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date: 18 November 2018

Ethical Aspects of Migration Flows

Summary and Keywords

A comprehensive review of the scholarly literature that considers ethical questions surrounding human migration flows across international borders covers themes of membership and belonging, the right to exclude, the liberal impasse with regard to immigration, the role of property rights at the international level, movement through visa categories, and the problem of jurisdiction during migration journeys. Such an examination reveals that migration provokes a particular problem for international relations when the nation-state is the primary unit of analysis, and that the current literature acknowledges yet does little to correct a Western bias at the heart of scholarly work on the ethics of human migration flows.

Ethical questions regarding human migration have been at the forefront of news and public debate, particularly in recent years. The implications of human migration for membership in political communities have received much attention in political theory, international relations theory, international law, human rights, and ethics. Migration, by definition, challenges some of the key assumptions, categories, and ways of theorizing international relations (hereafter IR). The conventional assumptions of IR reproduce the notion that states as unitary actors interact with each other in a global sphere or within the confines of the international system and its structure and rules of behavior. In this rendering of the global, there is little room for people who seep outside of state borders, people who move with no national affiliation, or people who retain multiple national affiliations. The embodied contestation of the territorial categories of IR that is practiced by the movement of people is particularly relevant to constructivist IR theory. If the world is constituted through social interactions and intersubjective understandings, when social interactions happen across borders the intersubjective understanding of state units containing human populations is called into question. When people manifest multiple identities, the state-based identities of the international system are called into question. Studies of the ethics of migration flows then must tackle these lines of inquiry.

Keywords: migration, immigration, mobility, borders, citizenship, belonging, exclusion, territory, hospitality

Theorizations of the ethics of migration continue to grapple with the assumption of the sovereign state as a framework for theory, and the reality of the movement of people. The debate on the ethics of migration flows is far from resolved despite the fact that the literature often coalesces around key themes of belonging, hospitality, and border control. Migration presents a unique problem for the field of IR in that it exposes an inadequacy in many of the core assumptions and concepts of the discipline. Attending to the ethics of international migration flows requires interrogating the ethics of IR theory more broadly. With that in mind, this piece reviews important theoretical interventions while exploring some of the evident gaps and impasses in the literature. For example, much of the work in the ethics of international migration focuses on liberal assumptions and democratic political systems, and reasserts the dominant trope of poor-to-wealthy migration. Consequently, gaps in the literature are evident in that the majority of global migration happens from states in the global south to states in the global south yet this tends not to be reflected in the research paradigm. Instead, considerable emphasis is put on the ethical dilemma of wealthy states excluding immigrants from poor states. Similarly, the literature tends not to consider the ethics of immigration from non-Western cultural or ideological perspectives, the majority of work instead interrogating liberal approaches in one form or another. Thus, the liberal impasse in immigration as identified in Carens (1987) and subsequent work (Abizadeh, 2008; Carens, 2013; Cole, 2000; Mau, 2010; Wellman & Cole, 2011) is exposed and considered but is remade in the lack of attention to alternative perspectives.

Migration that happens through visa categories tends to fall into three general categories: family migration, economic (or employment-based) migration, and humanitarian migration. That said, it is perhaps necessary to recognize that all migration is to some extent underlined by economics, as restrictions to migration, specifically in wealthy states, operate through economic technologies or as Mau describes, a feudal system privileging the few and the wealthy, restricting the many and the poor (Mau, 2010). Birthright citizenship allows privileges to be passed down family lines (Shachar, 2009). Other immigration categories retain economic-based privilege. For example, in many industrialized states, a family-based petition is required to show proof of income. Student visas require the applicant to prove they have sufficient funds to live in the host country. Even the most common visas and immigration applications carry a fee. At the other end of the spectrum, the world’s leading experts, Olympians, and the super-talented are selected as the “winners” of the prize of citizenship as countries compete to attract them (Shachar & Hirschl, 2013). These technologies limit the possibility of migration for poor people. Thus, global inequality is at the heart of the debate of the ethics of international migration.

This piece provides first an overview of theorizations of belonging, hospitality, and the liberal (il)logic of immigration control as subject for debate in international political theory. The effects of the right to exclude are given consideration, attending to undocumented migration. Following that, attention shifts to the ethical debates with regard to movement within different visa categories, and the migration journey itself.

Belonging, Citizenship, and the Liberal Consensus

Migration raises the question of belonging: who has access to the rights and privileges afforded citizens? In the context of questions of belonging, the literature is dominated by a focus on liberal democracy as the form of governance that purportedly distributes rights and privileges to equal citizens. Much of the literature that deals with questions of belonging, citizenship, and migration attends to the distribution of civil and political rights, not least property rights (Fine, 2013; Risse, 2008; Ypi, 2013) and access to social and collective goods. The designation of the right to access particular goods then necessitates a consideration of identity: what makes insiders and outsiders, the understanding of us and them that permits the view that some things are “ours” and not “yours” (Marino, 2015)? After considering the designation of identity that determines who belongs and who does not, what then governs the extension of hospitality, and the responsibility to protect outsiders from harm (Hepworth, 2014; Niesen, 2007)? However, even before arriving at these questions of rights and designation of identity and access to the corresponding goods such as citizenship rights and responsibilities, it is evident that forms of social and political participation and belonging are not distributed equally to all people. The capacity of liberal ideology to deal with this disparity is a theme taken up by several thinkers, not least Joseph Carens (1987, 2013) and ultimately called into question. This section examines some of the theoretical foundations at the core of studies in the ethics of migration, attending to the liberal consensus, the unique role of property rights, and the concept of hospitality.

