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THE RIGHTS OF MIGRATION

Published online by Cambridge University Press:  22 May 2014

Colin Grey
Colin Grey*
Affiliation:
Legal Advisor
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Abstract

This paper argues that neither a general right to exclude migrants nor a general right to migrate freely exists. The extent of the right to exclude or the right to migrate freely must instead, in the majority of cases, be determined indirectly by examining whether a given immigration law or policy would result in the violation of migrants’ basic rights. Therefore states’ right to exclude migrants is constrained by what the author calls the indirect principle of freedom of migration. Under this principle, if an immigration law or policy cannot be imposed without violating a migrant's basic rights, then the law or policy cannot be legitimately implemented. The argument for this principle is undertaken both conceptually and substantively. It is then defended against the objections that on the one hand, it may not have enough critical force, and on the other, it may be overly restrictive of states’ power to exclude migrants.

Type
Research Article
Information
Legal Theory , Volume 20 , Issue 1 , March 2014 , pp. 25 - 51
Copyright
Copyright © Cambridge University Press 2014 

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References

1. A note on terminology: a “member,” as used here, is someone who “belongs” to a state in some morally relevant way. A “migrant” or “immigrant” is someone who seeks to move from a state where he or she belongs (i.e., is a member) into another where he or she does not belong (i.e., is not a member). Thus “immigration” here broadly encompasses all movement, temporary and indefinite, into states where one is not a member. On my usage here, members will usually be citizens, but citizens can also be migrants, because they may not “belong” to their state of formal citizenship in a morally relevant sense, perhaps because they were born or have lived a large part of their life in another state. These stipulative definitions are employed to avoid having the moral argument determined by formal legal categories.

2. Musgrove v. Chung Teeong Toy, [1891] A.C. 272 (P.C.), an early statement of the doctrine of sovereign discretion, was decided on the basis that migrants have no standing to challenge immigration laws:

Their Lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this government and her self-governing colonies.

The issue of standing comes out in debates over whether migrants have any democratic rights; see Abizadeh, Arash, Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, 36 Pol. Theory 37 (2008)CrossRefGoogle Scholar; Miller, David, Democracy's Domain, 37 Phil. & Pub. Aff. 201 (2009)CrossRefGoogle Scholar.

3. The possibility that the interests of migrants might be given less weight is a result of the debate over global justice; see Scheffler, Samuel, The Conflict between Justice and Responsibility, in Nomos XLI: Global Justice 86 (Shapiro, Ian & Brilmayer, Lea eds., 1999)Google Scholar; see, more generally, Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (2001).

4. “Classically states have been considered to have complete sovereign authority over a defined territory and population. International human rights law and other treaty obligations, both bilateral and multilateral, have made inroads into the sweep of this sovereign authority. . . . The underlying principle or default rule remains, and the restrictions on state authority arise by way of exception.” Martin, David A., The Authority and Responsibility of States, in Migration and International Legal Norms 31–32 (Chetail, Vincent & Aleinikoff, T. Alexander eds., 2003)Google Scholar.

5. Can. (Att'y Gen.) v. Cain, [1906] A.C. 92 (P.C.), [¶6]. Cain continues to be cited; see R v. Immigr. Officer at Prague Airport and Another, [2004] UKHL 55, [¶12] (Lord Bingham); R (on the application of Bancoult) v. Sec'y of State for Foreign and Commonwealth Aff., [2008] UKHL 61, [¶152] (Lord Mance); Chu Kheng Lim v Minister for Immigr., Local Gov't & Ethnic Aff. [1992] HCA 64, ¶27 (Austl.) (Brennan, Deane, and Dawson, J.J.); Re Minister for Immigr. and Multicultural Aff.; Ex Parte Te [2002] HCA 48, ¶21 (Austl.) (Gleeson, C.J.); Kindler v. Can. (Minister of Justice), [1991] 2 S.C.R. 779, ¶133 (Can.) (Binnie J, concurring); Mitchell v. Can. (Minister of Nat'l Revenue), [2001] 1 S.C.R. 911, ¶¶108–109 and 160 (Can.) (La Forest, J., concurring).

