Does freedom of association give legitimate states a right to exclude migrants?
Migration is a political issue that affects all nations around the world. In this post I look into whether legitimate states have the right to exclude migrants from their nation.
In this post I will explore Wellman’s contention that freedom of association gives legitimate states the right to exclude migrants. I first explain Wellman’s argument before challenging whether freedom of association trumps other political rights or freedoms. After concluding that there are circumstances whereby states may not exclude migrants based upon freedom of association, I then employ Pevnick’s concept of ‘associative-ownership’ to explore whether states have the right to exclude at all. I conclude by arguing that freedom of association does give states the right to exclude migrants from both their territory and their community, so long as the freedom to associate trumps other political rights and the individual freedoms of existing citizens.
As a starting point, it can be argued that freedom of association does give legitimate states a right to exclude migrants, a view forwarded by Wellman (2008). From this perspective, we acknowledge that much like individuals and private groups, states made up of a group of citizens have the right to self-determination; conducting their lives free from external interference. An important component of this right to self-determination is freedom of association which also ‘entails the freedom to exclude’ (Gutmann, 1998: 11) or to disassociate. Therefore, states hold the right and are morally permitted, to freely choose whom they omit and who they exclude.
This right to exclude migrants that states possess is a particularly strong one if we consider Wellman’s counterarguments to possible libertarian or egalitarian objections. Firstly, freedom of association gives legitimate states the right to exclude both voluntary immigrants as well as refugees and asylum seekers (Fine, 2010: 339). This is because, despite having a duty to help the prosecuted and impoverished, sufficiently wealthy states are not required to open their borders. Instead, these states can choose to ‘export justice’ (Wellman, 2008: 129) either by transferring aid to impoverished regions or carrying out political and militarily interventions in states that are failing to protect their citizens. Secondly, the state’s jurisdiction over its territory is more important than the right which each citizen has to invite outsiders onto their private property (Wellman, 2008: 131). This is because the state requires the ability to coerce its people in order to carry out its key functions which include security and enforcement of property rights. States, therefore, have a presumptive right to exclude migrants as they please.
The above argument seems to entail very strong implications, allowing states to exclude whoever they want to, based upon their right to freely associate. However, does this right to freely associate trump all other moral considerations? I argue that it does not. Instead, we should understand the right to freedom of association as one of many political rights; such rights must be weighed up against one another on a case to case basis before we derive any moral conclusions as to whether a state has a right to exclude an individual or not (Blake, 2012: 751). Therefore, freedom of association does not give states the automatic right to exclude all migrants because in some cases it should give way to a migrant’s moral claims that hold more weight, for instance, the right to be free from discrimination or persecution.
Further, even in a world where everyone is equal and there is no need for immigration to circumvent issues such as persecution and discrimination, the freedom of association argument still does not grant states the unlimited right to exclude migrants. The main example here is the issue of international families. It would appear to be morally wrong and a severe infringement upon an individual’s freedom to prevent a citizen of one nation from moving their foreign-born partners and immediate family members into the state that they reside in; especially as such familial relationships require people to be in close proximity to one another (Lister, 2010: 737). In this sense, ‘more intimate associations’, such as family or marriages, ‘deserve more deference in determining their members than do less intimate ones’ such as states and political communities. Therefore, the individual’s freedom to associate would suggest that citizens have the right to invite their foreign partners and family members into the state; especially prominent in a world where internet dating allows individuals to meet partners abroad with much greater ease (Sauter et al, 2010: 556).
These arguments still leave scope for freedom of association to grant legitimate states a right to exclude; in the cases where freedom of association trumps other political rights that would-be migrants may claim. In order to challenge this argument further, it is important to ask two questions: first, whether states have a right to self-determination and, secondly, what exactly states are excluding migrants from- the political community, the territory or both. Here, the work of Pevnick is valuable.
Pevnick (2011) argues that when members create and maintain institutions, they earn an ownership claim which gives them the right to determine how the institution is shaped in the future. This ‘associative ownership…applies even to associations that are non-voluntary and intergenerational’ (Pevnick, 2011: 36) for instance, states. In this sense, the citizens of a political community work together, utilising resources to pay for public goods such as education and infrastructure- their ownership of the institutions gives them the right to decide how they are run. Pevnick, therefore, shows that states as political communities have the right to self-determination; this right morally permits states to exclude migrants whose political claims do not trump the freedom to associate.
Pevnick’s argument grants that states have a type of property right over the nation’s institutions and that these institutions are linked with a particular territory (Hudson, 2011). However, even if we grant that legitimate states have a right to territorial jurisdiction, it is not ‘evident that jurisdiction also requires control over entry to the territory’ (Miller, 2016: 61). This suggests that a state’s right to self-determination allows them to exclude migrants from the political community but not the territory. In this sense, a migrant could live within a territory, separate from the political community and not inflict any injury upon the rights or freedom of existing citizens (Fine, 2010: 343). The freedom to associate would, therefore, give legitimate states the right to exclude migrants from the political community but not the territory.
However, issues arise with this argument if we consider that a state’s legitimacy and rights to control a territory depends on protecting the rights of all those who are within its territory (Miller, 2016: 61). In this sense, the state has to grant equal citizenry to all immigrants that settle in its territory, incorporating them into the nation’s institutions and providing them with the same rights and access to services as existing citizens. The states’ right to exclude immigrants from permanently settling within in its territory is, therefore, a ‘necessary extension of the right to exclude them from full membership of the political community (Fine, 2010: 344).
But whilst it may be the case that states are required to grant all settlers full membership to its political community, the burden on existing citizens must be questioned. Migrants do not demand new forms of protection or services from citizens or the state; they simply demand equal rights and use of existing services. From this perspective, the arrival of migrants will not exclude existing citizens from the benefits of the public goods that the state provides, such as law enforcement and healthcare (Sager, 2012: 2). This dampens the argument that freedom of association gives states the right to exclude migrants because the people entering the country are likely to impose negligible effects on citizen’s freedom and access to services, especially if these migrants are taxed so as to contribute their fair share (Sager, 2012: 2).
However, this is to miss an important point made by Wellman. By accepting new members into the state, the ‘self’ in ‘self-determination’ is altered because these new citizens have a say in how the community is run (Miller, 2016: 62). This means that ‘a country’s immigration policy affects who will share in controlling the country’s future’ (Wellman, 2008: 115). Therefore, as more migrants, who hold different values, are admitted to the state, the original citizens have less and less and less control over how their community is run. This leads to the conclusion that states have a right to associate freely and exclude migrants in order to protect their right to self-determination for the future.
But this point that the right to exclude is required to protect self-determination raises questions. Most importantly, it is not unreasonable to think that a state’s culture and values will transform over time despite the presence of closed borders, with changes in society and new generations making substantial differences to the decisions made by the political community (Scheffler, 2007: 104). The right to exclude migrants would, therefore, seem to fall away since the ‘self’ in ‘self-determination’ is likely to be altered regardless. This conclusion does not stand however if we pay attention to the fact that education and socialization results in a ‘good deal of continuity between generations living in the same community’ (Miller, 2016: 63). It would therefore seem important for self-determination that states are able to freely associate and prevent a large influx of migrants to preserve the ‘self’.
In conclusion, freedom of association does not give legitimate states the right to exclude all migrants because the freedom can be trumped by the claims of migrants and the freedom that existing citizens hold to form intimate relations with individuals in other countries. Freedom of association does, however, grant legitimate states the right to exclude migrants whose political claims are not weighty enough since the ability to exclude is crucial to protecting the characteristics of the demos and the state’s ability to self-determine its operations and future course.
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