An Obligation to Migration?: The Nation-State and its Responsibilities

Introduction:

In the contemporary international system, the issue of migration is central in the debate about the nation-state and its particular responsibilities. As Miller (2016) prudently observes, “all states in today’s world proclaim their right to control their borders”; yet, foundational documents to international law – e.g. the 1948 Universal Declaration of Human Rights and 1966 International Covenant on Civil and Political Rights – attribute a responsibility to uphold freedom of movement for these same nation-states (2016:11). In this way, the supposed supremacy of the nation-state has led to freedom of movement becoming a ‘forgotten right’. To understand the degree and nature of responsibility placed on the nation-state in this regard, we must weigh up these two polar narratives.

Throughout this essay, a number of different thinkers will be considered, but most prominent will be aforementioned Miller (2016), and Pogge (2002), since both provide comprehensive accounts of the international system in regard to nation-states and migration. In particular, the first part of the essay will focus on whether freedom of movement is a human right which must be upheld by nation-states, and what degree of discretion nation-states can be accorded. In the second section, the responsibility of the nation-state towards global poverty will be evaluated, and whether this provides a convincing obligation of nation-states towards migration.

In assessing the convincingness of the two key areas of debate above, this essay makes use of Miller’s criteria for determining human rights, which is worth expanding on here first. Miller establishes three conditions: interests, feasibility, and compatibility. On the first condition, interests are presented as the grounding of a potential right as needed for “conditions for human agency…or conditions for human dignity” (2016:16). Second, feasibility is simply the condition that the right must reasonably be within human ability to discharge; Miller leaves what is considered ‘reasonable’ intentionally open (as the aspiration of different rights must necessarily be), but the condition remains important since it eliminates candidates such as ‘freedom from death’ or ‘freedom from illness’. Finally, as a general rule Miller proposes a compatibility requirement – that “the candidate right [should] not interfere with other rights that have already been recognised” (2016:17). A counterexample to this is the conflicting rights of privacy and security from terrorism; in this essay, the compatibility requirement is taken as ‘soft’ to the extent that many rights involve unavoidable trade-offs, whilst recognising that rights must generally follow this in aggregate or risk having the force of their obligations dissipated (where the majority of rights are conflictual, and so enforcement weak). These three conditions are generally convincing and are taken as uncontroversial over the course of this essay.

It is important to note, however, that discussion of Miller’s ‘cantilever strategy’ – the argument that since domestic travel is a protected right, so too should international movement be – is excluded. This argument largely relies on a false equivalence between domestic and international movement and utilises the reasoning of the instrumental strategy which are already addressed in the first section. Furthermore, for the sake of simplicity, there is little reference made to the different forms of migration – asylum seekers, economic migrants, etc. – since this essay deals first-and-foremost with the universal right of freedom of movement, granted to all individuals.

Whilst considering the implicit trade-offs between rights, it is clear that the right to movement can be established (and both positive and negative nation-state responsibilities imposed), on account of combining the direct and instrumental strategies together, and so meeting the interest, feasibility, and compatibility requirements.

1. Nation-State responsibility towards Freedom of Movement.

We begin with Miller (2016)’s conception of freedom of movement: “simply…a right not to be prevented from entering [a nation-state]” and “remain within [it] for as long as one chooses” (2016:18,11). If this right is to be recognised, then it “must be understood [as] the right to migrate to any state, not just one or a few states” (2016:14). Miller presents the freedom of movement as a candidate for universal human rights status, and in addition, argues this right imposes a ‘negative duty’ on nation-states: to not actively prevent individuals from exercising this right and entering into its territory.

a. The Direct Strategy.

The direct strategy is – as the name suggests – a direct qualification of freedom of movement as a human right, intrinsic to its relation to humanity. This should perhaps come as no shock when considering the many groups have (and still do) adopt nomadic identities, such as the Romani people across Europe or the Sami people of northern Scandinavia. For these groups, freedom of movement is an intrinsic part of their way of life, and to a larger extent, the survival of their community; so, the right to move freely clearly meets Miller’s interest and feasibility requirements. However, Miller persuasively notes that when considering universal human rights, the (however legitimate) needs of specific groups cannot exist as a convincing justification for all peoples. Thus, to provide an account of the nation-state responsibility towards freedom of movement, we need a far more inclusive reason to establish it as a right.

