Global Migration, Human Rights and Development: Assessing Open Borders Abstract This paper discusses the dominant positions on migration regulation, and evaluates the arguments in favor of and against an open border policy. It departs from the acknowledgment that immigration control policies remain largely restrictive, stemming from a widely shared perception of immigration as a ‘threat’ (namely, to safety, prosperity, social cohesion and culture) which has consequently led to a securitization of borders. A tightening border management and surveillance has, however, failed to meet the proclaimed objectives of reducing irregular migration1, while posing serious concerns on human rights abuses and the increasing vulnerability of undocumented migrants to human trafficking and smuggling. Incoherencies in the contemporary management of immigration flows as epitomized in EuroMediterranean relations, coupled with humanitarian concerns and moral priorities, and a new emphasis on migration as a development policy tool call for an alternative twist to the international mobility system. Now, is “open borders” the (only) solution?
Introduction Global migration, the movement of people across international borders, constitutes a key phenomenon of our time, ever more perceived as a problem that needs to be controlled. In 2010, the number of international migrants worldwide was estimated at 214 million (UNDESA 2011), amounting to the 3.1% of the total population (IOM 2011), compared to 179 million a decade ago (IOM 2011). Parallel to this increase in the number of migratory population, and partly as a response to the perceived threat immigration poses, states have tended to curb admission to immigrants, restricting migration policies and intensifying surveillance at the
1 The term “irregular migrant” describes people who are not complying with some aspect of immigration law and rules. Although often referred to as “illegal migrant”, many irregular migrants commit administrative rather than criminal offences. Therefore, “illegal migrant” or “undocumented migrant” will be employed along the paper over illegal migrant for legal righteousness and ethical motivations.
border -sometimes through militarization (as in the US-Mexican border, Greek-Turkish border 2). Whether states have the ability to bridge the “migration policy goal-outcome gap” (IOM 2003: 8) and, therefore, to truly control migration through border policies, the challenges that these currently pose with regards human rights are significantly pressing. Besides the costeffectiveness of migration control enforcement, there is an extensive research that questions its success in deterring the phenomenon of illegal immigration as well as its adequacy on humanitarian and legal grounds (Cornelius and Tsuda 2004, Castles 2004). In the Euro-Mediterranean context, tightening border controls has led to “the diversification of trans-Mediterranean crossing points”, which has in turn raised the number of areas to monitor, thus, reducing its effectiveness (Haas 2008: 7). Similarly, Frontex, the European border control agency, has carried out thousands of interceptions at the offshore of Europe. However, increased surveillance has not translated into a deterrence effect, but rather a “displacement of routes”, which are usually riskier, further endangering migrants’ lives (Baldaccini 2010). Indeed, Baldaccini’s research shows that increased surveillance ironically stimulate migrants to challenge the dangers of the sea on their reliance on Frontex obligations to preserve the principle of nonrefoulement (obligation not to return people back if they are at risk of persecution, as set out under the Geneva Convention Relating to the Status of Refugees). In a similar process, strengthened border controls foster “the professionalization of smuggling networks” rather than combating it (Andriajasevic 2009). We are therefore faced with a paradoxical process in which border controls encourage smuggling that, in turn, leads to calls for more control (Andreas 2000). Similarly, the more difficult it is to enter a country, also the most profitable the business of trafficking becomes. In light of the contentions mentioned above, the paper offers a review of competing views on migration regulation. First, it analyses the main claims under which a number of scholars strongly argue for restrictive border policies, followed by an assessment of their validity. Thereafter, the main trains of thought arguing for an open border policy are exposed: cosmopolitanism/liberal egalitarianism and utilitarianism. The paper also draws from the arguments put forth by a “middle way” scholarship, embracing those who contend immigration control should not be as restrictive as it presently is, but are skeptical of the “no borders” motto. Finally, the open border case will be assessed to evaluate whether it would be a feasible and desirable solution to eliminate most of the human rights concerns related to present immigration policies. 2 As Jalil Abdallah (2012) exposes, the militarization of the Greek-Turkish border has not discouraged the transient of people but rather led to a progressive abandonment of the traditional route across the border-river Evros towards often riskier alternative land or sea crossings, together with an increased dependence on smugglers. Further, the restrictive measures against immigration has engulfed asylumseekers and economic migrants alike, so that vulnerable people fleeing Syria and other Middle Eastern and Asian countries have resorted to smuggling networks to reach Europe seeking international protection. This trend, to also be observed in large emigration countries is widely shared across the literature.
