Open borders and freedom. Immigration as a human right.

If freedom of movement within a state is regarded as a human right should the freedom of movement across state borders also be regarded as such?

It can be argued that the right to move across state borders should logically follow on from the near universally respected practice of regarding the freedom of movement within state borders as a human right. The right to move freely within a given state is recognised to be an important freedom, one that we value because this freedom may be potentially important in shaping how we choose to pursue our life options, giving us the ability to follow economic opportunities, personal relationships, family life, and cultural or religious interests etc. Migration across state borders may also play this same important role in shaping our life plan, so therefore the right to immigrate should be given the same protections as it may play an equally vital role in the development of our interests. The reasons for wanting to protect freedom of movement within a state turn out to be the same reasons for wanting to have freedom of movement across state borders. Historically, when there have been cases of regional communities wanting to stop intra-national migration, as in the great depression when Californians wanted to prevent Oklahomans from entering their state, enacting such restrictions was seen as a denial of an important human right.[1] Such internal migrations can involve a great number of people and place strains on the receiving communities, yet the need for freedom of movement within a state is seen to trump the desire of local political communities to exclude migrants. So the question to be answered is why restrictions on internal movement are seen as a breach of rights but movement across international boundaries is not. Examining the argument presents us with a horned dilemma; either restrictions on internal movement do not represent a violation of rights, or it has to be accepted that the need to travel across international borders is as morally significant as the need to cross internal boundaries.

Using what has been called ‘the cantilever strategy’ by Joseph H Carens, we can proceed by attempting to show how closely analogous the new right (the right to immigrate across state borders) is with an already accepted right (the right to migrate within a state). The goal is not to provide arguments supporting the already commonly accepted right, but to persuade by demonstrating the close similarity between the prospective right and the preexisting one. How well the strategy succeeds rests entirely on how strong the analogy is taken to be. This strategy is similar to one that has often been used in campaigns against other forms of discrimination, such racism, sexism and discrimination based on sexual preference. An already widely accepted moral principle is used to argue against another widely held belief or practice with the hope of undermining the later and expanding a claim to rights into a new area. We can examine how successful the cantilever argument is by seeing how analogous the need for a right to cross border migration is to the need to other accepted rights.

Keiran Oberman has suggested that the reason that leads to a human right being recognized as such is because it is “grounded in universal interests significant enough to generate duties on the part of others”. The interests that the right to freedom of movement protects are both personal and political ones. The personal interest comes from the need to have access to the full possible scope of life options when making ones life plan. “By ‘life options’ I mean those options that give our lives meaning and purpose: friends, family, civic associations, expressive opportunities, religions, jobs, and marriage partners.” If we don’t have full access to all the regions of a state then our ability to fully pursue a full range of life options will not be available to us, being barred from entering a region of a state means being barred from almost all the life options that are situated within that region. The political interest come from the fact that full political participation requires freedom of movement, since to be able to freely associate, organise, attend rallies, discuss and gather information people have to be able to travel to other regions. Even if we assume that people do not have a right to political participation in foreign states, in an era of high interconnectedness and global problems such as climate change it is essential that citizens from different states are able to meet, discuss and organise. While it is true that modern telecommunications make it possible to conduct projects over distance these kinds of technologies are not a replacement for the richness of direct human contact in both personal and political contexts. “A society in which people are kept under house arrest, but enjoy excellent broadband, is not a free society”.

Once a person is within the borders of a state it is generally accepted that they should have freedom of movement within the boundaries of that state, regardless of if they are a citizen of that state or not. Freedom of movement is seen as being important enough to be regarded as a universal right, not as a membership specific right such as the right to social security or the right to vote. If the purpose of protecting freedom of movement is to protect access to life options and to enable full political participation, then this freedom must be extended to movement across state borders as well as movement within them, as the reasons for wanting to travel between states are the exact same as those for wanting to move within a state.

Objections to the cantilever strategy:

The ‘adequate range’ objection
David Miller has argued that what is important is not the ability to freely move across state borders but the presence of an adequate range of opportunities to enable one to have decent range life choices. So long as an adequate range of life options are available within a state no rights would be violated in its members were prevented from travelling outside of it. However, if all that is important is that an adequate range of opportunities be available then this would suggest that full freedom of movement within a state would not be necessary as well. If an adequate range of opportunities can be provided within a single region of a state, and that is all that matters, then it would seem that a state would not be doing wrong if it were to limit movement to within that region. This seems at odds with our normal understanding of human rights and it is because, as suggested by Oberman, the purpose of human rights is to protect peoples access to a full, and not just an adequate, range of life options. If human rights were settled by reference only to an adequate range of life options; “The government could burn books in the town square, without any violation of the right to freedom of expression, as long as there was an ‘adequate’ range of books left on the shelves. Public meetings could be shut down and social clubs closed without any violation of the human right to freedom of association, as long as an ‘adequate’ range of meetings and clubs remained open”, suggests Oberman.

