Justifying exclusion : freedom of association, territorial rights, and the state's right to exclude immigrants

Abstract

It is often assumed that modern states automatically enjoy a general discretionary right to exclude immigrants (“right to exclude” for short) by virtue of their jurisdictional rights over their respective territories, but this is increasingly under challenge from advocates of “open borders,” who believe most immigration restrictions are unjust and should be removed. In this thesis, I explore the philosophical basis of the right to exclude and (if such a right exists) its limits. I modify Christopher Heath Wellman’s argument and argue that the people in a state have freedom of association, which entitles them to refuse to associate with would-be immigrants as fellow members of the group. To address also the territorial aspect of exclusion of immigrants, I conduct a survey of several major theories of territorial rights and conclude that an “overlapping consensus” of these theories support a limited control right over the territory (which I call “territorial entitlement”). Then the people’s freedom of association and the state’s entitlement to its territory together ground the right to exclude. This combined approach implies that the right to exclude is subject to the limits of both the people’s freedom of association and also the state’s territorial entitlement. Importantly, I argue that the state’s territorial entitlement, according to most theories of territorial rights, seems to be conditional on the ability or possibility of outsiders to enjoy a minimally decent life outside the claimed territory. Consequently, those outsiders who cannot do so would enjoy a right to access a territory which can support a minimally decent life. However, I argue that there is no human right to immigrate in general, and I refute three arguments that seek to justify such a right, namely the direct argument, the cantilever argument, and the asymmetry argument. Lastly, I also look into two more practical issues surrounding the ethics of immigration, namely the selection of immigrants and the enforcement of immigration controls. I argue that a state can only exclude immigrants based on reasons that are rationally connected to the legitimate purpose(s) of its immigration policy. Regarding enforcement, I also argue that the state can only enforce its immigration controls with proportionate levels of coercion, and that the state may have to adjust its immigration policy such that more people can enter through regular (lawful) channels. I believe my approach to exclusion of immigrants represents a fairer balance between the rights and interests of insiders and outsiders by affirming the state’s right to exclude while imposing a duty on states to admit certain categories of migrants under certain circumstances.