Liberalism and the Ethics of (Im)Migration

In discussions of the ethics of immigration control there is generally agreement that the liberal consensus is as follows: while some minimal control to protect the public interest is acceptable, restrictive immigration rules generally undermine liberal ideologies (Abizadeh, 2008; Carens, 2013; Cole, 2000; Wellman & Cole, 2011). Carens’ oft-cited (1987) article finds three liberal arguments to be inconsistent with immigration restrictions: Nozick’s libertarian emphasis on private property, Rawls’s “original position,” and liberal utilitarianism. Carens’s argument finds little liberal justification for state borders, given that a focus on private property recognizes only its relevance for individuals as opposed to collectives and does not recognize any “public” private property. In other words, states do not “own” the property of territory according to liberal assumptions regarding ownership. Therefore, the only justification for exclusion in the form of private ownership would have to be exercised by an individual and so would apply to aliens and citizens equally: the individual property owner is permitted to invite and exclude people from his property. The state administration only manages a social contract and thus cannot exclude those who seek to participate in the social contract and simultaneously remain consistent with liberal ideology. The state is not a private owner. Overall the essential inconsistency between liberal ideology and immigration control is that liberal ideology attends to the individual before the community and so is limited in its capacity to protect communally held goods or property (such as at the level of the nation state). Thus liberal arguments designed to protect national communities are difficult to sustain (Verlinden, 2010). The Rawlsian “original position” approach aims to account for the needs of the most disadvantaged in society; thus if immigration restrictions are seen as harmful to the disadvantaged and perpetuating disadvantage at the global level, the “original position” would eliminate immigration restrictions. And finally, the utilitarian calculus cannot permit immigration restrictions to protect the good of the privileged few in wealthy states compared to the many who may benefit from migration, at least insofar as the utilitarian calculus relies on economic arguments: The numbers that would benefit from migration would arguably be far greater than the few who would be harmed and the nature of the benefit would outweigh the nature of the harm (Bartram, 2010). The only case where immigration restrictions can be justified would arguably be a case in which the citizens of the state which advocated for restrictions would be made worse off, as a result of immigration, than those immigrating were before they migrated.

Perhaps the greatest challenge to the liberal individualist position is posed by communitarianism, which does not have to assume a global humanity of equal individuals. For example, David Miller argues that citizens have an interest in maintaining and shaping their own culture, something that would be undermined by broad immigration (Miller, 2005). Michael Walzer argues that states can be thought of analogous to clubs with the capacity to include or exclude members. However, the communitarian approach does not recognize a distinction between the public and private worlds—for example, the need for different approaches for a phenomenon that deals with something often considered innate versus something that is a free choice. In other words, there are essential differences in the human experience of participation in a voluntary group or club versus participation in something that one inherits involuntarily such as nationality, religion, culture, or ethnicity. This point is emphasized by Cole, who points to borders as warranting their own theorization that avoids analogy (Wellman & Cole, 2011).

Wellman and Cole (2011) argues that the principle of self-determination can justify exclusive borders, yet this requires accepting the ontological assumption of the bounded sovereign state. Walzer recognizes the necessity of the principle of justice for the nation state, yet Carens calls to question the ability of this caveat to administer justice given that any theorization of an in-group community (1) can only account for the principle of justice internally held by the group; and (2) differentiates by identity group, which means that this variation of liberal democracy becomes inherently incompatible with individual liberal freedoms: the differentiation is ascribed rather than individually selected (Carens, 2013). Abizadeh also contest the logic of self-determination as a means of justifying exclusion, considering whether borders can be sustained consistently with democratic theory. He finds that justification of borders for democratic self-rule and the principle of self-determination does not stand up to scrutiny. Abizadeh argues that the principle of democratic governance is unbounded; therefore, exclusionary borders can only be justified if those who are excluded participated in the decision to exclude (2008, 2012). Verlinden (2010) goes further to recognize that the arguments, such as Carens’s pragmatism, that observe immigration restrictions to protect peace and security are based on preserving order rather than pursuing justice and in that sense are not ethical arguments unless one is already invested in the moral value of the current order.

While the liberal approaches addressed above broadly interrogate the state’s right to exclude, it is worth examining the inverse of the right to exclude: the right to hold a membership of a state at all, regardless of the state to which the membership is attached. As long as states can exclude and can exclude on a differential basis (for example, some states practice jus solis and others jus sanguinis) and there is no international requisite that every person possesses a nationality, then some people will fall outside of the spheres of membership. Thus, it is necessary to examine the right to be a member or to have a nationality. Benhabib and Walzer address the right to be a member, yet both focus less on the specifics of the need to distribute membership through citizenship: for example, Benhabib argues that the right to membership ought to be open to all (2007), and is a general right, and thus needs to be theorized at the global level (2004, 2007). In other words, the specific legislation of a particular country might distribute membership to that country in a particular way, yet there should be some right to be a member that transcends those specificities. Walzer similarly recognizes the right to be a member of a community yet holds that states cannot be compelled to admit members; hence the membership can only be second to the rights of states (1983). Variations on this theme can be found in work by Wellman and Cole (2011) who debate states’ rights to self-determination versus a right to human mobility; Abizadeh (2008, 2012) who looks to the specifics of democratic theory as a means of justifying exclusion; and Shachar (2009, 2011) who problematizes the practice of distributing birthright citizenship, and examines the potential of a jus nexi. The latter would allow for an earned citizenship and would foreclose the removal of long-time residents or people who immigrated without documents as children. While this would potentially open routes to citizenship, it also presupposes rootedness as a value which may be problematic for transnational identities. Moreover, it potentially creates a second class of citizen who must prove their belonging as opposed to birthright citizens who are not compelled to meet a standard of rootedness. With regard to the issue of statelessness specifically, Belton (2011) argues that this is not comprehensively addressed in the extant theories of membership, finding statelessness as a concept to be “bracket(ed),” and warranting further attention.