6. Other cases include Musgrove, supra note 2. In the United States context, the triumvirate of cases most often cited are Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (the Chinese Exclusion Case) (“The power of exclusion of foreigners being an incident of sovereignty . . ., the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) (“The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”). For the foundational nature of these cases, see Richard Plender, International Migration Law (2d ed. 1988), at 2.

7. I use the law in two ways in this paper. Here, I draw on certain statements in the case law to exemplify a legitimacy claim that, I believe, still underlies aspects of immigration law and policy in many, if not all, states. Below, in Section VI, I draw on cases and other legal instruments to exemplify considered judgments about which rights states or migrants have. To the extent I may be understood to defend a particular view of the law, it is not that pronouncements like those in Cain continue to provide an accurate statement of the law, although I do believe that the demise of this doctrine is overstated. Rather, my view is that if this doctrine has been replaced or undermined—as the proliferation of rights claims available to migrants may suggest—then we are faced with puzzles on two normative planes: legal and moral. The legal puzzle is to describe the doctrine that has replaced absolute discretion. The moral puzzle is to describe the legitimacy claim underlying this alternative doctrine. The indirect principle is directed at this second, moral puzzle. I am grateful to Michael Blake and the anonymous reviewer for urging me to clarify this point.

8. The example is not, however, so absurd as to have been overlooked by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 9, opened for signature Dec. 18, 1990, A/RES/45/158 (entered into force Jul. 1, 2003), which protects the right to life of migrant workers and their families.

9. The troubling implications of the absolutist doctrine are, surprisingly, pointed out by Justice Stephen Field in Fong Yue Ting, supra note 6, at 756 (Field, J., dissenting):

According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean and put them into a boat and set them adrift; or to take them to the borders of Mexico and turn them loose there; and in both cases without any means of support; indeed, it might have sanctioned towards these laborers the most shocking brutality conceivable.

This is surprising, because Justice Field wrote the majority in the Chinese Exclusion Case, supra note 6. See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 226–227 (1953) (Jackson, J., dissenting):

Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law.

10. The greatest conceivable, though not plausible, challenge would be one that afforded members’ interests no weight compared to those of migrants, as in some invasions.

11. For the idea that there is a trade-off between rights and control, see Ruhs, Martin & Martin, Philip, Numbers versus Rights: Trade-Offs and Guest Worker Programs, 42 Int'l Migration Rev. 249 (2008)CrossRefGoogle Scholar.

12. For ease of reference, I reproduce Hohfeld's table of jural relations:

See Hohfeld, Wesley Newcomb, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913), at 30CrossRefGoogle Scholar. Although Hohfeld referred to privileges, I substitute “liberty,” as most do; see, e.g., L.W. Sumner, The Moral Foundation of Rights (1987), at 25 n15.

13. Hohfeld does not use the term “second-order,” but, again, many of his interpreters do: see Sumner, supranote 12, at 27ff; Matthew H. Kramer, Rights without Trimmings, in M.H. Kramer, N.E. Simmonds & Hillel Steiner, A Debate over Rights: Philosophical Enquiries 20 (2000); Wenar, Leif, The Nature of Rights, 33 Phil. & Pub. Aff. 223 (2005)CrossRefGoogle Scholar.

14. Wenar, supra note 13, at 231. One can have power or authority to change the normative situation of others in ways other than by altering their rights, but these other forms of power or authority are not the concern here.

15. I take “hang together” from Jeremy Waldron, Dignity, Rank, and Rights (2012), at 73 n34; Waldron is discussing legal status, not rights. The idea described in this paragraph of how various entitlements unite to form a right is similar to that developed in Carl Wellman, Real Rights (1995).