The work of Oberman (2016) is of particular use here. He describes freedom of movement as providing a wider qualification of interest, by making people “free to access the full range of existing life options” (2016:35). Such options include falling in love with someone from another country, seeking religious community, having foreign political ambitions, among others. This is largely convincing, as – particularly in an increasingly globalised world – there are many important aspects of life that contribute to human flourishing, and which necessarily require a freedom of movement. Oberman’s critique here, then, is simply to expand a freedom enjoyed by some, into one by all. Without access to this right, many would rightly feel wronged by nation-states which prevent them from living with those they love or joining religious diaspora.

Miller addresses this account by pointing that many of these options – particularly falling in love with someone from another country – have both a negative duty upon the nation-state, but also tacitly a positive one as well. That is, if the nation-state is to ensure substantive access to this option, then it “require[s] states to take positive steps to make the corresponding opportunities available”. In this way, Miller challenges the Oberman’s direct justification on the basis of a ‘sneaky’ positive requirement. Expanding on this, Miller explains that this positive requirement is problematic for Oberman’s argument, as these options “require the cooperation of others to fulfill [sic], so they are…vulnerable to refusal on the part of these others”(2016:21).

This counter from Miller seems weak on initial reading, as even if our original understanding of freedom of movement were to be expanded to with a positive face, this would be largely in line with modern understanding of human rights. For example, the right to general health may have a core negative requirement not to pollute the water or air systems, but anything more than formal access would require a positive requirement for the nation-state to ensure doctors and hospitals are available to the population. However, Miller touches on a strong assumption: do in fact rights have the power to compel actions? If nation-states can morally ignore the human rights violations of migrants, then it matters little to our conclusion whether freedom of movement is a right in the first instance. The issue of whether rights confer (positive) responsibilities is thus a question of great importance.

Considering the wider issues of compelled action, Taurek (1977) argues that the choice of how to use personal resources and actions is morally the discretion of each individual. Taurek takes the case of possessing a unique cure for a disease, and the choice of saving five random people or my friend, David; here, it is entirely my choice whether I save the five or David, as there is an assumed principle of bodily autonomy, which extends out also to my possessions. Taurek’s case remains very individualistic, yet largely convincing, since although it would be ‘nice’ to save more people, it is difficult to see how another group of individuals can morally demand my resources, on account of theirhuman right to general health. Whilst convincing, however, it remains an unsatisfactory case when applied to human rights: if rights cannot confer special moral obligations, then what is the practical utility of recognising them?

Whilst Taruek’s case (taken within its scope) remains convincing, it yet paints an incomplete picture. Instead, we must supplement this understanding with the influential work of Pogge (2002), who argues that the unsatisfactory case (i.e. the tension between a need for rights, but a difficulty to compel individuals to give their resources) is caused by the limited scope of its analysis. According to his argumentation, Taurek’s case relies on a faulty interactional model of human rights, which fails to account for the importance of institutions in guaranteeing substantive access. Pogge asks us to consider a case in which, by pure coincidence, there were no violations of human rights on one day in a nation-state. On this day – by the interactional model – there are no wrongs or unsatisfactory elements to the situation, since no individuals are (negatively) depriving others of their rights. However, Pogge suggests that we are right to feel a sense of unease about this situation, and attributes it to the lack of institutional protections in place to guarantee this situation in the first place. This is largely convincing; many people would prefer to strive for a situation in which nation-state guarantee the protection of rights, rather than the coincidental state accepted by the interactional model. Instead, then, Pogge proposes an institutional model, which suggests that the duty to protect human rights lies most vitally with institutions, rather than individuals. This is a far more holistic model, and an effective line of argument; again with reference to our underlying feelings, it seems strange to say a murderer has violated the human rights of their victim, but even so, it would seem incredibly strange not to point out the grave violation of human rights if the murder was committed by the police (given the institutional status of the police). As such, Pogge’s institutional model is a far more satisfactory and holistic position from which to understand human rights and their duties.