Some scope to explore alternative theories of membership is promised in research on performative membership and performative citizenship, which constitutes membership or constitutes rights in its actions rather than its legal designation. This is explored at some length by Isin (2009) who looks to the practice of membership as constitutive of membership, and the practice of politics as constitutive of political subjectivity (Isin & Nielson, 2008). This work coexists with work in migrant agency, that which foregrounds expressions of rights by undocumented persons (McNevin, 2012); expressions of political agency by refugees against the expectation of “grateful victims” (Moulin, 2012); and the navigation of social participation and social community by migrants (Anderson et al., 2012; Johnson, 2012; Squire, 2011). A focus on performance reflects a shift in analytical attention from the state-based level to the experiential, contributing to different perspectives and circumventing the dominant assumptions of liberal governance that articulate membership according to the rule of law, property rights, and the social contract.

Exclusion and Undocumented Migration

Christina Boswell observes:

States retain the prerogative of excluding unwanted immigrants from access to their territory, and from the various services and goods associated with state membership. This prerogative reflects a historically evolved compact between states and citizens: the state mobilizes loyalty and compliance through guaranteeing its citizens privileged access to certain political rights and socioeconomic goods.

(Boswell, 2008, p. 188)

This is the premise for immigration restrictions in liberal states: the social contract requires membership to ensure ongoing recognition and observance of the rules. However, while states are relatively good at restricting access to certain political rights and socioeconomic goods they are less good at “excluding unwanted immigrants from their territory.” Of course, while technologically sophisticated border policing methods provide some of this capability to states, they don’t guarantee that only people with the “right” to be within a state are within state territory. Furthermore, through excluding some people from access to political rights and socioeconomic goods, there emerges a logic of exploitation. If there are people within the territory without the protections states reserve for citizens (such as a minimum wage, safe working conditions, and a reasonable standard of accommodation) then there is a chance people will not be provided these protections. Boswell (2008) notes the inherent contradiction in attempts to have states recognize the rights of people whose presence the state does not recognize.

The forms of excluding people from political rights and socioeconomic goods translate to power differentials that require further attention, indeed that generate attention in work in international ethics. Undocumented workers are cast into a position without rights, and this creates a culture of fear attached to seeking rights: people fear detection, detention, and deportation. Thus they do not seek rights even where the state will recognize them. Thus, potential exploiters—employers who do not want to pay minimum wage for example—then hold a relatively inflated amount of power. These power differentials straddle the work life and the home life, and maintain people in indentured servitude and slavery.

The distinction between the insider and the outsider is constituted not just in specific power differentials and relationships such as employer-employee but also constituted performatively as a relational process (Hepworth, 2014). More recent work that attends to culture and popular discourses recognizes a performative exclusion that can be observed in interactions between people (Hepworth, 2014), media images (Bleiker et al., 2013), and other discursive forms. What perhaps deserve more attention in IR are the forms of exclusion the literature itself practices as a still Western-dominated discipline.

Effects of the Right to Exclude

Much of the large body of work on the ethics of immigration pertains to undocumented migration, exclusion, and the difficulty in movement, which includes moving from one physical country to another, from one jurisdiction to another, and from an irregular immigration status to a regular one. Of course, theorizing about the ethics of undocumented migration is undergirded by the debates on membership and exclusion.

The Economics of Undocumented Migration

The dominant subject matter in the topic of migration in IR theory tends to be migration from poor(er) to (more) wealthy countries, despite the fact that, as stated previously, this comprises only about a quarter of international migration. Nevertheless, the characteristic power dynamics of this type of migration mean it provides scope for relevant debate in international ethics. Almost all visas carry some form of fee, which increases normally in conjunction with the rights and privileges the visa bestows. This fee operates as a gate to deter or prohibit the migration of the poor (Mau, 2010). In addition, medical examinations, biometric documents, and other supporting material for an immigration application (such as the cost of travel to an embassy, or the specialist knowledge often required to process a visa application successfully) establish further barriers. For many visa types an applicant is compelled to show evidence of income or a minimum amount of capital, return airfare, and accommodation and living costs to fund the length of stay in a foreign country. These requirements are designed to deter people who are travelling to a country with intent, but not permission, to remain. For example, the European Union designates according to country of origin the extent of the requirements that one must meet to prove they have intent to return after a visit. Certain countries are considered to be likely senders of economic migrants or asylum seekers. The EU visa regulations ask for travelers from these countries to meet a higher burden of proof than visa applicants from other countries. The countries of origin for which a higher burden of proof that one has intent to return is required by the EU are named on a designated “black list.” People from those countries must demonstrate that they have money to sustain them during their stay and that they have intent to return to their home countries, with particular attention devoted to “persons in special risk categories, the unemployed, persons without regular incomes, etc.” (Gammeltoft-Hansen & Gammeltoft-Hansen, 2008, p. 449, citing 2005/C 326/01, section V). The “black list” includes a number of states whose residents need an additional transit visa to pass through any EU airport because they are considered “high risk” asylum-sending states. All but two of them (Iran and Iraq) have a low GDP per capita, indicating they are both poor and populous. The assumption is that they would send high numbers of people who would not meet the asylum definition and who were motivated by economic incentive were there not additional visa checks. All of these factors already significantly reduce the ease with which poor people can travel from one state to another and remain within the confines of immigration law. This is of course an effect of states practicing a right to exclude.