16. The all-things-considered scheme of reasoning is a resource for the justification of the individual entitlements contained in the rights of migration, broadly speaking, as well as a way of understanding how those individual entitlements hang together. I am influenced here by the approach to the justification of rights set out in T.M. Scanlon, Rights, Goals, and Fairness, inThe Difficulty of Tolerance 26 (2003). Under Scanlon's approach, the justification of a right involves:

(i) An empirical claim about how individuals would behave or how institutions would work in the absence of this particular assignment of rights (claim-rights, liberties, etc.). (ii) A claim that this result would be unacceptable. . . . (iii) A further empirical claim about how the envisaged assignment of rights will produce a different outcome.

Id. at 35. Scanlon initially described his approach to the justification of rights as consequentialist because “it holds rights to be justified by appeal to the states of affairs they promote”; id. Another clear statement is found in T.M. Scanlon, Human Rights as a Neutral Concern, inThe Difficulty of Tolerance 115–117 (2003). Scanlon later recharacterized his approach in contractualist rather than consequentialist terms:

In order to decide what rights people have, we need to consider both the costs of being constrained in certain ways and what things would be like in the absence of such constraints, and we need to ask what objections people could reasonably raise on either of these grounds. But the fact that claims about rights, like other moral claims, need to be justified in this way, does not make rights morally derivative, or mere instruments for the production of morally valuable states of affairs.

T.M. Scanlon, Introduction, in The Difficulty of Tolerance 4 (2003). Although I refrain from committing myself to Scanlon's contractualist formula of reasonable rejection, my aim is to set out a general scheme that allows for the justification of migration-related rights in terms of the reasons that might be offered for or against such rights. These reasons may include some that would be considered consequentialist, such as the well-being of all those involved, but may include other kinds of reasons as well. Even if one relied on some nonconsequentialist reason, such as autonomy or human dignity, when seeking to justify a claim to a right of migration, it would have to be explained why this reason could vindicate a right in the face of countervailing concerns. Note that one effect of casting Scanlon's account of the justification of rights in nonconsequentialist terms is that the third step in his account of rights justification will not necessarily require a showing that a given right leads to a better overall state of affairs, in terms of, say an increase in overall well-being. I note also that in a recent essay, Leif Wenar criticizes Scanlon's conception of rights as unduly limited to important rights that constrain others, when some rights are unimportant and some do not constrain; see Leif Wenar, Rights and What We Owe to Each Other, J. Moral Phil. (forthcoming). I agree with Wenar. Scanlon's approach to the justification of rights, particularly by attention to how institutions would behave absent some entitlement, seems more suited to claim-rights than liberties or powers. In Section VI, I seek to follow Scanlon's approach to the justification of claim-rights. Elsewhere, the justification of powers and liberties, while relying on the same scheme of all-things-considered reasoning, does not follow Scanlon.

17. Bruce Ackerman, Social Justice in the Liberal State (1980). Ackerman is generally considered an advocate of open borders, yet he argues that states can restrict immigration in order to preserve “the entire liberal conversation that guarantees the rights of all existing citizens”; see id. at 95. I am grateful to Legal Theory’s anonymous reviewer for urging clarification.

18. Macedo, Stephen, The Moral Dilemma of U.S. Immigration Policy: Open Borders vs. Social Justice?, in Debating Immigration (Swain, Carol ed., 2007)Google Scholar; Isbister, John, A Liberal Argument for Border Controls: Reply to Carens, 34 Int'l Migration Rev. 629 (2000)Google Scholar.

19. Michael Walzer, Membership, inSpheres of Justice: A Defense of Pluralism and Equality (1983); Kymlicka, Will, Territorial Boundaries: A Liberal Egalitarian Perspective, in Boundaries and Justice: Diverse Ethical Perspectives 259 (Miller, David & Hashmi, Sohail H. eds., 2001)Google Scholar.

