on this view, the worry is that foreign fighters will be radicalized by participating in foreign wars, and will develop not only a desire to harm their co-citizens upon return, but also the skills needed to do so. This reasoning is often also deployed to justify the revocation of citizenship of dual nationals, to prevent their re-entry to a territory to which they are thought to desire to cause harm.

The challenge in refuting this worry appears predominantly in the form of the one recent incident, in which a French citizens, who is known to have returned to Europe having fought in Syria, shot and killed several individuals in Brussels, at the Jewish Museum.[16] The worry that this sort of attack is planned by other returning foreign fighters motivates support for no-exit policies. Historically, however, there is considerable evidence that this kind of post-war action is unusual rather than the norm, or even to be expected. Studies of returning foreign fighters – for example, from Afghanistan, Somalia and Bosnia[17] – suggest, for one thing, that they do not intend to generate harm upon return; advocates for no-exit policies imply that contributing to war in Syria or Iraq is different from participating in earlier foreign wars which attracted many foreign fighters, but no evidence is provided to suggest why this would be the case.

What if evidence were provided to suggest persuasively that returning foreign fighters in particular were intending to cause enough harm to warrant restricting the right to exit? Two additional criteria would nevertheless have to be met in this case. One criterion highlights the security justification and attempts to respond to the anxiety highlighted by critical security scholars: to remind, this worry is that rights restrictions justified by citing an exceptional security risk will ultimately become permanent, even after the security risk is mitigated. The “exceptional” will become normalized. The thought is that power hungry governments will be unlikely to relinquish powers once they have been taken. The way to mitigate this risk is, roughly, to require that any policy that permits the restriction of rights be subject to reassessment on a regular basis as a condition of its ongoingness. This kind of requirement ensures that the justifications for restrictions – in this case, the danger posed by returning foreign fighters – are subject to ongoing critical review. In particular in cases like the ones under consideration, where the worry is participation in a particular war, the supposed danger is likely to be short-term only. The danger therefore cannot be thought to justify rights restrictions on a permanent basis, in particular in light of evidence that returning foreign fighters at least historically have not returned with an intention to cause harm. In other words, if presently active foreign wars are credibly different from previous wars, and thus more likely than prior wars to produce individuals who return to harm their countries, the weight of historical evidence (that returning foreign fighters are not generally dangerous to their countries of citizenship) suggests that this is unusual and should be treated as such.

One main reason to subject rights restricting policies to mandatory deliberation and regular re-approval is because they are disproportionately burdensome. A key aspect of this discussion, both prior to their passing and afterwards, is whether less burdensome alternative policies can be envisioned to produce the same benefits (in this case to protect security) as the proposed policy. The reason that citizens must be satisfied that no alternative policy can provide the security benefit supposedly to be derived from restricting the right to exit is, simply, that the restriction of rights can be justified only where it can be plausibly connected to a particular policy objective, and where alternative and less burdensome options are considered and abandoned for being ineffective or inadequately effective.

In the case of the no exit policies that form the topic of this piece, however, the issue at stake is not simply whether the threshold for restricting rights has been adequately met. A further problem is that the laws have discriminatory impact; some people’s right to move is restricted more than others’. The construction of the laws – passport controls, travel bans, and no-fly lists – in principle subject all citizens to the same rules. But the impact of these laws is discriminatory, in at least two ways that are widely acknowledged. For one thing, the set of people who are victims of these restrictions are largely immigrants from a particular, and often troubled, part of the world. Not only are those who are justifiably their victims (assuming such a set of individual exists) likely to be of Muslim background, those who are mistakenly the victims of these policies are likely to be of Muslim background. For another, these restrictions propagate the view that such individuals are in fact dangerous or poorly integrated, and thus perhaps deserving of distrust rather than trust.

“Not only are those who are justifiably their victims likely to be of Muslim background, those who are mistakenly the victims of these policies are likely to be of Muslim background”.

Both of these impacts are troubling simply because they are straightforwardly, and indeed predictably, discriminatory impacts of laws that are apparently respectful of a commitment to equality in democratic states. It is possible to be more precise about the equality violation that is produced by the adoption of no-exit policies. A key principle of democratic states is that the rights of all citizens are equally protected; to the extent that the rights of some are protected or violated more than the rights of others, they are violating the equality commitment upon which they are founded.[18] In other words, the threat posed by these policies is not simply the restriction of a basic human right, rather it is a restriction of a basic human right that on a plausibly and predictably unequal basis. The consequence is that, in the name of protecting security for all citizens, the security of some is sacrificed. Put differently, the insecurity of some citizens is produced in the name of producing the security for all. There is a fundamental error, here, which is the failure to recognize that along with the features of security defined above, it also contains an essential egalitarian element. It is not enough to claim that a democratic state’s legitimacy hinges at least in part on its capacity to protect the security of its citizens; its legitimacy hinges on providing that security on an equal basis. The no-exit policies here fail not only to protect security, but they fail to recognize the egalitarian dimension of security, i.e. the particular wrong they predictably inflict on some individuals in the name of all citizens.