Closed or Controlled Border Position Control over immigration raises fundamental questions about sovereignty, security and the identity of the nation. In the first two instances, controlling borders is the “inherent right to exclude all aliens” (Gigauri 2006: 4) that states possess as a legitimate expression of sovereignty (Altman and Wellman 2011). From a Hobbesian state-centric view, self-preservation and survival are at the core of states’ interests and, therefore, states have the right to restrict immigration on the basis of national security. Yet, there are important caveats to these arguments. If legitimacy is the yardstick to justify the right of nations to control borders, is it legitimate for States to curtail the voluntary interaction between people? Is not that an abuse of sovereign power over the fundamental freedoms and liberties of its citizens? Besides, as Euro-Mediterranean relations show, the ‘national security’ card has been played too far, using it as an unfounded argument under which arbitrary detentions, solitary confinement, ill-treatment to detainees, even torture to elicit confessions, and an endless list of human rights violations has been ‘justified’. At the same time, even if European member states have the “right to control its borders and its membership” (Altman and Wellman : ), they also have obligations under international and European law that constrain that right to a certain extent. As Gammelftoft-Hansen (2008) points out, the refugee presents an exception to the sovereign right to control immigration. However, as a result of an “immigration control mentality driving refugee policy” (Gilbert 2004: 1), European member states have circumvented their international obligations whenever possible. For instance, as a cornerstone of the refugee protection regime, European countries ought to respect the principle of non-refoulement, but as the Italian ‘push-back’ policy reflects, this principle has often been violated when people fleeing fear from persecution in Libya were sent back without any consideration whatsoever for well-documented human rights abuses in a country that is not even signatory of the Geneva Convention. The European Union champions universal human rights as the bedrock of their legal and constitutional system, whose compliance grants a “standard of political legitimacy” (Donnelly 2003: 12), but its immigration policies and practices have proved cynical with respect their political and foundational values, which are highly reliant on compliance with the rule of law. According to communitarian Walzer (1983), “states are simply free to take in strangers (or not)”, granting the political community the right to regulate immigration to protect their freedom, welfare and culture. But in order to secure a free-borders area, the management of the European external borders is increasingly moving away towards the countries of origin or transit countries in order to interdict people at the point of departure. As a result, North African and Middle Eastern countries have become “border zones susceptible to control and vigilance, where freedom of movement results obstructed” (Ceriani et. Al: 2), raising the question as whether this transference of migration control is in breach of the “right to leave one’s country”. Walzer’s argument is, thus, problematic on moral grounds, since in Euro-Mediterranean
relations, the protection of the EU’s freedom and welfare largely comes at the expense of restriction and misery in the MENA region. Wellman (2011) concedes that wealthy countries have obligations towards poorer countries to prevent the circumstances that give rise to would-be immigrants to desire to emigrate. These obligations, however, do not extend to duties to grant immigrants access to one’s political community. Then, what if those obligations are purposely eluded? For example, since the 1980s, neo-liberal reforms have framed the relations between the European Union and some countries south to the Mediterranean. In Egypt and Tunisia, these ‘deals’ led to political and economic disempowerment which shrunk people well under the threshold of poverty, unemployment and underemployment and restricted a number of human rights such as freedom of expression, association or right to a free press (Tetti & Gervasio 2011, Filiu 2011). In this sense, European liberal democracies have purposely rescinded their obligations to prevent the emergence and maintenance of such poor and inhumane conditions that have prompted citizens to cross borders.3 The above mentioned situation –not limited to this particular region, but occurring elsewherehas sparked a significant body of literature about moral responsibility, in relation with concerns about inequalities of neoliberal globalization. Certain observers argue that liberal democratic societies have the moral obligation to admit impoverished immigrants as a response to world inequalities and injustices, such as poverty and human rights violations. Adherents to this view contend that liberal democracies should consider far more permeable borders that currently are in place today, without defending a right to immigration or the “no borders” banner. Wilcox (2006: 3) argues, for example, that states have the “duty to mitigate global poverty as a humanitarian moral obligation”, especially so when they aggravate these injustices while engaging in external relations. Peter Singer and Peter Unger argue that we as individuals are obligated to alleviate severe poverty, irrespective of the nationality or geographical location of those affected, and regardless of whether we are directly responsible for their plight, provided we can do so without much sacrifice (Singer 1972: 229–43). Liberal cosmopolitans such as Charles Beitz and Thomas Pogge contend that affluent societies are obliged to transfer some of their wealth to poorer societies based on principles of global distributive justice. Thomas Pogge (2005) eloquently asserts that affluent democratic states have a responsibility towards the global poor because “we and our governments participate in a global order depriving them of the objects of their most basic rights”.