20. Wellman, Christopher Heath, Immigration and Freedom of Association, 119 Ethics 109 (2008)CrossRefGoogle Scholar. Wellman argues that states enjoy a right to exclude as an incident of citizens’ association rights, which he grounds on the value of self-determination. But as Joseph Raz writes, “[a]ssertions of rights are typically intermediate conclusions in arguments from ultimate values to duties.” Joseph Raz, The Morality of Freedom (1986), at 181. Although Wellman's argument is novel, he is ultimately pitting the underlying value of self-determination, which is said to underlie citizens’ right of association, against the value of migration in asserting that there is a power to exclude.

21. Miller, David, Immigration: The Case for Limits, in Contemporary Debates in Applied Ethics 201–202 (Cohen, Andrew I. & Wellman, Christopher Heath eds., 2005)Google Scholar.

22. Carens, Joseph, Migration and Morality: A Liberal Egalitarian Perspective, in Free Movement: Ethical Issues in the Transnational Migration of People and of Money 28–30 (Barry, Brian & Goodin, Robert E. eds., 1992)Google Scholar; Carens, Joseph, Aliens and Citizens: The Case for Open Borders, 49 Rev. Pol. 251 (1987)CrossRefGoogle Scholar, at 268. Like Ackerman (see Ackerman, supranote 17), Carens is seen as a defender of open borders; indeed, he is often held up as their chief advocate. Also like Ackerman, however, Carens makes concessions allowing for certain restrictions. Again, I am grateful to the anonymous Legal Theory reviewer for urging clarification.

23. But not unreservedly true. The immigration regimes of most states include elaborate bureaucracies for individual adjudication as well as discretionary provisions allowing for exceptions to general rules of admissibility or exclusion. (For a discussion in the U.S. context, see Kanstroom, Daniel, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703 (1997)Google Scholar.) It would be most accurate to say that most immigration regimes in some way combine categorical policy-making and individual decision-making. The argument is that the categories created by immigration policies must be sensitive to the value of migration to the individual.

24. Chae Chan Ping, supra note 6, at 606.

25. Strang, Colin, What If Everyone Did That?, in Ethics 151 (Thomson, Judith J. & Dworkin, Gerald eds., 1968)Google Scholar.

26. Waldron, Jeremy, Theoretical Foundations of Liberalism, 37 Phil. Q. 127 (1987), at 135CrossRefGoogle Scholar:

[T]he liberal insists that intelligible justifications in social and political life must be available in principle for everyone, for society is to be understood by the individual mind, not by the tradition or sense of a community. Its legitimacy and the basis of social obligation must be made out to each individual, for once the mantle of mystery has been lifted, everybody is going to want an answer.

John Rawls, Lectures on the History of Political Philosophy (2007), at 13:

A legitimate regime is such that its political and social institutions are justifiable to all citizens—to each and every one—by addressing their reason, theoretical and practical. Again: a justification of the institutions of the social world must be, in principle, available to everyone, and so justifiable to all who live under them. The legitimacy of a liberal regime depends on such a justification.

The use of the word “citizens” in the passage from Rawls of course requires scrutiny. I doubt liberalism can be restricted in this way.

27. For the idea that rights have a “core,” see Carl Wellman, supra note 15, at 8.

28. The other components of the power asserted in Cain might include (1) the imposition of duties on migrants to obey the exercise of the power; and (2) the power to carry out all enforcement or other related actions to implement a preferred policy.

29. Ryan Pevnick, Immigration and the Constraints of Justice (2011), at 23.

30. For an argument of this type, see Michael Walzer's discussion of the White Australia policy in Walzer, supranote 19, at 47.

31. As a final note on the implausibility of the absolutist stance, it is unlikely that a state would have the power to admit migrants whose immigration would cause great injury to its members. Where immigration's disvalue to the state is significant and clearly outweighs the value of migration to the migrant, a government likely has a duty to its members to exclude. So the absolutist model seems suspect even from the perspective of a state's members.