We can examine what is wrong with the ‘adequate opportunities’ view by considering the ways in which people relate to life options. People’s life options can be thought of as taking the form of attachments – that is life options that we actually have formed an attachment to, family, religion, career etc – and possibilities, that is any other possible life option that we have not become attached to but could possibly become attached to at some point in the future. Human rights exist to protect access to possibilities as much as they do attachments. Conscience, independence and political liberty all require that we be free to examine our current attachments to life options and to change them should we so desire. To be able to freely do this means to be able to choose from a potentially full range of options, not from a narrower limited but ‘adequate’ range as determined by state restrictions. If democratic decisions are to genuinely reflect the interests of citizens, these decisions must have been reached by citizens having access to the full range of political liberties rather than a narrower range that has been pre-approved by the state. Conscience is not only the ability to act according to ones values but also the ability to change ones mind, values or religion, it requires the ability to be able to freely reconsider ones currently held values and that requires political freedom. Political freedom means more than having the freedom to follow our existing beliefs and attachments, it also means having the freedom to be able to explore the options that lie outside of them and especially those that are the most distantly removed.

Since the ‘adequate range’ objection would actually entail rejecting the commonly accepted human right of freedom of movement within a state – since according to this view a state would be committing no wrong if it blocked freedom of movement within its boundaries so long as all had access to a sufficient range of opportunities within the area they were allowed to travel – there seems no reason to accept it. The cantilever argument works by attempting to show a close analogy between a prospective right and one that is commonly accepted. The cantilever can be challenged by demonstrating that there is a dis-analogy rather than similarity. Questioning the validity of the commonly accepted right does not undermine the cantilever as such, since the cantilever is concerned with what follows if commonly accepted right x is analogous to y, not the status of x being a commonly accepted right in the first place. Wanting to deny that freedom of movement within a state is a necessary right, in order to argue that freedom of movement across national borders should not be a right, does not seem like a move many would be willing to accept on reflection.

Differences in interest between moving within and outside a nation.
Another way to argue against the cantilever could be to argue that the interest in freely moving within a state is fundamentally different to the interest in wanting to travel between states. The need to travel within ones own state is of vital importance, while the need to travel across state borders is only a preference representing only a weak interest not strong enough to classed as a right. This argument does not sidestep the cantilever as in the preceding argument, instead it attempts to show how the two cases of movement are dissimilar, if this argument succeeds then the cantilever fails.

The majority of the connections that a person forms are likely to be within their home state, as it is here that they have built social relationships, share a common language and culture, and are part of a political community. So it may seem we have good reasons to think that freedom of travel within a state is more important than freedom of travel between states. But once we begin to consider the differences between states and the effects these differences have on the people living within them this argument begins to look less strong. Some states cover vast near continental sized areas and have large populations with high levels of wealth, while some states are small isolated islands with low populations and high poverty. If all nations had a similar geography and could potentially offer the same array of life options then the argument would have force, but this is far from the actual situation of the world. If human rights are supposed to protect vital interests and freedoms, what sense does it make to say that the citizens of a vast rich nation have a vital interest in being able to access the broad range opportunities across a large geographical area, while the citizens of the smaller nation only have a vital interest in accessing the diminished range of options available in their smaller territory? If the purpose of free movement is to protect access to a full range of vital life interests it seems arbitrary to think that these interests expand or diminish according to the size of the state that a citizen resides.

Internal movement and citizenship
Free movement within a state is linked to citizenship, international movement is not. The claim here is that the right to move around within a state is a membership specific right and not a general human right. However, in practice and in theory, freedom of movement within a state is something that is not restricted only to citizens. In democratic states all visitors as well as temporary and permanent residents are allowed to move within the state’s boundaries as they please. For this argument to work, the desire would have to be for freedom of movement to be transformed from a general to a membership specific right, such a move would be against democratic values since it would create a two tier society. This does not seem plausible, so this argument cannot be used against the cantilever strategy. This criticism also falls outside the scope of the cantilever, since it turns out to be not based upon the commonly accepted conditions of internal free movement as a human right.