I should not be taken to be denying that there are cases where the rights of citizens can be justifiably restricted in pursuit of a greater good, nor should I be taken as having offered a full evaluation of the merits of no-exit policies as tools for fighting global terror. Rather, I am simply suggesting that the evidentiary threshold for adopting these policies in a democratic state ought to be high. No exit policies are said to be demanded by our collective duty to fight terror globally and justified in terms of the importance of protecting states’ national security. In this piece, however, I have argued that the burden of proof, to justify a set of policies which fundamentally restrict the basic human right to exit, has not been met.

Footnotes & References

[1] But not for others, who acknowledge that a passport is fundamentally an identity document, without which it is impossible to prove one’s citizenship while abroad. See Patrick Weil, “Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts,” Yale Law Journal Forum 123(2014):

[2] CBC News, “Tories propose ban on travel to terrorist hotspots,” CBC News, August 9 2015.

[3] Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd edition), 2 ed. (Princeton: Princeton University Press, 1996).

[4] This account draws on Jeremy Waldron, “Safey and Security,” Nebraska Law Review 85(2006): 301-53. Available online at

[5] This is the worry expressed for example by Michael C. Williams, “Securitization and the liberalism of fear,” Security Dialogue 42, no. 4-5 (2011): 453-63.

[6] Chandran Kukathas, “The Case for Open Migration,” in Contemporary Debates in Applied Ethics, ed. Andrew Cohen and Christopher Heath Wellman (Oxford: Blackwell, 2005).

[7] Michael Blake, “Distributive Justice, State Coercion, and Autonomy,”Philosophy & Public Affairs 30, no. 3 (2001): 257-96.

[8] I say more about this at: Patti Tamara Lenard, “Exit and the duty to admit,”Ethics and Global Politics 8(2015):

[9] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).

[10] David Miller, “Why Immigration Controls Are Not Coercive: A Reply to Arash Abizadeh,” Political theory 38, no. 1 (2010): 111-20.

[11] Matthew Gibney, “A thousand little Guantanamos: Western states and measures to prevent the arrival of refugees,” in Migration, Displacement, Asylum: The Oxford Amnesty Lectures 2004, ed. Kate E. Tunstall (Oxford: Oxford University Press, 2006).

[12] Ibid., 150.

[13] Lenard, “Exit and the duty to admit.”

[14] For this interpretation of the right to exit, see Chandran Kukathas, “Exit, Freedom, and Gender,” in On Exit, ed. Dagmar Borchers and Annamari Vitikainen (Berlin: de Gruyter, 2012).

[15] Even if these basic duties are met, individuals may not be able to make use of an exit option; citizens may nevertheless not possess the resources needed to exit and relocate abroad, since doing so is often an expensive proposition. Yet, few people argue, or even imply, that states would be required to offer financial resources to enable their citizens to exercise their right to exit.

[16] For a description of this case, see “Brussels Jewish Museum Killings: Suspect ‘admitted’ attack”, BBC News, June 14, 2014,

[17] Jeanine de Roy van Zuijdewijn and Edwin Bakker, “Returning Western Foreign Fighters: The Case of Afghanistan, Bosnia and Somalia,” (International Centre for Counter-Terrorism: The Hague, 2014). Available online at:

[18] Patti Tamara Lenard, “Democratic equality and internal movement,” (Contribution to a symposium on Joseph Carens’ Ethics of Migration: Crooked Timber, 2014).

Patti Lenard
Patti Lenard
Patti Tamara Lenard is Associate Professor of Ethics in the Graduate School of Public and International Affairs, University of Ottawa. She is the author of Trust, Democracy and Multicultural Challenges (Penn State, 2012). Her research focuses on the moral questions raised by immigration in an era of security, as well as on multiculturalism, trust/social cohesion, and democratic theory. She is Principle Investigator of a Public Safety funded project that focuses on the experience of Muslim Canadians, in particular their response to immigration policy change, in an increasingly securitized political environment.
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