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Sovereign States Control of Immigration: A Global Justice Perspective
Published online by Cambridge University Press: 19 March 2012
Abstract
Global justice is a relatively new concept that is being developed both by scholars, who belong to the political school of thought, and by others, who define themselves as cosmopolitans. Whereas political scholars believe that the global implications of justice contemplate states or peoples, cosmopolitans refer to the individual as the subject of justice even when dealing with it on a global scale.
Despite the differences between the two schools, this Article shows that none has clearly called for the imposition of additional obligations upon states that would force them to allow immigrants to enter those states' territory. Further, our survey shows that the five scholars examined believe that considerations of global justice should compel developed states to offer at least some assistance to burdened or poor states in order to reduce the causes of migration. All differ regarding the type and scope of assistance but agree that the reasons for migration should be reduced in the state of origin.
What is missing in the scholarly works on global justice is a solution to the forced migration of masses of people. This problem cannot be solved, at least in the short run, solely by assisting the state of origin. As long as the lives of the migrants are threatened, states must open their gates to save them and agree that an international body will administer this issue and ensure that the burden is shared proportionally among the various states of the world. Such an international body will also be competent to promote programs of assistance to states, which will in turn reduce the need to migrate.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010
References
1 Another element to be considered is the legality of entry, i.e., whether the definition should also include those who enter the state illegally; however, this issue lies beyond the scope of this Article.
2 Universal Declaration of Human Rights, art. 13 (2), G.A. Res. 217 A(III), U.N. Doc. A/810 at 71 (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights, art. 12(4), Dec. 16, 1966, 999 UNTS 171; Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3(2), E.T.S. No. 46; Ian Brownlie, Basic Documents on Human Rights 347(3d 1992); African [Banjul] Charter on Human and Peoples' Rights, art. 12(2), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); American Convention on Human Rights, art 22(5), Nov.22, 1969, 1144 U.N.T.S. 123; see also Zilbershats, Yaffa, The Human Right to Citizenship 43–56 (2002)Google Scholar.
3 United Nations Convention Relating to the Status of Refugees, art. 1 July 28, 1951, 1989 U.N.T.S 137, provides that a refugee is:
any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Article 33 of this convention provides the right of non-refoulement, according to which a refugee who has already reached the borders of another state must be permitted entry if sending him to another state would threaten his life or freedom by reasons of his race, nationality, membership in a particular social group or political opinion.
4 Gans, Judith, Citizenship in the Context of Globalization, 1Google Scholar Immigration Policy Working Paper, 2005, available at udallcenter.arizona.edu/immigration/publications/Citizenship%20and%20Globalization.pdf.
5 Von Bogdandy, Armin & Dellavalle, Sergio, The Paradigms of Universalism and Particularism in the Age of Globalization: Western Perspectives on Premises and Finality of International Law, in 2 Collected Courses of the Xiamen Academy of International Law 53 (2009)Google Scholar.
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10 Sur, supra note 8, at 428.
11 Id.
12 Gans, supra note 4.
13 Bogdandy & Dellavalle, supra note 5, at 14–15.
14 Stiglitz, supra note 6, at 10.
15 Another criticism is that globalization was conceived as the imposition of U.S. hegemony over the world through international economic institutions such as the WTO and IMF. See Berman, supra note 7, at 170–71; Sur, supra note 8, at 429–30; Gans, supra note 4, at 2.
This development has been widely criticized on the ground that these strong international economic bodies impose their policies (which are undemocratic per se since they are controlled by the U.S.) upon weak developing states. The receiving states are actually forced to comply with these bodies' decisions and policies, with the result that the democratic decision-making process within the states is impaired. See Bogdandy & Dellavalle, supra note 5, at 10.
It is not only the democratic process within states that is endangered by globalization but also its essence. Developing and other states have criticized the imposition of western norms on local cultures with the ensuing creation of an hegemony of ideas in various areas of life, including in economic and human rights issues. See Berman, supra note 7, at 170-71.
Critics also argue that U.S. hegemony and the imposition of its policies upon economies in developing countries is incompatible with these states' political development and their capacity to absorb these processes. It causes more harm than good and does not reduce poverty in the world. See Stiglitz, supra note 6, at 11–20.