3 Egyptian migration has never ceased since the 1970s when the adoption of the 1971 Constitution authorized emigration. “After phases of greater and lesser migration in the 1980s and 1990s, Egypt is currently experiencing what has been called the permanence of temporary migration, whereby migration towards Arab countries is becoming less temporary and outnumbers long-term migration to Europe and North America. Recently a rise in migration to Europe - mostly irregular - especially Italy and France, has been recorded”. (Bartolomeo et al. 2010). Labor market’s poor performance is the main determinant of labor emigration flows from Tunisia (Bartolomeo et al. 2010), mostly highly-educated youth.
The arguments put forth so far show that immigration regulation is a mechanism of selective exclusion that mainly reflects discourses of national security and economic gain that contradict principles of equality and social justice. As significantly and even more worrisome is that as a result of restrictive immigration policies, refugees and asylum seekers are also engulfed in an unlawful closure of borders. Overall, the “principle of nationality outweighs the principle of humanity” (Cole 2000: 87). With view to invert this latter statement, open borders appears as a coherent solution or as a rightly alternative to troubling immigration policies. There is as a wide array of scholarship arguing for an open borders policy as diverse their arguments. Due to limited space, I will merely focus on two trains of thoughts that have greatly contributed to the debate with either a philosophical or a practical imprint, and assess them according to their feasibility or adequacy.
Open Borders Position or More Benevolence in Migration Control
Cosmopolitanism/Liberal Egalitarianism
A number of scholars depart from a moral conviction that an open border policy is not only the adequate, but also the just solution to respond to severe global inequalities. Their emphasis on global justice radically opposes Walzer’s idea that principles of justice apply only in the context of the nation-state, and their standing for universalism runs contrary to the state-centric view that favours closed borders, which in turn creates what Bido and Guildo (2005) calls “spaces of belonging and exclusion”. Pecaud and Guchteneire (2006) call for the adoption of the “right to mobility” as a relevant answer to the present immigration policies’ incoherencies. Drawing from the definition compiled in Art.13 of the Universal Declaration of Human Rights, they question -rightly I believe- what is the point in acknowledging the right to leave a country if the right to immigrate is not considered and largely constricted in practice? 4 Their bid for an open border policy or free international mobility rests on a cosmopolitan-driven analogy between the freedom of movement within the borders of a nation-state and across borders. Pecaud and Guchteneire further delve into the consequences of restrictive immigration practices as dramatically threatening the principles of liberal democratic societies, which brings us to another paradox in the context of Euro-Mediterranean relations. The EU has incessantly proclaimed its commitment to export its democratic values -even democratization strategies- to the countries in the Maghreb. At the same time, the EU through its restrictive immigration policy is highly reluctance to practice those values towards undocumented migrants.
4 Some authors contend that “immigration and emigration are morally asymmetrical” (Walzer 1983: 40)
or that the right to exit is more of a scapegoat from abusive regimes rather than as a human right valuable in itself (Blake 2012). Although Michael Blake’s argument is not ill-conceived, it makes the question even more preponderant since people escaping prosecution that might temporarily receive protection somewhere else, are also exposed to deportation even if the conditions remain largely the same in the origin country.
Joseph Carens deserves special attention for his extensive coverage on the matter, which makes any labeling of his work subject to inaccuracy. One of his arguments for open borders can better be framed from the liberal egalitarian tradition which places a special emphasis on moral equality and equal opportunity. He, thereby, identifies freedom of international movement as a basic liberty for everyone, independently of their place of birth. As he puts it: “Citizenship in Western liberal democracies is the modern equivalent to feudal privilege—an inherited status that greatly enhances one's life chances.” (Carens 1987: 252) According to him, citizenship is as morally arbitrary as discrimination on the basis of race or sex, and restrictions on immigration discriminately prevent non-citizens from accessing the rights and opportunities available to citizens according to the lottery of birth; thus, “liberal states have a prima facie duty to maintain open borders” (Wilcox 2009). Conversely, Michael Blake (2003: 233) argues that liberal states can restrain immigration without violating the principle of moral equality on the basis that obligations of distributive justice only apply to members of a shared political community. However, from the lenses of cosmopolitan principles of liberal egalitarianism, individuals ought to be protected on the basis of personhood (Sassen 1996), not nationality or citizenship, recognizing human beings as moral equals, universally. The right not to be discriminated is surely one of the benchmarks of a civilized society, which proves the moral arbitrary nature of immigration restrictions that differentiate people according to their nationality. In this sense, the arguments put forth by Carens and Sassen, but shared by many others, have a strong foundation to argue for open borders. Take as an example the European integration process. It firstly raises the question whether as Michael Blake suggests a shared political community is a condition for enjoying the rights that come along with it, such as the freedom of movement. A shared political identity is said to constitute a political community; however, it has been largely contested whether and to what degree European citizens share a political identity (Scheuer and Schmitt 2006). Then, under which grounds is it justifiable to grant freedom of movement amongst Europeans but deny it to others? Similarly, is it not discriminatory to promote the entrance of highly-skilled workers while undermining the talents of people whose purchasing power does not allow them to pursue higher education? Nonetheless, since this philosophical push might find it uneasy to bring the argument for open borders to the table of political will, I assess hereafter some of the arguments related to poverty reduction that are likely – or at least, have the potential- to present us the critical juncture to envision new approaches to international mobility. Utilitarianism