32. There are obvious alternatives—such as leaving the judgment to individual migrants, downloading the right to substate jurisdictions, or uploading it to international or transnational organizations—and, I am sure, some nonobvious ones as well. Since this is not necessary to my argument, I offer here only two reasons that, it seems to me, must feature in the justification of assigning the power of exclusion to states. The first, epistemic reason is that states, including their members and officials, are likely in the best position to decide how to protect the valuable goods associated with states. A second, motivational reason is that states, including their members and officials, have the most at stake in making such judgments. I make no claim that these reasons provide definitive justification. In particular, they may not be definitive because, as I explain below, states or their officials might be expected systematically to undervalue migrants’ interests. The case for states enjoying the power to say when there is a claim-right to exclude may depend on an argument that the expected biases of state officials will be less damaging than the expected biases of other possible holders of this entitlement.

33. Thus I do not make the further claim that the need for coordination establishes political obligation; see John Finnis, Natural Law and Natural Rights (1980). The argument in this paper makes no claim regarding what obligations of obedience or otherwise migrants might have toward the immigration regimes of receiving states. I examine only, rather, the limits of legitimate immigration control. I recognize that the extent to which questions of legitimacy and political obligation can be treated separately is a controversial question and that by setting aside the question of political obligation, I leave open the possibility that a state exercising its right to exclude can be owed obedience even if it acts illegitimately. For what it is worth, I believe that this is not the case. Although I cannot pursue the point here, my view is that migrants owe political obligations toward immigration regimes only to the extent that they strive to be just, under suitably defined institutional conditions. For an argument along these lines, see Bas Schotel, On the Right of Exclusion (2012), ch. 5.

34. Kramer, supranote 13, at 11.

35. The claim-rights may be said to provide a “protective perimeter”; Hart, H.L.A., Legal Rights, in Essays on Bentham: Studies in Jurisprudence and Political Theory 171 (1982)Google Scholar. For other references to this idea, see Kramer, supranote 13, at 12 n3. While the protective claim-rights are most easily conceived as claim-rights against interference, they may also be claim-rights to other forms of protection or indeed other forms of entitlements that may offer protection.

36. As Hohfeld puts it, “Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits”; Hohfeld, Wesley N., Some Fundamental Legal Conceptions as Applied in Juridical Reasoning, 23 Yale L.J. 16 (1913), at 36CrossRefGoogle Scholar. See also Kramer, supranote 13, at 10ff; Carl Wellman, supra note 15, at 13; Raz, supranote 20, at 168–169.

37. For the distinction between direct and indirect arguments, see Kramer, supranote 13, at 12 n3. Carl Wellman proposes a distinction between the “inclusive” and “piecemeal” grounding of rights. A moral right is grounded inclusively when the moral grounds of its core include all the grounds of its associated elements; it is grounded piecemeal when the grounds of its associated elements are distinct; see Carl Wellman, supranote 15, at 79. Wellman's distinction imperfectly maps onto the one I propose.

38. Hart says such liberty-rights may be protected by a “strictly correlative obligation not to interfere by any means with a specific form of activity.” Hart, Legal Rights, supranote 35, at 172; but see also id. at 190–193. Hart's claim may be misleading if it is meant to suggest that such rights do not ultimately give way to the same kind of analysis that he and Hohfeld apply to less celebrated forms of liberty. It just happens that the most widely accepted civil and political liberties enjoy sufficient protective entitlements that their guarantee can seem complete.

39. Kramer, supranote 13.

40. See Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (1980), at 78–82. Shue confines his argument to a right of free movement within a society.

41. Carens, Aliens and Citizens, supra note 22, at 258. More expansively, Carens writes (Id.):

Even in an ideal world people might have powerful reasons to want to migrate from one state to another. Economic opportunities for particular individuals might vary greatly from one state to another even if economic inequalities among states were reduced by an international difference principle. One might fall in love with a citizen from another land, one might belong to a religion which has few followers in one's native land and many in another, one might seek cultural opportunities that are only available in another society. More generally, one has only to ask whether the right to migrate freely within a given society is an important liberty. The same sorts of considerations make migration across state boundaries important.