16 Stiglitz, supra note 6, at 2, 7. See also Eliezer Schweid's criticism of globalization as modern imperialism in Studies on Jewish People, Identity and Nationality 17, 27 ((Rothenberg, Naftali & Schweid, Eliezer eds., 2008) [in Hebrew]Google Scholar.
17 Benhabib, Seyla, The Law of Peoples, Distributive Jusrice and Migrations. 72 Fordham L. Rev. 1761, 1782, 1778 (2003–2004)Google Scholar. For a comprehensive survey of various cosmopolitan approaches, see Caney, Simon, International Distributive Justice, 49 Pol. Stud. 974 (2001)CrossRefGoogle Scholar.
18 Habermas, Jürgen, The Inclusion of the Other 183 (1998)Google Scholar.
19 Brock, Gillian, Global Justice 87, 25–26 (2009)CrossRefGoogle Scholar; Joseph Stiglitz elaborates on the economic problems caused to poor, undeveloped states by globalization. He mainly blames multinational corporations and international organizations such as the World Bank, the International Monetary Fund and the WTO. See Stiglitz, supra note 6, at 6–21.
20 Garcia, Franck J., Globalization and the Theory of International Law, 1–5, 9–10, (Boston College Law School Faculty Papers, 2005)Google Scholar, available at lsr.nellco.org/cgi/viewcontent.cgi?article=1093&context=bc_lsfp.
21 Rawls, John, The Law of Peoples 119–20 (1999)Google Scholar.
22 Id. at 119. This thesis was heavily criticized by cosmopolitans as is made clear below. One point of criticism contests Rawls' assumption that if regimes are decent there will be no poverty or suffering within states. Stephen Macedo asserts that Rawls disregards reality when distress ensues from geographical factors such as disease, floods, and other natural disasters. Rawls also disregards the past exploitation of undeveloped states by colonial regimes and present exploitation due to globalization. See Macedo, Stephen, The Law of Peoples, What Self-Governing Peoples Owe to One Another: Universalism, Diversity and the Law of peoples, 72 Fordham L. Rev. 1721, 1727 (2003–2004)Google Scholar.
23 Rawls, supra note 21, at 26.
24 Id. at 54.
25 Id. at 78.
26 For example, Rawls describes a hypothetical decent state—Kazanistan—in which there is no separation of religion and state, and only members of one of the religions adhered to by the citizens of that state may be elected to become judges, legislators, or ministers. Citizens of Kazanistan who belong to other religions can profess theirs but cannot be elected to high positions of government. If Kazanistan has basic institutions of government and observes a narrow list of basic human rights, the fact that it does not confer upon all its citizens the right to be elected does not make it an indecent state. Id. at 75–78.
27 Rawls, supra note 21, at 65–66.
28 Id. at 63.
29 Id at 37. The principles are:
a) Freedom and independence to be respected by their peoples;
b) Observation of treaties and other international undertakings;
c) Equality of peoples;
d) Observation of nonintervention;
e) Avoidance of use of force except for self defense;
f) Observation of human rights;
g) Observations of the laws of war (jus in bello);
h) Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.
30 Id.
31 Id. at 107 “the aim is to realize and preserve just (or decent) institutions, and not simply to increase, much less to maximize indefinitely, the average level of wealth of any society or any particular class in society.”
32 Id. at 108. Bietz totally disagrees with Rawls. He thinks that in the age of globalization it is immoral to confine principles of social justice to domestic societies. In his opinion, it has the effect of taxing poor nations so that others may benefit from living in just regimes. In such situations, the principles of domestic justice will be genuine only if they are consistent with principles of justice for the entire global scheme of social cooperation. See Beitz, Charles R., Political Theory and International Relations 149–150 (revised ed. 2001)Google Scholar.
33 Beitz, supra note 32, at 8-9, 39, & 39 n.48.
34 Id. at 9.
35 Benhabib places a large question mark on Rawls' assumption that once a regime is decent, people will not wish to emigrate. In her words: “This is certainly a vision of ordered world, but it is also a vision of a static dull world of self satisfied peoples, who are indifferent not only to each other's plight but to each other's charms as well.” Benhabib, supra note 17, at 1773. Benhabib adds that this assumption was never tested empirically, id. at 1777.
