Wellman defends the view that states have an almost unqualified right to admit or keep out immigrants, including refugees.  Wellman argues that this is a direct implication of the freedom of association (henceforth: FoA) of the citizens of a state.  His article aims:

1. to show that FoA can be used to justify the policies of immigration-restriction by states,
2. to rebut two views that might defeat the argument from FoA: egalitarian and libertarian arguments for open borders, and
3. to defend one qualification to FoA: that states cannot decide to exclude would-be immigrants on racist (ethnic, religious, etc.) grounds.

Wellman’s positive argument is fairly straightforward.  He notes that FoA is widely believed to be very important and that FoA confers on members of an association the right to decline membership to outsiders.  Wellman sums up the central analogy of the article:

“[J]ust as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow-citizens has a right to determine whom (if anyone) it would like to invite into its political community. And just as an individual’s freedom of association entitles one to remain single, a state’s freedom of association entitles it to exclude all foreigners from its political community.” (110-1)

Wellman defends this analogy by refuting some potential concerns.  He argues that A) not only individuals, but groups can have the right to exclude as a matter of FoA; B) the coercive nature of states leaves room for the application of FoA; and C) that FoA applies to large associations, like states.

Now the argument as stated is incomplete – why think that access to a state’s territory is the same as joining an association?  However, during his defense of these claims it becomes clear that Wellman endorses the principle that everyone who lives for an extended period of time in a certain state should be included in its decision-making.  Thus, since newcomers will have a say in how the political community should be governed, its current members have a serious stake in who may join.

Wellman then turns to refuting various arguments for open borders.  Egalitarian arguments hold that since closed borders maintain global material inequalities, and such inequalities (i.e. whether you are born this or that side of the border) are due mostly to bad luck, closed borders are unjustified.  Wellman attacks both the premise of this argument and the argument itself.

First, Wellman endorses a relational conception of equality.  On this view, what really matters is not so much equality per se, but what equality can avoid: oppressive relationships.  This means that equality is primarily a virtue of political societies, and does not apply across borders.  In fact, the appeal of arguments for global redistribution is due to the extreme poverty of some.  We do have duties towards these people, but these are duties of Samaritanism, not equality.  This refutes the premise of the egalitarian argument.

Second, Wellman argues that whatever duties we have to improve the material condition of foreigners who are worse off, do not require open borders.  Instead of redistributing people, we might redistribute money.  What about those people trapped in oppressive political regimes?  Here too our duties can be fulfilled differently, for example through humanitarian intervention.

The libertarian argument for open borders considered by Wellman consists of two claims.  First, states cannot legislate whom individuals may or may not invite onto their property.  And second, border controls interfere with the freedom of movement of outsiders, thereby violating their rights.

Wellman considers both arguments too strong.  First, states have some authority over people’s property – or anarchism is true, a reductio for Wellman.  Moreover, closing borders is a rather mild interference with people’s freedom, whereas newcomers pose a serious burden.  Therefore closed borders can be justified.

Second, Wellman follows David Miller’s argument that our rights to free movement are not unlimited.  This means that, just as other people’s property rights may limit our freedom, the FoA of states can be justified.

The final section considers whether the exclusionary rights of FoA can be exercised with full discretion.  Could FoA justify even racist anti-immigration policies?  Wellman answers negatively.  Although FoA in principle allows for any motivation to decline membership, citizens of liberal states have “a special responsibility not to treat their compatriots as less than equal partners” (130).  But racist immigration policies insult co-citizens who are relevantly similar to those who are rejected.  Paradoxically, then, no state can enforce racist immigration policies because this would wrong its citizens.

It is unavoidable that an article on a subject as complex as immigration has some loose ends.  For example, some of Wellman’s responses to arguments for open borders are not entirely convincing.  It is hard to tell which of his two recommended approaches to helping the global poor and vulnerable has a worse track-record: redistribution of wealth or humanitarian intervention.  Can his replies be sustained in the face of such spectacular failures?  And perhaps a discussion of Hillel Steiner’s argument that FoA requires open borders (Steiner, 2001) would have been in order.

I have a more serious concern as well.  Wellman argues that states may exclude people because of the FoA of their populations.  But this seems to suggest that groups of citizens within states also have this right.  Wellman explicitly argues against the idea that only groups of a certain character have such rights, so why should only the state have the right to exclude?   Does the argument support a right for provinces, counties, even cities to close their borders, including to fellow citizens?  Perhaps Wellman would appeal again to the idea that co-citizens must treat each other as equals, and claim that this implies domestic free movement.  But it is not clear that such equal treatment must apply across the provinces of a state but not, say, across the states of the European Union.  In other words, the assumption that the exclusionary rights of FoA apply at, and only at, the level of the state seems unwarranted.

Whatever the merits of these points, this article is a highly interesting and entirely novel contribution to the debate on the ethics of immigration policies.  Its conclusion is very strong, the argument seductively simple.  For anyone interested in the ethics of immigration, this is a must-read.

References

Hillel Steiner, “Hard Borders, Compensation and Classical Liberalism”, in David Miller & Sohail H. Hashmi (eds.), Boundaries and Justice: Diverse Ethical Perspectives, (Princeton: Princeton University Press, 2001)

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