42. Waldron, Jeremy, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. Cal. L. Rev. 1097 (1988–1989), at 1106–1107Google Scholar.

43. David Miller argues, for example, that “[w]hat 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.” On this basis, he concludes there is no general right of migration. See Miller, Immigration, supra note 21, at 196.

44. Can such an argument be made by saying that a general right of migration needs to be guaranteed in order to protect those particular cases where migration is most urgent? I do not think so, because carve-outs for urgent cases seem feasible.

45. Miller, Immigration, supra note 21, at 194.

46. Use of the phrase “considered judgments” invokes reflective equilibrium, John Rawls's coherentist method for reaching objective moral judgments. Despite the heated rhetoric that characterizes the politics of immigration, I believe widespread agreement does hold with respect to some issues, as reflected in international legal instruments, in patterns found in the immigration laws or policies of several countries, or simply in what I anticipate will be common reactions to certain actions by governments when enforcing immigration laws. Thus in this section I draw on the law not to demonstrate a certain legitimacy claim, as in Section II, but as evidence of considered judgments. For discussions of reflective equilibrium, see John Rawls, Outline of a Decision Procedure for Ethics, in Collected Papers 1–19 (1999); John Rawls, A Theory of Justice (2d ed. 1999), at 18–19, 42–45; Scanlon, T.M., Rawls on Justification, in The Cambridge Companion to Rawls 139 (Freeman, Samuel ed., 2003)Google Scholar. I note that, consistent with reflective equilibrium, these considered judgments are not supposed to be fixed. They, too, are subject to contestation and revision.

47. I employ the “or” here and below because I do not try to resolve the difficult question of who has the liberty right—the child or the parent. It might be thought that this judgment is too narrow, since most liberal democracies allow for admissions based on a wider range of family ties. True. But, first, most of those admissions are subject to strict requirements of inadmissibility that generally do not apply with respect to young children; second, international human rights instruments seem to protect at most only the entry of young children or their parents (see Convention on the Rights of the Child, art. 10(1), Nov. 20, 1989, 1577 U.N.T.S. 3); and, third, I am intentionally listing lowest-common-denominator judgments here. For similar reasons, I assume a narrow definition of refugees. The perspicacious reader will notice that I omit spouses from this list and also from the list below, where I discuss other possible family relationships about whom our judgments are indeterminate. That is because I am not confident that we have considered judgments about migrant spouses. On the one hand, most states provide them with rights of conditional admission (usually the conditions have to do with ensuring support and commitment between the spouses). On the other hand, David Miller's argument that “[w]hat 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” (Miller, Immigration, supra note 21, at 196; emphasis in the original) disturbs any considered judgment I might have in this regard. I am grateful to the anonymous Legal Theory reviewer for urging clarification.

48. It may seem idiosyncratic to talk of returning citizens as migrants. It is nonetheless the case that for many returning citizens, the only incident distinguishing them from other would-be immigrants is possession of a formal status, and sometimes states do seek to bar their return. Indeed, international rights instruments protect the right of return for citizens precisely because from time to time such citizens face the arbitrary deprivation of that right. For discussion, see Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (2012), ch. 1. I am again grateful to the anonymous Legal Theory reviewer for urging clarification.

49. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 85 (no expulsion to torture); Convention Relating to the Status of Refugees, art. 33, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954) (no expulsion to territories where life or freedom would be threatened); Convention on the Rights of the Child, supra note 47; Universal Declaration of Human Rights, art. 13(2), G.A. Res 217A, U.N. G.A.O.R., 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 10, 1948) (right to leave any country and return to your own country) [hereinafter UDHR]; International Covenant on Civil and Political Rights, art. 12(1), Dec. 16, 1966, S. Exec. Doc. E., 95–2 (1978), 999 U.N.T.S. 171, (no arbitrary deprivation of the right to enter his own country) [hereinafter ICCPR]. They are also supported, I think, by the reactions we would have to specific cases.