Gary S. Becker (2011: 13), laureate Nobel Prize, seemingly offers “a radical solution” to the challenge of labour migration. His market immigration proposal entails “using the price mechanism to limit immigration”. Becker argues: “If a fee of (say) $50,000 were charged, it would ensure that economically active migrants who had a real commitment to the country were most attracted. This fee could be used to lower other taxes”. Charging immigrants a fee for the right to enter, Becker says, is much more effective than the use of quotas or other
bureaucratic administrative systems to control economic migration. Whether this immigration tariff could be a preferred alternative for migrants when compared to the amounts that many pay to smugglers or the economic and social exclusion that undocumented migrants experience in the receiving state, it is a largely reprehensible solution regarding the ethics of the policy. Gary Becker's proposal of introducing market values into the field of human behaviour, and particularly in the area of immigration policy, treats refugees and migrants as property values. As Sandel rightly puts it: “It encourages the participants — the buyers, the sellers and also those whose asylum is being haggled over — to think of refugees as burdens to be unloaded or as revenue sources rather than as human beings in peril” (BBC 2009: 6). This “radical solution” can also be dismayed in practice by an emerging body of economists who argue for “migration as a development policy” (Pritchett, 2006; Anderson and Winters, 2008; Rodrik, 2011 as cited in Mukand). In fact, an international policy reform directed at easing restrictions on international labour mobility is attracting more and more adepts. Mukand (2012) suggests that lessening labour migration control would possibly do more to promote development and eliminate poverty than foreign aid or the liberalization of trade and capital flows. For instance, “a decision by developed countries to liberalize immigration restrictions by a mere 3% could result in an estimated output gain of more than $150 billion”. Many free-market supporters seem committed to resolve a paradox that many advocates for open borders have brought forward: the incoherence that whereas goods, services, capital and finances travel freely across borders, people’s freedom of movement is restricted. They strongly defend the ‘liberalisation of immigration’ given that its benefits overweight its costs. An outstanding contribution to this literature is that offered by Clemens, who asserts that “open borders would roughly double world GDP, enough to virtually eliminate global poverty” (Clemens 2011 as cited in Caplan 2012: 2). Arguably the most influential plight for open borders, further empirical evidence of poverty reduction and even to combat global poverty might coalesce into the sort of political willingness needed to open the borders.
Conclusion The increased apparent gap between immigration policies’ objectives and outcomes, the dubious effectiveness of such control policies to prevent irregular immigration, concerns about human rights violations explicitly or implicitly stemming from tighter border controls, with smuggling and human trafficking becoming byproducts of such policies, or a new emphasis on the impact of migration policies on global poverty and development have pushed some leading figures to abandon control altogether and advocate for an open borders policy. In the EuroMediterranean context –and elsewhere-, borders are to be regarded not only as barriers to human mobility, but also as factors of social stratification and discrimination. Arguments for immigration restrictions namely based on the legitimate right of states to decide upon their membership with views to protect national security, social cohesion, cultural
preservation or welfare provisions do not hold on moral grounds when that right is exploited to exacerbate injustices and inequalities. Further, the right to control immigration is constrained by the protection that ought to be granted to refugees and asylum-seekers; although the restrictive and extraterritorial measures in place shift the responsibilities to third countries, often employed by European countries to circumvent their obligations in international law. Yet, advocates for free immigration have garnered little political support due to a seemingly broad consensus that such liberalization means the political suicide of candidates suggesting an open borders roadmap (Chang 2003, Skeldon 2007), however much solidity arguments for open borders actually have. As David Harvey’s (2000: 195) states: “There is a time and place in the ceaseless human endeavour to change the world, when alternative visions, no matter how fantastic, provide the grist for shaping powerful political forces for change.” The epidemics exposed within the management of immigration flows and the ethical foundation of the immigration control architecture present us the critical juncture to envision new approaches to international mobility and bring them to the table of political practicality. Now, are open borders the solution? As illustrated, they might be the means to poverty reduction, and definitely the solution to mitigate the arbitrariness inherited in one’s birthplace, which largely determines the access to opportunities, wealth and enjoyment of human rights and fundamental freedoms. Whether it is a feasible solution, however, is to navigate in the murky waters of those same powers which have made of immigration control the rule, rather than the exception.
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