The two key insights of this are as follows. First, it is indeed the case that human rights confer special moral obligations upon institutions (regardless of the obligations of individuals), as part of the institutional model. Second, that Oberman’s original argument may be protected, as the presence of a positive duty on institutions is no longer problematic. Miller’s original critique of a ‘sneaky’ positive face begins to collapse, as both substantive (rather than formal) access to rights – and institutional obligations to act in accordance with them – have been established. As such, it appears that Oberman’s basis for freedom of movement as guaranteeing the fullest range of life choices is able to satisfy the core interest criteria for a human right.

b. The costs of responsibility for Nation-States.

However, whilst meeting the first requirement, it remains to be seen to what extent freedom of movement may violate the feasibility or compatibility requirements. As such, a critical analysis of the two main counterarguments to the direct strategy (as presented by Miller) is vital. Each of these arguments relates to the broader case that nation-states face significant costs to ensuring access to freedom of movement, to such an extent as to exclude freedom of movement from human right status.

First, Miller argues that the feasibility requirement is unmet, as the policy of near-open borders that upholding freedom of movement entails would be impractical, due to rapid increases in the overall numbers of people within the nation-state. Given the extent of global inequality – and the desperation of many in low-income countries – it is not radical to assume that an opening up of this scale could lead to serious stresses on public services, housing, food security, and the environment. Whilst we are reminded that making freedom of movement a human right would impose the same obligations on all states (and thus, there would be a greater spread of migration across wealthier countries), it is nevertheless true that governments could become overwhelmed by population increases. As Miller writes:

“The state is likely to have set targets for employment, for house-building, for the supply of health services, and so forth—perhaps in the future for overall levels of greenhouse gas emissions—which are dependent on the total number of people who fall under its jurisdiction.” (2016:27).

Many post-structural thinkers, however, argue we ought not be so quick to uncritically adopt the underlying framework of this proposition. Foucault (1997) argues for a theory of ‘biopolitics’ to explain the ways in which the human body has been characterised, measured, and objectified by governments, in order to categorise and control the population. He argues that the nation-state is founded on a “system of subjection”, in which labour productivity, health liability, risk, ethnicity, intelligence, and other characteristics, are meticulously measured and categorised (under the guise of an ‘objective science’) as means to ‘understand’ the population and exert the most effective control over them. Foucault writes:

“[the system of subjection is] the evolution of industrial and institutional techniques of modern governance through an investigation of how mobile, productive, healthy, moral bodies were constructed, schooled, policed, and harnessed for labour”(1997:73).

Salter (2006) expands on this, arguing that there is “a biopolitics of international relations: the management of international bodies”; this system of subjection is at its strongest when considering the management of access at national borders, and where freedom of movement is denied by the depoliticised guise of ‘science’ (e.g. ‘simple economics’ or ‘impracticalities’) (2006:179). This is a largely convincing account of how nation-states exercise their discretion over movement between borders, as seen in the obsession over categorising ‘types’ of migrants, such as ‘asylum seekers’ or ‘economic migrants’ – which carry the label of scientific measure, but coincidentally also an associated judgement of moral value.

Whilst this does not mean we ought to dispose entirely with socio-economic measures of populations, the effective post-structural critique carries forth two key conclusions. First, no measure of socio-economic value is free from critique – since they too contain a necessarily normative aspect – nor is its practical use by nation-states. Second, I argue further, that a logical extension is that the similarly ‘scientific’ measure of feasibility itself is not free from critique. For example, if a society decided that car collisions were the greatest stain on the moral character of their nation state, they could very feasibly decide an outright ban on all motor vehicles. Miller’s account would suggest that this is in fact infeasible, but since the matter is within the scope of possible human action, the remaining decision is itself only a matter of politics. In much the same way, an open-border policy may be incredibly costly – sacrificing economic value, environmental protections, and effective public services – but it is still possible; the matter which remains is a political decision, which therefore becomes a matter of special duties imposed by human rights. Such a political will is not so distant – in cases of war, nation-states in many wealthy countries decide very freely to sacrifice all three of these for a moral cause.