Moreover, the relationship between documented and undocumented migration is not a simple one. As Anderson (2008) notes, visa categories often come with caveats that make it easy to shift to an undocumented status. For example, a visa might be tied to an employer or a particular profession. If one leaves that employer or profession, or takes on additional work, then the leave to remain might be voided. Work looking at targeted labor immigration has raised questions of exclusions, “othering,” and race and ethnicity. Calavita (1998) and Triandafyllidou (2000) consider links to targeted migration: for example, Calavita looks to the legal difficulty in maintaining a temporary worker status, concluding that despite discourses of multiculturalism, the law itself functions to maintain separate populations with unstable and changing immigration status who, despite migrating on work visas, can never fully integrate into the country and even when in (albeit unstable) regular immigration status remain constituted as “other.”

It should be briefly noted that much undocumented migration happens because documents are not available. In many cases—particularly in the context of people fleeing conflict and state-sponsored persecution—documents are physically or politically inaccessible or both. Chauvin and Garces-Mascarenas (2012) draw attention to the moral economy of the practice of restricting less formal certifications of belonging, such as the documents indicating presence or reliable conduct distributed to irregular migrants as proof of their standing: as states cast possession of these documents as proof of willing illegality, it becomes still more problematic for migrants to obtain a form of civic personhood. Thus a large number of people who are compelled to leave their country of origin, or who are stateless, migrate without documents because documents are not accessible to them. They are then compelled to remain without immigration status in unforgiving receiving countries. These effects of the right to exclude deserve further attention in international ethics.

Interrogating Property

Territory is often at the heart of debates about migration as it forms the basis for jus solis citizenship, and it constitutes the geographic organization of state power. Circumstances of undocumented migration are often the result of being present on a territory without permission to be present. Given that Carens’s argument addresses some of the inconsistencies at the heart of liberal theorizing, it is worth considering the context of private property, territory, sovereignty and exclusion in IR theory more broadly. It has been argued, alternatively to the above liberal individualist positions, that state sovereignty to some degree functions in a similar way to individual property. For example, territorial sovereignty was established as a formative aspect of the modern international political organization in order to fix in place the right to rule. Ruggie (1983) contrasted the modern and medieval systems of property rights, examining how the international system has changed over time, and argues that the modern system was founded on a specific understanding of property rights, in that “the modern system of rule consists of the institutionalization of public authority within mutually exclusive jurisdictional domains” (Ruggie, 1983, p. 275), with sovereignty representing the totalization of property rights for the public realm. Such an understanding of property as territorial jurisdictions has become constituted as a self-evident truth in IR, a core assumption of the contemporary international system. For Ruggie, private property and sovereignty are analogous concepts, in that they differentiate amongst units in terms of possession and exclusion, both private property and sovereignty establish a system of social relations amongst the units, and both private property and sovereignty are constituted theoretically based on the minimalist social needs of the component units (that is, the social contract to respect private property and the international contract to observe other states’ sovereignty) (Ruggie, 1983, p. 275). Similarly, Walker (1990) recognizes “the principle of spatial exclusion” (Walker, 1990, p. 10), as constitutive of the contemporary system, yet it is a constitutive principle that establishes a contradiction between the claims of “people as people” and the assumption of a common humanity, and the claims of citizens of particular states to sustaining rights and privileges of citizenship through excluding others. The latter claims citizenship as prior to any assumed common humanity (Walker, 1990, p. 10). In this way, rather than differentiating the public and private domains of property, sovereignty becomes a “scaled-up” or systemic level form of property rights, understood as a principle of spatial exclusion, at a distinct level of analysis in IR. The property rights of states as unitary actors in the international system function as sovereignty under a particular social contract in which the states are the social units. However, to understand sovereignty in this way does not account for the movement of people amongst states because states take on characteristics of actors with agency. The movement of people is constituted at the individual or substate level of analysis and cannot then be accounted for at the systemic level. In these contexts, the modern concept of sovereignty coexists with the concept of fixed property rights, even while undermining the concept of property rights as universally applied. The modern system organizes subjects collectively into territorially defined, fixed, and mutually exclusive zones that affirm a specific account of who we are by establishing state-based identities (Ruggie, 1993; Walker, 1990). The link between state sovereignty and identity constructs the nation state, which combines the governing legitimacy of the sovereign state with the naturalized notion of belonging to an innate human collective. Herein lies the privileged position of being in possession of a state-based identity and the logic of excluding those who “do not belong.” Furthermore, as long as state sovereignty remains the organizing theoretical principle of IR then people who do not have a state-based identity or who move outside of state borders cannot be properly accounted for in IR theory.