36 Rawls, supra note 21, at 37.
37 See supra text and note 31. Benhabib argues that Rawls' assertion—better conditions in the state of origin will avoid emigration—has not been tested in reality. See Benhabib, supra note 17, at 1781 & n.56.
38 To see what these principles include see supra, text adjacent to notes 25–27.
39 See Benhabib, supra note 17, at 1773.
40 See supra, text adjacent to note 29.
41 Rawls, supra note 21, at 42.
42 Id.
43 Walzer, Michael, Global and Local Justice, Collegio Carlo Alberto 15 (2008)Google Scholar, available at www.carloalberto.org/files/globalandlocaljustice.pdf.
44 Walzer offers three answers to the question of how we can achieve the goal of reducing acute poverty:
First, if it is true that a certain small percentage of the world's wealth can solve the global problem of acute poverty, then there is a duty to force wealthy people and prosperous states to use that share of their wealth to achieve the goal of eliminating acute poverty. Beitz supra note 32, at 137-43, also suggests redistribution of natural resources as part of this scheme.
Second, citizens of wealthy states should compel their governments to avoid cooperating with burdened corrupt regimes which rob their country's resources and cause their inhabitants to lead a life of acute poverty.
Third, states should try to modify trade policies in a way that would secure minimum wage standards, protect the environment and promote other important projects.
45 Walzer, Michael, Spheres Of Justice: A Defense Of Pluralism And Equality 61 (1983)Google Scholar.
46 Id. at 31.
47 Id. at 32.
48 Eliezer Schweid thinks that nationality of value is essential to the existence of a democratic state in the modern era, as it is the basis for a distinct cultural creation that expresses the human existence. Schweid, supra note 16, at 29-32.
49 Walzer, supra note 45, at 39. Joseph H. Carens criticizes Walzer's idea that distinctiveness can exist only if there is closure. He looks at societies within states that are distinct from one another even though full freedom of movement exists within states. See Carens, Joseph, Aliens and Citizens: The Case for Open Borders, in Theorizing Citizenship 229, 245 (Beiner, Ronald ed., 1995)Google Scholar. Benhabib argues that such an approach disregards the advantages offered by immigration movements for the enrichment and development of cultures. Benhabib, supra note 17, at 1772.
50 Walzer, supra note 45, at 61–62.
51 Id. at 33.
52 Walzer, supra note 43, at 11.
53 Walzer, supra note 45, at 48.
54 Id. at 48.
55 Supra, text adjacent to note 39.
56 Walzer, supra note 45, at 48.
57 Id. at 49.
58 Id. at 50.
59 Id. at 50–51.
60 Id. at 51.
61 Walzer, Michael, Arguing about War 171 (2004)Google Scholar.
62 It is very clear why the world should not be governed by an anarchical regime which engages in wars, conquests, oppression, etc. The other extreme situation of a global world order is where a global government is established. The benefits which may be gained from such a regime are obvious: It will limit wars between states as there will only be one world state with a central world government and have the capacity to apply global distributive justice and transfer natural resources and funds from one part of the globe to another. However, Walzer does not suggest that these benefits should convince us to adopt such an extreme solution as a world government has the potential to become a world tyranny that will not be balanced by competing forces. In addition, Walzer does not believe that it is realistically possible to create global unity. Peoples of the world are unwilling and incapable of leading lives which do not express their traditions and cultures. Demands for public expression of cultural divergence would be rejected by a world government and, if accepted, would move the world in a more rightwing direction and away from global unity. Pogge adopts a similar view. Like Walzer, he rejects the idea of a world empire, but unlike Walzer he believes that sovereign states should not necessarily remain the organizational units of society. See Pogge, Thomas W., Cosmopolitan and Sovereignty, 103 Ethics 48, 63–75 (1992)CrossRefGoogle Scholar.