50. One might call this the Arendtian judgment that there is a right to have rights; Hannah Arendt, The Origins of Totalitarianism (1968), at 290ff.

51. Here it might be objected that the refugee category may not be small if one endorses a broader definition of refugees. Some argue (see, e.g., Shacknove, Andrew, Who Is a Refugee?, 95 Ethics 274 (1985)CrossRefGoogle Scholar) that this category should include not just those who face persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group, as the Convention relating to the Status of Refugees, supra note 49, stipulates, but a broader group of people who face general risks brought about by civil wars or climate change. Indeed, some regional instruments, such as the African Charter on Human and Peoples’ Rights, Organisation of African Unity, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (entered into force Oct. 21, 1986), and the Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia, Nov. 19–22, 1984, reflect a broader definition of refugee, and some countries offer forms of “complementary” or “subsidiary” protection based on threats to human rights not otherwise covered by the Convention relating to the Status of Refugees, supra note 49. If a broader definition of refugee is indeed, all things considered, justified, then the intuition that the numbers of refugees will remain small would be suspect. However, the narrower definition of refugees in the Convention relating to the Status of Refugees, supra note 49, enjoys far more widespread endorsement, and, again, I am aiming here for lowest-common-denominator judgments. An argument for broadening the refugee category could certainly be made. One way of pursuing such an argument would be through the indirect principle.

52. To the extent that there is disagreement about the just exclusion of dangerous migrants, it tends to focus on migrants who have established some form of residence in a state. I refer here to the migrant who appears at a border and who is uncontroversially dangerous to the receiving country. Even strong supporters of a general right to migrate freely acknowledge the justifiability of restrictions in the case of security. In the classic article defending a right to free migration, Carens says: “National security is a crucial form of public order. So, states are clearly entitled to prevent the entry of people (whether armed invaders or subversives) whose goal is the overthrow of just institutions.” Carens, Aliens and Citizens, supra note 22, at 260.

53. See, e.g., John Rawls, Political Liberalism (rev. ed. 1996), at 180.

54. Once again, these rights claims are intentionally minimal and narrow. For example, the list includes only due-process rights with respect to expulsion. This restriction reflects the further judgment that migrants facing expulsion face potentially greater injury, through the rupture of existing ties and other features of their life within a given state, and recognizes that the judgment that those seeking to come to a state also deserve due-process rights is less likely to garner consensus. I discuss the possibility of expanding the list in the next section.

55. See T.M. Scanlon, The Difficulty of Tolerance (2003), at 117, where Scanlon notes that to recognize a right against torture is not just to deplore pain and suffering. This right also “reflects the judgment that the temptation to rule in this manner is a recurrent threat and that the power to use torture is a power whose real potential for misuse is so clear as to render it indefensible.” See, generally, the discussion of Scanlon's approach to justifying claim-rights, id.

56. Rather than a detailed historical defense for each claim, examples must suffice. The tendency to achieve immigration aims by restricting due-process rights for deportees is well illustrated by measures adopted during the Chinese exclusion era of U.S. immigration policy. By the Geary Act, the U.S. Congress sought to deport any Chinese residents who did not hold a certificate of residence establishing lawful presence inside the United States since 1892. To get such a certificate required a photograph and the testimony of two (later amended to one) white witnesses. Chinese residents arrested for being uncertified had to prove they were unable to get a certificate because of an “accident, sickness or other unavoidable cause.” Further, they also had to establish lawful presence through the testimony of one white witness. By design, the Geary Act caught many Chinese residents lawfully present in the United States since 1892 but who would be unable to prove as much since they were unlikely to be able to procure the testimony of a white witness. In upholding these procedural requirements, the majority of the U.S. Supreme Court said that it was open to Congress to employ any procedures considered necessary to deport resident Chinese aliens and that Congress could, in fact, direct the removal of any Chinese person without judicial trial or examination. The Geary Act was the subject of two landmark immigration cases: Fong Yue Ting, supra note 6; and Wong Wing v. United States, 163 U.S. 228 (1896). There are large legal and historical bodies of literature on the Chinese exclusion era. A historical work that discusses the role of due-process limits as an instrument of policy is Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995).