Membership, Territory, and Identity

While the above discussion of property rights offers insight into the relationship between sovereignty and territory, it is perhaps necessary to unpack the idea of membership and how it relates to territory in order to grasp the significance of migration in IR as it challenges both liberal ideology and theories, and the concept of state-based IR. Key to claims to territory are the linkages between the way one receives membership: whether claims to territory are justified through Lockean property rights, ideas of formative national attachment, inherited membership, or through present-oriented notions of jurisdiction. The concept of inherited membership functions as a racialized means of exclusion: the only way one is included is if one is born into the particular group, reproducing a notion of belonging that is innate and held in one’s physical being, thus already problematic for liberal ideologies, even those that acknowledge a potential ethics of exclusion. Ypi (2013) argues that the theoretical justification for exclusion at the state level tends to be flimsy. For example, the theoretical justifications for establishing sovereignty over a given territory are normally composed of a claimed right to jurisdiction; a right to control, exchange, and transfer natural resources; and a right to control the movement of people in and out the territory (for some examples see Gans, 2003; Kolers, 2009; Meisels, 2005; Miller, 2011; Nine, 2012; and Pevnick, 2011 for acquisition- and legitimacy-based theories). Yet, for Ypi, each of these claimed rights relies on an a priori assumption of the right to jurisdiction, which is then tautologically reinforced in distinctions between “legal” and “illegal” immigration. When liberal cosmopolitan theories interrogate the ethics of migration flows, they tend to foreground the problems the exclusive right to territory at the state level provoke for distributive justice and attempt to mitigate these problems without undermining the assumption of the assumed right to territorial jurisdiction (Kymlicka, 2001b; Moore, 2012; Seglow, 2005; Steiner, 2005).

The inconsistencies between liberalism and immigration restrictions can perhaps be assessed according to assumptions regarding identity. A communitarian starting point promises to offer quite different conclusions from those of the individualist assumption of a universal egalitarian humanity. For example, Risse (2008) argues that if one assumes a common humanity, immigration can then be understood as a form of redistribution towards the global poor both in terms of immigration and in terms of remittances. In a similar vein to Ypi, Risse critiques arguments based on self-interest at the state level as they require the assumption of legitimacy of the state system, thus already limiting the potential for an argument on the ethics of international migration pertaining to a common humanity. Various approaches similarly question the ethics of the nation-state system as they relate to immigration restrictions, including that of Castles (2014) who observes that current studies of international migration are as lopsided as the subject matter. For instance, the majority of studies of the pros and cons of international migration are centered on the interests of wealthy industrialized states or the (social and political) interests of their citizens. However, these states assume an unending demand for migration that provides them a supply, consequently allowing these wealthy states the capacity to pick and choose whom to permit entry and whom to restrict: to levy a high tax on immigration. Castles argues that this is a relatively narrow assumption and reflected in a literature that remains narrower than its potential scope. Additionally, the dominant narratives in wealthy migrant-receiving states that are used to advocate for immigration restrictions are often those of national “purity” and identity. Nevertheless, restricting immigration has often has little bearing on who or how many people migrate; rather it opens up people to exploitation and vulnerability (for examples focusing on US-Mexico immigration see Andreas, 1998; Andreas, 2005; Nevins, 2007). Furthermore, imaginings of national purity are exactly imaginings rather than realities, in that national identities shift and change over time, organically incorporating multiple groups (Abizadeh, 2012; Castles, 2014; Weber, 2011). This theme is taken up by Marino (2015) who examines the mechanisms of power in immigration strategies applying crowd theory. Marino concludes that immigration becomes racialized in the sense that it separates migrants into “good” migrants who are likely to assimilate and “bad” migrants who are unlikely to assimilate, remain culturally distinct, and are potential criminals and terrorists. These assumptions reproduce ideas of “innate” goodness and badness that accentuates the assumption of innate superiority of a national group. She claims that discourses of multiculturalism and tolerance tend to isolate immigrant individuals and groups and draws attention instead to a discourse of transnationalism that can invest into changing and hybrid identities rather than cultural or national absolutism.

Hospitality

The approaches of previous sections focus quite specifically on the issue of membership in the state or the relevant political community. It is necessary to consider the ethics of migration not in the context of full membership, but in the context of the right to access. This is often evoked with regard to humanitarian migration and will be addressed below, yet the ethical obligations on a community to recognize principles of hospitality and to extend protection from harm are also worthy of brief note here. This form of migration stands apart from those arguments pertaining to membership as it assumes recognition of separate established communities (as one would not need hospitality if one had the right of membership). Niesen (2007) takes up this theme in the context of Kantian cosmopolitanism, although he argues that hospitality is more relevant for situations in which migration is forced rather than voluntary. He argues that prospective migrants should not be criminalized but there is no obligation to offer migrants economic opportunity. However, where migration is forced, hospitality ought to be extended in accordance with the liberal ideals of freedom such as freedom of movement and the right to bodily integrity (the former having already been violated for subjects of forced migration since their movement was not free but involuntary) and the right to communicate. That said, the tradition of hospitality carries relevance: in political philosophy there is a strong history of a duty to offer refuge and a concept of responsibility towards the stranger (see Arnaout, 1987 for early Arab-Islamic concepts; Bau, 1985 for concepts in the Judeo-Christian tradition; and also a 1996 special issue of International Migration Review entitled ‘Ethics, Migration and Global Stewardship’, which attends to various cultural perspectives on the theme, including Christian, Jewish, Islamic, and Confucian theories of international migration). There is scope for these alternative approaches to concepts of refuge and responsibility to be developed in IR theory and international ethics.