63 See also Kurasawa, Fuyuki, The Work of Global Justice: Human Rights as Practices 5–6 (2007)CrossRefGoogle Scholar.
64 In contrast to Walzer, Habermas does believe in a world federation as the best structure to apply global justice. Like Walzer, he does not call for the abolition of states, see Habermas, supra note 18, at 180–81.
65 Brock, supra note, at 39, 88; Nagel, Thomas, The Problem of Global Justice, 33 Phil. & Pub. Aff. 113, 119, 130 (2005)Google Scholar.
66 Brock, supra note 19, at 8–9; Pogge, supra note 62, at 56.
67 Brock, supra note 19, at 4.
68 Id. at 4.
69 Id. at 46.
70 Id. at 47. See Beitz, Charles, Cosmopolitan Ideas and National Sentiment, 80 J. Phil. 591, 593, 595–596 (1983)CrossRefGoogle Scholar; Pogge, supra note 62, at 48–55; Moellendorf, Darrel, Cosmopolitan Justice 17(2002)Google Scholar; Carens, supra note 49, at 251–52.
71 Brock, supra note 19, at 47. Brock argues that people would agree that everyone should be protected from certain real (or highly probable) risks of serious harm so that they would have what is necessary to meet their basic needs. She continues that people should be adequately provided for in terms of assistance if they are incapable of meeting their own needs. Id. at 50–52. Brock bases her assessment about how people behind a global veil of ignorance will act on empirical studies which she has conducted on the matter. Id. at 54–57. Rawls asserts that behind a state's veil of ignorance people would agree upon the fair equality of opportunity principle. Here too, Brock deviates from Rawl's ideas when dealing with this principle on a global scale. She poses the question whether we really want a child from agricultural Mozambique to have the same statistical opportunity to become a banker as the son of a Swiss banker? In her view, an affirmative answer to such a question would disregard the difference between cultures. Id. at 59.
72 Id. at 62–63. Brock proceeds to define what she means by a decent life, or alternatively a life where one's freedom and basic needs are met. She states that it includes “what is necessary for social functioning, without its satisfaction one would be unable to carry out four basic social roles: those of a citizen, parent, householder and worker” (id. at 70–71); this requires the promotion of capabilities that would enable people to meet their needs. According to Brock's theory, the account of basic needs is more fundamental than the account of human rights; the latter is broader and cannot be developed unless the demands of basic needs are met. Id. at 72.
73 Id. at 5.
74 Id. at 192, 195, 198.
75 Id. at 197 n.17.
76 Id. at 196 n.11 & 12.
77 Id. at 196.
78 Id. at 196–97.
79 Id. at 196 n.10.
80 Id. at 197.
81 Id. at 198.
82 Id. at 193.
83 Id. at 199. Chang rejects the notion that immigration causes economic disadvantages to the state of origin, and claims that if it does, these disadvantages can be overcome. According to Chang, this is not a good enough reason to restrict immigration. See Chang, Howard F., The Economics of International Labor Migration, 41 Cornell Int'l L. J. 1, 6, 22–23(2008)Google Scholar.
84 Brock, supra note 19, at 204-05, 207 n.68.
85 Id. at 206 n.58.
86 Id. at 201.
87 Id. at 197.
88 Id. at 208 n.71
89 Id. at 208.
90 Id. at 193. See also Pogge, Thomas, Migration and Poverty, in Citizenship and Exclusion 12 (Bader, Veit ed., 1997)Google Scholar. Pogge, also a cosmopolitan who believes that rich states should assist needy foreigners and that distributive justice is a global issue, takes the same approach as Brocks regarding immigration. He calls upon the wealthy states to assist the poor in their state of origin rather than open their borders to immigrants. He writes:
rather than try to get our compatriots to support admitting more needy foreigners and to support equal citizenship for foreigners already here, we should instead try to enlist them for other moral projects with regard to which our mobilizing efforts can be much more effective..…those who accept a weighty moral responsibility toward needy foreigners should devote their time energy and resources not to the struggle to get more of them admitted into the rich countries, but rather to the struggle to institute an effective programme of global poverty eradication.
Id. at 13, 14.