Internal movement as a means of protecting minorities
Free movement within a state can serve to protect minorities from persecution, in a way that international movement does not. This argument has also been advanced by David Miller. Miller claims that the reasons that free movement within the boundaries of a state are protected are political ones, a state may wish to control certain groups by placing restrictions on their movement and the right to free movement exists to prevent this. Historical examples include apartheid South Africa and the Jewish ghetto, where repressed minorities were deliberately concentrated in certain areas and prevented from access to the whole of a territory. A general right to free movement means that such measures cannot be enacted and so minorities are protected from this particular type of oppression. Miller argues that restrictions on international immigration do not pose the danger of being exploited in this way, as refusal of entry to a particular state cannot lead to a particular group being trapped within a certain area, the group can seek entry elsewhere. By restricting movement over its borders a state is not exercising control over any one group in particular.

We can counter this by considering a hypothetical situation. Suppose a small state is surrounded on all sides by a larger singular state. On Millers account, and on the current conventional view of immigration, the larger state would not be violating any rights if it refused entry to a minority group seeking entry, yet for the minority group the effect would be the same as a restriction on internal movement – they are prevented from following their life options outside of a particular area. Here the external state actually is playing a role in the domination of the minority group. The same would hold if the small state was surrounded by several other states, all of whom refuse entry to the minority, their refusals amount to a form of coercion. [2]

Concentrating groups in to areas and disallowing them from travelling outside is seen as an injustice because it is seen as an unreasonable restriction on access to life options. These reasons can apply to international travel too. Ethnic, religious, social, cultural and political interests do not map neatly onto the boundaries of nation states – it seems somewhat arbitrary to declare that something is not a significant interest just because it happens to occur outside the territory of a particular home state. Millers’ unstated assumption is that connections or interests outside of our home state matter less than those inside it. This is one of the assumptions that the open borders argument aims to be bring into question.

As a historical explanation of the origins of regarding freedom of internal movement as a human right Miller’s claim does not seem to stand up to the evidence. The reasons that freedom of movement within a state came to be regarded as a human right do not seem to be the ones that Miller claims, the right would be more specifically focussed if that were the case. Even if an effect of free internal movement is an ability for minorities to escape from certain kinds of persecution, there seems nothing in the argument that goes against the principle of extending the right further.

Conclusion
As an argument the cantilever strategy provides a provisional reason for wanting to accept freedom of movement across state borders as a human right. The freedom of movement within a state is regarded as important enough to be protected as a human right because without this right it is not possible to access the full range of life options necessary to autonomously develop ones life plan, freedom of movement across borders is related to these same interests and so it would seem that we have good reason to want to have this right also protected. But the cantilever is only part of the story. It could be that the argument is sound, and it is hoped this article has demonstrated that it is, but that we have other reasons for not wanting total freedom of movement. No right is absolute, and so there could be other reasons for wanting to restrict immigration; for example, to protect culture or social cohesion. Another import consideration is the freedom to not have to move in the first place, most people would prefer to stay where they have connections and only move because conditions force them to, the relationship between migration and global inequality is an important one to investigate. The question of whether or not these other arguments defeat the ones for freedom of movement will have to be considered elsewhere.

DARREN POYNTON

[1] It could be argued that, as the USA is a union of states, democracy exists at state and not federal level and that therefore there is only a freedom of movement within states not between them. However, this anti-federalist argument is about where the political borders of a state are and not one directly about movement across borders. If we conceive of California and Oklahoma as separate states the reasons we give for wanting free movement within each state will still be the same as the reasons for wanting to travel between them. If movement across California is import enough to be granted as a human right, why not movement between California and Oklahoma?

[2] It is true that a state can allow passage, but not allow access to its territory, by allowing air-traffic to pass over it’s territory. However this seems outside of the scope of the premise being tested. Borders are generally thought of as extending up into airspace and down into subterrainia. The premise is that states do no wrong when they close their borders, so by extension this must also mean that they do no wrong by denying access to their airspace. If states are obliged to offer access to their airspace for purpose of passage then it would seem that they would be at least be obliged to offer land passage if air passage was not viable. If we argue that states are obliged to offer any kind of passage then we are arguing that states do not have absolute discretion in border control.

References
Carens, J H. (2013) The Ethics of Immigration, Oxford University Press
Carens, J H., (2000) Culture, Citizenship, and Community : A Contextual Exploration of Justice As Evenhandedness, Oxford University Press
Carens, J H. (2010) Immigrants and the Right to Stay, MIT Press
Miller, David (2016) Strangers In Our Midst: The Political Philosophy of Immigration, Harvard University Press
Oberman, Kieran (2011) Immigration, Global Poverty and the Right to Stay. Political Studies Vol 59, 253-268
Oberman, Kieran (2016) Immigration as a Human Right. In - Fine, Sarah and Ypi, Lea (eds) Migration in Political Policy (2016)

Image credit: "FREE THE BORDER CHILDREN mural - Venice Beach, California" by Chris Goldberg is licensed under CC BY 2.0