Migration Flows: The Movement of People

While membership focuses often on permanent immigration and citizenship, the ethics of movement also deserve attention. Regular migration is categorized into three distinct groups, some of which may cross over in specific cases yet are normally governed separately. These are humanitarian migration or forced migration (such as the movement of refugees and asylum seekers or victims of natural or humanitarian disaster); economic migration (such as people who migrate through temporary and long-term work visa programs); and family migration (such as spouses, children and parents who move to join family members). These distinct categories also tend to be subject to different ethical assumptions. Thus what follows will briefly raise issues of ethics in family migration, economic migration, and humanitarian migration underscoring consideration with the caveat that while these are all documented forms of migration, there is often some crossover with undocumented and irregular migration, which of course raises further scope for international ethics as discussed earlier.

Family

Family migration is often thought of as the least problematic category of regular migration at least in liberal states where having a close family relationship (such as spouse or parent-child) provides the legal basis for immigration. In the ethics of family migration three dominant themes emerge, although there is not an extensive literature on family migration. These themes are mixed status families and separation, the governance of family immigration and mitigating risk, and sexuality and family immigration.

In terms of mixed status family immigration, much of the literature has been focused on the United States where this issue has gained some attention following high-profile deportations, such as that of Elvira Arellano in 2007 (de Genova, 2009, 2010; Peutz & de Genova, 2010). Similarly, the question of children who cannot be simply understood as immigrants yet are not (legal) citizens, such as children who were taken to the United States in infancy by their parents but have no memory or attachment to another location, is one that is raised in studies of US citizenship (Shachar & Hirschl, 2013).

While the work on mixed-status families looks to the occurrence of and the potential for separation, growing restrictions on family migration, particularly in Europe, raise several questions with regard to the recognition of a right to family life. For example, the UK government in 2012 set a minimum income for spousal visa sponsorship, supported by the logic of avoiding “sham” marriages and protecting young British Asian women from potential abusive arranged marriages. Attention to this phenomenon has been situated in theories of governance, looking to processes of governmentality that function to mitigate risk—both to the British citizens who may participate or be taken advantage of, and to society in general that might be exposed to people who become a “burden” on the state (D’Aoust, 2013). In Danish family migration the potential for a visa is governed by a points system that requires the couple to be over twenty-four years old, be able to prove financial independence, and to demonstrate a commitment to Denmark over the home country of the immigrant. Similarly to those in the UK, these requirements are defended as a form of protection—for girls who might be subject to arranged marriages by their families, and for the state as a means of curbing net migration. Little work has been carried out to date on the racial, ethnic, and religious implications of such policies, concentrating instead on how they feature with regard to private and family life (for some exceptions, see Innes and Steele, 2015; Turner, 2015). As restrictions in family immigration increase, this is an area that deserves further scholarly attention.

A newer body of work looks to sexuality in the governance of family-based migration. This is a more recent topic and has yet to be developed extensively, yet given the breach of the public and private spheres that must happen in family-based immigration controls, it represents an important gap in the IR theory and international ethics literature. Much of the literature that exists is in international law (e.g., Andrijasevic, 2009; Lister et al., 2007, and see also Carens, 2013). Simmons (2008) considers the narrow definition of “family” in immigration restricting nontraditional partners and same sex partners from family reunion immigration, thus extending a heteronormative assumption of family life. On the other hand Peterson (2014) examines the ways in which normative heteropatriachal principles are reproduced in the immigration regime through access to citizenship and calls for further attention to this phenomenon. In addition, Peterson argues that queering the conventional narratives of migration reveals how these same heteropatriarchal principles are constitutive of the very economic inequalities that often inspire and even make necessary international migration. It is important, then, to note that family migration or indeed any of the separate categories of immigration are not necessarily isolated from each other in practice. In other words, family migration might be economic migration and might be humanitarian migration that is happening through the family migration category. Visa law separates categories of entry and the distribution of goods and services on entry yet often does not—cannot—reflect the complex realities of human experience that might incorporate humanitarian, family, and economic motivations that are related to and constitutive of each other. While Peterson’s work on queering migration and citizenship is as yet tentative research, it illustrates the potential contribution of queer theory specifically for family migration as it breaches the public and the private, challenging the heteronormative structures that family migration produces and sustains.

Economic Migration

Economic migration as a category certainly straddles the separation between “legal” and “illegal” migration and is also implicated in the different regular immigration categories. It ought to be noted that there is not a humanitarian category that permits economic migration. Indeed the only economic migration permitted is carefully designed to contribute to the economic needs of the state (in the context of targeted migration and special visa categories) and to avoid floodgates opening to the global poor. The latter concern so preoccupies states that great care is taken to avoid the entry of people who may have self-interested economic motivations. For example, forced migration is such that an asylum seeker must bear the burden of proof that he or she did not exercise any choice in his or her movement. The asylum seeker must be entirely passive, to the extent that onward migration from a “safe third country” or transit state is often considered to be voluntary and therefore will undermine an asylum claim (Elie, 2010; Haddad, 2008; Innes, 2015). Poverty is not considered a humanitarian explanation or justification for migration, a topic further considered below.