However, whilst freedom of movement then meets the interests and feasibility requirements, Miller argues that it is an egregious violation of compatibility. Here, Miller explains that “whereas migration within a modern state will only change the prevailing culture in marginal ways, immigration from outside may change it more radically” (2016:27). This is problematic, since there is a strong claim that cultures and communities with historic claims to land have a human right to preserve their heritage and culture – and thus, it is possible that allowing for freedom of movement as a right would violate this. This seems a strong counter: pre-existing cultural homogeneity/ies (since despite multiculturalism, there is a cultural convergence under ‘Britishness’) within the nation-state is taken as undeniably valuable for its people. As Miller explains, “it allows people to interact with less friction, it helps to generate trust, which in turn supports active democracy, and…also intrinsically: people simply feel more at home” (2016:28). This is a highly convincing argument; if freedom of movement is to be made a human right, then the duty imposed on nation-states is called into question, as governments are forced to choose between the right of culture and right of free movement. There is no clear case as to why either of these rights are significantly more important than the other, and since the right of cultures already exists, the onus lies with freedom of movement to justify its existence. Whilst compatibility is usually a soft requirement, here it is a fundamental issue with the direct strategy, such that we cannot clearly justify introducing freedom of movement as a human right (and thus a responsibility of the nation-state).

2. Nation-State responsibility towards Global Poverty.

Having explored the limitations of Miller’s direct strategy for justifying freedom of movement as a human right, it seems apparent that an alternative is required to overcome the final hurdle to justification. Miller proposes (and opposes) another: the instrumental strategy. Drawing on the compatibility requirement, this strategy seeks to establish a clearer hierarchy of rights, and – whilst far from comprehensive in ordering – suggests that freedom of movement can be seen as clearly more vital than the right of cultures, thus justifying its existence.

a. The Instrumental Strategy.

Miller starts by explaining the basis of the instrumental strategy. Here “the right is justified by showing that its recognition is instrumental to other rights”(2016:15). For example, the right to democracy may be questioned for the strength of its inherent value – since many nations (to varying degrees) limit democratic engagement on technocratic grounds (e.g., the UK Supreme Court and European Central Bank). However, the importance of the right to democracy can be attributed to its relation to other, more fundamental rights such as freedom of speech and protest. Since these downstream rights can be proven to be of far greater importance, as long as the right to democracy is the core means of assuring these rights, then the importance of downstream rights is, in essence, passed onto the right of democracy.

Whilst a complete hierarchy of rights is not established, it is not necessary – all that is needed, is to be able to compare rights in individual decisions, specifically those that conflict with each other. This is a largely convincing structure of an argument, though it is noted that there seems to be a need to strongly establish that there are not better alternatives to assure those other downstream rights.

Miller explains the main form this instrumental strategy takes as in regards the global poverty, and its relation to migration. He explains that some argue that:

“Migration may well be only the way to satisfy an essential interest even at minimal level: this is especially likely in cases where the migration is from a very poor country to a much richer one in which adequate food, medical care, and so on are available” (2016:19).

This is the argument presented by Pogge, who describes global poverty as perhaps the gravest human rights violation of the 20^th and 21^st centuries. He reports that regarding those classified as ‘severely poor’ by the World Bank, some 18 million of them die prematurely due to poverty-related causes. In another way, this is 50,000 people daily, of which 34,000 are just children under the age of five (2002:2). Additionally, he argues that all states – not just those who such populations find themselves living under – have a responsibility to protect these people against such grievous violations; this is in exactly the same way that there was an international moral obligation to prevent the horrors of the Holocaust, despite the victims only living under the Nazi German nation-state. Unsurprisingly, Pogge argues that the inaction of nation-states to deal with world poverty is morally unacceptable, and that they have both a negative and a positive duty towards the global poor. This is an effective line of argumentation – since the scale of man-made death here is more than comparable with other terrible crimes against humanity, and the right to life (among others relevant here) are already well-established human rights.