57. Hahamovitch, Cindy, Creating Perfect Immigrants: Guestworkers of the World in Historical Perspective, 44 Lab. Hist. 69 (2003)CrossRefGoogle Scholar; Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the I.N.S. (1992). The vulnerability of migrant workers, legal and illegal, to exploitation is often recognized and is the subject of much international attention. Apart from the little-ratified International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, supra note 8, there are the specialist protocols aimed at fighting the most coercive forms of migration that result from smuggling and trafficking: see Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, GA Res 25, annex II, UN GAOR, 55th Sess, Supp No 49, at 60, UN Doc A/45/49 (vol. I) (2001), Can TS 2002 No 25 (entered into force Sept. 9, 2003); Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Crime, GA Res 55/25, annex III, UN GAOR, 55th Sess, Supp No 49 at 65, UN Doc A/45/49 (vol. I) (2001) (entered into force Jan. 28, 2004).

58. Zadvydas v. Davis, 533 US 678, 696 (2001) (“[A]n alien's liberty interest is, at the least, strong enough to raise a serious question as to whether . . . the Constitution permits detention that is indefinite and potentially permanent.”).

59. Here are two examples: (1) In 1937, Rafael Trujillo ordered the corte or “mowing down” of Haitian migrants in the Dominican Republic. This was an operation carried out by the Dominican Republic's national constabulary and Trujillo loyalists that resulted in the murder of as many as 25,000 men, women, and children who were Haitian or of Haitian descent and living in the Dominican's frontier region and northern Cibao Valley. Haitians living on sugar estates were spared. “Regardless of the dictator's intentions, no more chilling way could be imagined of conveying to Haitian immigrants that the sugar bateyes would thereafter be their only secure place on Dominican soil.” See Samuel Martinez, Peripheral Migrants: Haitians and Dominican Republic Sugar Plantations (1995), at 44–45. (2) In 1988, the Thai Ministry of the Interior issued a “pushback” order, deputizing fishermen in Khong Yai to prevent entry of any boats which might be carrying Vietnamese refugees. “During the first weeks of Thailand's pushback policy, hundreds of asylum seekers were victimized. Those who managed to evade the naval blockade or rammings by Thai fishing boats were abandoned on barren islands without food, water or medicine.” See Helton, Arthur C., Asylum and Refugee Protection in Thailand, 1 Int'l J. Refugee L. 20 (1989), at 28CrossRefGoogle Scholar.

60. For a historical account, see John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (1963).

61. General Comment No. 15: The Position of Aliens under the Covenant, U.N. H.R.C., 27th Sess, U.N. Doc. HRI/GEN/1/Rev.1 (1986) 140, ¶2.

62. Id. at ¶7.

63. UDHR, supra note 49, art. 23; International Covenant on Economic, Social and Cultural Rights, art 6(1), opened for signature Dec. 16 1966, 993 U.N.T.S. 23 (entered into force Jan. 3, 1976) [hereinafter ICESCR].

64. UDHR, supra note 49, arts. 22, 25; ICESCR, supra note 63, art. 9.

65. UDHR, supra note 49, article 25(1); ICESCR, supra note 63, art. 12.

66. UDHR, supra note 49, article 26; ICESCR, supra note 63, arts. 6(2), 13–15.

67. Jeremy Waldron, Theoretical Foundations, supra note 26 at 135.

68. Carens, Aliens and Citizens, supra note 22, at 251.