Regular economic migration that occurs through visa law has raised questions in international ethics both on the part of sending states and receiving states. In the context of sending states, attention to the phenomenon of “brain drain” is prevalent (Cole, 2000; Kapur & McHale, 2005; Risse, 2008). Moreover, Shachar and Hirschl (2013) raise ethical issues related to brain drain in an analysis of “super talent” migration. This involves world leaders in sciences, arts, and sports who are actively recruited for citizenship by governments wanting to increase their pool of talent in a given area. The authors point to the issue of “creaming” talent, and develop this attending to the practice of states using membership as a “prize” for the talented. They argue that this undermines fundamental principles of democracy such as equal participation, erodes access for the nonremarkable, and has implications for theories of national identity and self-determination.

In receiving states attention is often paid to the marked distinctions that the state constitutes to separate citizens and noncitizens. These include such things as access to labor markets (Anderson, 2008) and access to welfare and social services (Kymlicka & Banting, 2006). Lenard (2012) attends to questions of consistency in the logic for restricting immigration, noting that arguments against permanent immigration often purport to defend culture from dilution, to maintain functional democracy, and to maintain a strong welfare state. However, while these arguments often then assert the ethical benefits of temporary migration, Lenard finds temporary migration to be equally problematic in the aforementioned categories.

Refugees and Asylum Seekers

The question of humanitarian migration is one that generates much attention in international ethics, given that humanitarian migration is focused on people who seek specific protection from harm. There has already been an ethical “wrong” that has forced the movement of people, yet there is an unclear distribution of responsibility to right that wrong. The categories of humanitarian migration are limited. Humanitarian or “forced” migrants are held as separate from other categories of migrant: those that immigrate to a country in a humanitarian category often become eligible for residency and citizenship more quickly than those in family-based or economic categories; indeed the latter often do not become eligible for a permanent status at all. Yet the expedited access to permanent status means that humanitarian migrants are subject to a high burden of proof that their migration is forced rather than willful. The separation between forced migrants and other migrants and the high standard set for qualification in the humanitarian category maintains the understanding of the refugee as a burden to the state (reproduced in the rhetoric of “burden sharing”) and constitutes the assumption that refugees take from rather than contribute to the state. As a consequence, despite refugees and asylum seekers representing people in need of protection, they are often constituted as the least valuable migrants to states and therefore more restrictions and barriers are constructed to prevent their (legal) entry to the state. This creates a hermeneutic practice whereby the characterization of the refugee as a burden then constitutes the refugee as a burden to the state.

A refugee, according to the 1951 Refugee Convention and 1967 Refugee Protocol definitions, is “A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or . . . unwilling to avail himself of the protection of that country” (UN General Assembly, 1951). The refugee definition is a product of the contemporary international system of nation states and the principles that combined human rights with recognition of state sovereignty at the founding of the UN. Limitations in the refugee definition can be accounted for in the global politics of the time period, whereby World War II left more than two million people displaced. State governments, fearing destabilizing influxes in a period that had been rocked by conflict yet confronting the shame generated by the exposure of the extent of Nazi atrocities, sought to recognize human rights, yet share the burden of doing so. In that context, the refugee definition was designed to protect the most vulnerable: people who were in danger of persecution. However, it does not afford the right to remain or the right to immigrate in a state. That remains subject to state sovereign jurisdiction. Additionally, the definition is not liberally applied. Persecution is assessed on an individual basis. Thus the application process purports to weed out and protect those who need protection the most, while allowing states to protect their borders and populations from massive destabilizing influxes of people. Hannah Arendt’s work has been influential in IR theory pertaining to questions of refugees and asylum seekers. She explores the connection between the development of the refugee definition and the mass movement of populations that were considered economically or politically threatening in The Origins of Totalitarianism. Arendt posits that the growth of nationalism in Europe created stateless minorities. The rights of citizenship were predicated on belonging to a state, and nationalism caused the state to be conceived as ethnically homogenous. The very fact that stateless people “without nationality, without money, and without passports” were crossing frontiers seeking protection in large numbers hardened the borders of states and undermined the notion of universal human rights (Arendt, 1972). In this way, sovereign territorial borders and the nexus between the territory and the nation are essential to the existence of refugees.

The theme of agency in the literature on refugees in IR has emerged in recent work which both calls to question the assumed forced passivity of the refugee and interrogates the logic of a dichotomy between forced and voluntary migration (den Boer, 1998; Haddad, 2008; Innes, 2015; Johnson, 2012; Long, 2013; Moulin, 2012; Tsoukala, 2005). Refugees were constructed in the international environment as the most vulnerable people. Such a construction assumes passivity, which is then manifested in refugee process and practices. In this way, the processes and practices in which refugees are constituted and maintained (such as the refugee camp) produce refugees as grateful victims rather than potential political agents in possession of corresponding membership identities. Asylum seekers can be differentiated from refugees as people who seek refuge and protection at the borders of a state. The states that recognize the 1951 Refugee Convention and the 1967 Refugee Protocol distribute protection based on the refugee definition. However, the burden of proof that a person meets the refugee definition is generally placed on the migrant who must illustrate that he or she was forced to migrate, rather than elected to migrate. This correspondingly constitutes the notion of “bogus” asylum seekers who seek leave to remain despite not meeting the refugee definition. A suggestion of agency undermines ones identity as a refugee—and at times shifts ones status in international law and international sovereign jurisdictions. For example, Elie (2010) tracks a shift to designate onward migration from a “transit country” as an expression of agency that is then taken to undermine a refugee identity in a receiving country. Work in the ethics of migration has interrogated the question of agency with regard to refugees and the consequent implications of attributing agency. Related to the theme of agency are some distinct issues in the context of refugees and asylum seekers. These will be addressed in what follows with regard to the question of refugee camps, freedom of movement in the asylum journey, and the detention of asylum seekers, all of which receive (and deserve) attention in IR theory and international ethics.