Pogge’s argument can be extended out to the instrumental strategy, I argue, to the extent that not allowing the right of movement to exist risks causing violations of more vital human rights than those violated if it was brought into existence. That is, that since migration is a direct way to remove people from poverty and starvation (by placing them in wealthy countries, with extensive social safety nets), assuring the right of movement would also assure the right to life and freedom from extreme poverty – to which nation-states already have an obligation. This seems to be largely convincing, as it is difficult to see how the right to life and freedom from poverty on the scale of Pogge’s account can be seen as equal to, or lesser, than the citizens’ right to culture and community. If we allow freedom of movement to remain unprotected, then we also allow the gravest violation of human rights in the modern era: this must be seen as a far greater violation of rights than those compromised when we allow the right of movement. In this way, the force of duty is also largely upheld, as whilst some rights are traded-off, it is far more difficult for any nation-state to shirk responsibility on account of right to culture, when the right to life is the alternative.

However, Miller points out potential problems here; notably, the essential link between global poverty and migration can be questioned. He argues that one would need “to prove that…essential interests that cannot be fulfilled except by establishing such a right” (2016:19). This is difficult, as there are certainly some alternatives – such as international aid – which could alleviate the violations, without needing to introduce a new right. Whilst this is true, the use of aid is far more risky and contingent than migration – as it relies on aid to be well-spent, and for those resources to precipitate a meaningful increase in education and economic activity over a long period of time, to alleviate poverty into the future. Thus, the mere existence of aid doesn’t justify it as an alternative – instead, a far higher burden of proof is required for it to exist on the same level of efficacy as migration.

Furthermore, Miller effectively adds the caveat that this instrumental argument doesn’t entirely meet the criteria for a universal right, as it “cannot be used to justify migration between societies all of whom already provide their members with an adequate range of opportunities” (2016:22). Whilst this is true, the application of Pogge’s argument goes a long way in justifying most of large-scale migration seen today as a human right, whilst meeting the three requirements for its existence.

Conclusion:

In conclusion then, it is clear that by combining the direct and instrumental strategies together, a mostly comprehensive model of freedom of movement as a human right, is produced – and crucially, is able to impose negative and positive responsibilities on the part of nation-states.

Starting from an implied negative duty to human rights, we have seen that positive duties are also necessary, as they account for substantive (rather than formal) access to rights. Additionally, special moral obligations exist particularly to institutions to protect these rights. After meeting the interest requirement, we saw how feasibility itself was mostly a political decision, and only truly applicable as a requirement in cases where the exercise of the right was a scientific impossibility. Finally, whilst considering the trade-off that occurs to right to culture when right of movement is introduced, we saw that the logic of greater and lesser rights violations is vital for understanding where the greater responsibility of nation-states lie, and thus also that an essential link between right to movement and freedom from extreme poverty could be established.

In this way, combining elements of Oberman and Pogge’s argumentation, we are left with a mostly comprehensive justification of the right to movement – and the proceeding nation-state responsibilities – with the caveat of not including movement from rich to poor countries as a right.

Bibliography:

• Foucault, Michel: “The Birth of Biopolitics” (1997), Ethics: Subjectivity and Truth: Essential Works of Foucault 1954-1984, Vol. 1, ed. Paul Rabinow, trans. Robert Hurley (New York: New Press, 1997).
• Miller, David: “Is There a Human Right to Immigrate?” (2016) in “Migration in Political Theory: The Ethics of Movement and Membership”, edited by Sarah Fine and Lea Ypi (Oxford University Press, 2016), pp. 11-31.
• Oberman, Kieran: “Immigration as a Human Right” (2016) in “Migration in Political Theory: The Ethics of Movement and Membership”, edited by Sarah Fine and Lea Ypi (Oxford University Press, 2016, pp. 32-56.
• Pogge, Thomas: “World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms” (2002) (Polity Press, 2002).
• Salter, Mark: “The Global Visa Regime and the Political Technologies of the International Self: Borders, Bodies, Biopolitics” (2006), Alternatives: Global, Local, Political, Vol. 31, No. 2, pp. 167-189.
• Taurek, John: “Should the numbers Count?” (1977), Philosophy & Public Affairs, Vol. 6, No. 4, pp. 293-316.