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The Rights Discourse and the Obligation of States to Admit Immigrants
Published online by Cambridge University Press: 19 March 2012
Abstract
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I argue in this Article that states have two types of moral duties with regard to their intake of immigrants. First, they have a duty to accept quotas of immigrants who have no individual rights to entrance prior to the determination of specific immigration criteria applicable in their case. Second, they have a duty to admit immigrants who are entitled to enter as individuals, namely, refugees and immigrants, who wish to enter the state for family reunification. However, under certain conditions, states could be justified in limiting the entrance of refugees and family reunification immigrants, who might eventually be eligible for naturalization by means of various qualifications and even quotas.
Initially, I defend the complex thesis stated above by rejecting two positions supported by contemporary liberal immigration theorists. One position advocates a cosmopolitan human right to immigration, namely, every single individual's right to immigrate into any country of his/her choosing. The other position claims that states have a universal right to lock their gates to immigration. Finally, I argue for the middle-ground position stated above.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010
References
1 I refer here to Carens' arguments as presented in some final drafts of chapters 9 “The Case for Open Borders” and 10 “The Claims of Community” of his forthcoming book that he kindly allowed me to read in 2009; see Joseph Carens, The Ethics of Immigration (OUP, forthcoming).
2 Blake, Michael & Risse, Matthias, Is There a Human Right to Free Movement? Immigration and Original Ownership of the Earth, 23 Notre Dame J.L. Ethics & Pub. Pol'y 133, 138 (2009)Google Scholar.
3 Wellman, Christopher Heath, Immigration and Freedom of Association, 119 Ethics 109 (2008)CrossRefGoogle Scholar.
4 Carens, supra note 1, at ch. 9.
5 Rawls, John, A Theory of Justice 213 (1971)Google Scholar; Miller, David, Immigration: The Case for Limits, in Contemporary Debates in Applied Ethics 193 (Cohen, Andrew I. & Wellman, Christopher eds., 2005)Google Scholar.
6 Carens, supra note 1, at ch 9.
7 Nationals of Andorra and Monaco do not require a work permit in order to work in France (see Antonella C. Attardo, France, International Co-Operation on Migration, available at http://www.legislationline.org/topics/topic/10/subtopic/43/country/30 (last visited Mar. 16, 2010)). An agreement signed between San Marino and Italy on 1971 allows the nationals of both Republics to exercise any profession or function in the other Republic under the same conditions as the Republic's nationals (Duurosma, Jorri, Fragmentation and the International Relations of Micro-States 224 (1996)Google Scholar. A treaty concluded on 1964 allowed Liechtenstein and Swiss nationals to receive a residence permit and work permit in the other country upon request (id. at 167). Since 1995, Liechtenstein nationals may work and settle in the EEA member states.
8 I assume here that having a right means having an interest that justifies the imposition of duties on others (Raz, Joseph, On the Nature of Rights, 93 Mind 194, 195 (1984)Google Scholar. “X has a right if and only if X can have rights, and other things being equal, an aspect of X's well-being (his interest) is a sufficient reason for holding some other person(s) to be under duty.”) and that duties are act-types justified by reasons which relative to act-tokens falling under this act-type enjoy a principled hierarchical priority over some types of other reasons and interests likely to collide with the reason justifying the performance of act-tokens falling under the duty-act-type. See Gans, Chaim, The Concept of Duty (1981) (Ph.D. dissertation, Oxford University)Google Scholar (on file with the author). I also should mention that I conduct most of my argument in this Article within the framework of interest theories of rights, particularly Raz's.
9 Carens, supra note 1, at ch. 10.
10 For example, a common reason why people may not wish to pay income tax is their interest in keeping as much as possible for themselves. Paying income tax is often referred to as a duty because this desire not to pay taxes should in principle be overridden by the interests justifying the duty to pay income-tax. I believe that most people do not have this attitude towards such matters as the preservation of a state's culture and its public and economic order, which frequently weigh against admitting immigrants.
11 Carens, supra note 1, at ch. 10.
12 Hart, H.L.A., Legal Rights, in Hart, H.L.A, Essays on Bentham 162, 183 (1982)Google Scholar; see also Hart, H.L.A., Are There Any Natural Rights, 64 Phil. Rev. 175 (1955)CrossRefGoogle Scholar.
13 Consider Israel's right of return for Jews. This right does not allow the state or anybody else discretion to refuse any Jews entrance (unless a potential returnee fits into one of the exceptions to the law). It is up to individual Jews to decide whether or not they wish to enter Israel. Would Carens want to allow all individuals in the world to be those who weigh the considerations for and against their entrance into a country and to be those who make the decision regarding their entrance?
14 Blake & Risse, supra note 2, at 137.
15 Id. at 150–51.
16 I agree with this thesis and presuppose it in my discussion of the right to national self-determination. In fact, such thesis is presupposed by the Zionists' argument for the Jews return to Palestine.
17 The phrase “Palestine is a country without people; the Jews are a people without a country” was used by Israel Zangwill (Zangwill, Israel, The Return to Palestine, 2 New Liberal Rev. 615 (1901)Google Scholar) though it was first formulated by Lord Shaftesbury in 1851.
18 Wellman, supra note 3.
19 Id. at 109-10.
20 Id. at 117-19.
21 Id. at 128-29.
22 Walzer suggests this when talking about the policy known as “White Australia.” Walzer, Michael, Spheres of Justice 46–48 (1983)Google Scholar.
23 David Miller makes this argument (Miller, supra note 5, at 197), which Wellman invokes: Obviously if no state were ever to grant entry rights to people who were not already its citizens, the right of exit would have no value. But suppose that states are generally willing to consider entry applications from people who might want to migrate, and that most people would get offers from at least one such state: then the position as far as the right of exit goes is pretty much the same as with the right to marry, where by no means everyone is able towed the partner they would ideally like to have, but most have the opportunity to marry someone.
Wellman, supra note 3, at 136.
24 Id. at 113-14.
25 This distinction is analogous to Rawls's distinction between justifying a practice and justifying individual acts falling under it. See Rawls, John, Two Concepts of Rules, 64 Phil. Rev. 3 (1955)CrossRefGoogle Scholar, which mentions even earlier sources for the present distinction.
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