Pogge's reasoning is interesting. He believes that for every person that we admit into a rich country there will be thousands left in desperate need, and it will usually not be the most needy who will emigrate since some money and capacity are needed in order to move to another country. He also mentions that it is psychologically easier for us to admit aliens who stand in front of our borders than to assist the poor of the world whom we do not confront directly. We also tend to believe that real assistance can only be given within our state and according to our values. Pogge believes that this is a wrong approach and that the correct approach is to try to reduce poverty in the states of origin where help will be given to the most needy. See id. at 14, 22-24.
91 Brock, supra note 19, at 193–94.
92 Id. at 211-12.
93 Id. at 53.
94 Id. at 193. Pogge supra note 90, at 18–22, suggests transferring assistance to the needy through international bodies such as UNICEF and avoiding giving money directly to corrupt governments.
95 Meilaender, Peter C., Liberalism and Open Borders: The Argument of Joseph Carnes, 33 Int'l Migration Rev. 1062 (1999)CrossRefGoogle Scholar.
96 Carens, Joseph H., Realistic and Idealistic Approaches to the Ethics of Migration, 30 Int'l Migration Rev. 156, 167 (1996)Google Scholar.
97 Carens, supra note 49, at 255, 256, & 262. See also Pogge, Thomas, The Incoherence Between Rawls's Theories of Justice, 5 Fordham L. Rev. 1739, 1755–56 (2004)Google Scholar; Beitz, supra note 32, at 124–136, 143–53; Beitz, supra note 70, at 591–600. For a different view which supports and defends Rawl's distinction between global and local justice, see Macedo, supra note 22. at 1721–29.
98 Carens, supra note 49, at 244.
99 Id. at 99.
100 Id. at 251. See also Christiano, Thomas, Immigration, Political Community and Cosmopolitanism, 45 San Diego L. Rev. 933 (2008)Google Scholar.
101 Carens, supra note 49, at 270.
102 Id. at 258.
103 Id. at 262.
104 Id. at 259-60.
105 Supra, text adjacent to notes 83–90.
106 Carens, supra note 49, at 261.
107 Id. at 260.
108 Christiano, supra note 98, at 950.
109 Id. at 935.
110 Carens, supra note 49, at 260.
111 Id. at 262.
112 Id. at 266-68.
113 Id. at 271.
114 Carens' theory on open borders was criticized by Peter Meilaender who asserts that Carens's argument rests upon an unexplained concept of liberalism that he himself does not defend. The problem with his argument is twofold: 1) Not all liberals agree with Carens that liberalism asserts open borders. Rawls himself is considered to be a liberal who still adheres to the view that a people has a qualified right to limit migration. 2) Even if we agree that liberalism includes freedom of movement into a state, Carens' argument is not intended as an argument for open borders per se, but simply as an argument that liberals should support. See Meilaender, supra note 95, at 1078-79.
115 Carens, Joseph H., Immigration and the Welfare State, in Democracy and the Welfare State 207, 227 (Gutman, Amy ed., 1988)Google Scholar.
116 Supra note 96.
117 Id. at 156.
118 Id. at 157.
119 Id. at 158–60.
120 Id. at 160–64.
121 Id. at 165–66.
122 Id. at 169.
123 Id. at 168.
124 Pogge, supra note 90, at 25.
125 Nagel, supra note 65, at 130, 131.
126 Id. at 130.
127 Id. at 127.
129 Id. at 146.
130 Id. at 145–47.
131 Chang does not agree with Nagel and argues that
even if we assume that the absence of cosmopolitan state implies some limits on global distributive justice, however, this absence would not justify immigration restrictions that neglect principles of global distributive justice. After all, the admission of any given set of immigrants would make us “responsible for their governance” as well as responsible for their welfare. Upon joining our society, the immigrant could agree to the same terms of the social contract as the native born into our society. Why should our inability to govern immigrants prior to admission justify our failure to consider their welfare in the admission decision, as long as we can govern them after admission?
Chang, supra note 83, at 21.
132 Nagel, supra note 65, at 132.
133 Id. at 129–30.
134 See supra, text adjacent to notes 125–127.
135 Id. at 130.