Freedom of Movement, Refugee Camps, and Asylum “Reception” Centers

The movement of refugees and asylum seekers is the subject of much attention across disciplines relevant to international ethics, including IR, geography, migration studies, political sociology, development studies, and political theory. There has been some focus on research concerning the refugee camp and the detention of asylum seekers. Restrictions to the freedom of movement of migrants pose particular problems for liberal conceptualization of rights and freedoms; thus they are often evoked in the context of security. Refugee camps as first sanctuary are least problematic, yet attention has been drawn to the restricted movement of inhabitants of refugee camps (Johnson, 2012) and to the prolonged nature of life in refugee camps. Giorgio Agamben’s (1998) Homo Sacer has informed much of the work on the concept of the refugee camp and the constitution of the refugee in a state of bare life, outside of the law and outside of society. This creation of the “outside” is necessary to legitimate state power, which needs an inside or a sphere wherein its power applies as much as it needs an outside to define its borders (Innes, 2015). On the other hand, the unproblematic acceptance of the refugee as the example par excellence of bare life is in itself problematic: to conceptualize the refugee in a state of bare life reproduces the refugee as a passive figure, a victim, and denies attention to the political voice of refugees and asylum seekers. As Bigo clarifies, “Agamben ignores the resistance of the weak and their capacities to continue to be humane and to subvert the illusory dream of total control” (Bigo, 2007, p. 12). Thus work that has examined refugee agency includes Moulin (2012), who argue that activist refugees can be understood as participants in global civil society. The authors build this theory of global civil society through a theoretical excavation of the action of Sudanese refugees in Egypt that drew attention to gaps in protection offered by the UNHCR. Refugees in this context are understood as global political actors, given that the conversation in which they participated was with a UN office, an international organ, rather than a state. Various understandings of political action on the part of refugees and asylum seekers show the refugee not as a victim but as a political actor, theorizing a global public sphere, a global civil society, or the agency expressed by refugees and asylum seekers in state politics (Budz, 2009; Johnson, 2012; Nyers, 2006).

This focus on refugee agency of course cannot be wholly separated from the detention of asylum seekers at state borders. Camps at the borders of liberal states, specifically Europe, the United States, and Australia have generated the majority of attention in IR theory, given that they pose the greatest problem for liberal imaginings of these states. The connection to liberalism has been theorized as part of the process of the “privatization of sovereignty” (Doty & Wheatley, 2013) and in the context of disciplinary power, sovereignty, and governmentality (Bigo, 2007; Darling, 2011; Gill, 2009; Nicholls, 2014; Squire, 2009). The processes of the exclusionary governance of asylum seeking have raised questions regarding the physical aspects of space. The meaning of physical space is reinforced at borders where keeping bodies outside, on the “other” side of the fence, is meaningful, as outside of the sovereign territory and the physical space of the state means outside of (state) responsibility (Johnson, 2013). That said, conceptual space, jurisdictional space, and sociopolitical space are all called to question on the inside of (liberal) state borders where people can be inside the territory but outside of jurisdictional access to rights and outside of social and political spaces. Attention in these cases has been given to asylum applicants with cases in progress (Darling, 2011; Gill, 2009; Innes, 2015); failed asylum seekers (Innes, 2014); and irregular migrants. Thus space as a concept is itself implicated and theorized in work on the ethics of migration that must determine what space is meaningful in the contemporary world, and how space is differentially experienced according to different subject positions.

Between Jurisdictions: Ethical Implications of Migration Journeys

Additional work on space in the ethics of migration flows sees much attention focused on the immigration journey in the context of humanitarian migration and the particular governance of humanitarian migration, specifically in the context of liberal states. For example, the journey itself is to a large degree ungovernable, given that it happens when one leaves one jurisdiction (the home state) and continues until one receives status in another jurisdiction. The fact that much of the journey happens in a “space in between” without immigration status is particularly meaningful. Until an asylum seeker or a refugee receives formal status he or she is incorporated into the domain of undocumented migration. Thus the journey is not limited to the mode of transportation from the home country to the receiving country, but is about the transition from citizen, to persecuted citizen, to displaced, to travelling without status, to asylum applicant, to asylum receiver or refugee. This transition involves physical movement, but often it also involves physical stillness as movement is restricted after entering a safe third country and while an asylum application is in progress. The governance of the migration journey has to date focused on restricting the journey, For example, work on transit countries, safe third countries, and offshoring of immigration controls suggests that the nature of the issue is that global North states extend their capacity to govern and their policies outside of their borders, yet this limits the potential for and likelihood of humanitarian protection for people who are subject to offshored immigration controls that limit their movement (Elie, 2010; Karatani, 2005; Long, 2013). While the governance of the migration journey is covered most extensively in work on human rights and international law (Gammeltoft-Hansen & Gammeltoft-Hansen, 2008; Klepp, 2010; Moreno-Lax, 2008, 2012), it raises pertinent questions for international ethics and it interrogates the reach of humanitarian protection, the differential treatment of different bodies, and the limits to liberal rights and freedoms as rights and freedoms are often curbed in the interests of security.

The different spaces that function as zones of exclusion often constitute the difference between legality and illegality, between documented and undocumented, and between regular and irregular immigration. Humanitarian migration is the most important in this context as immigration restrictions and zones of exclusion often come into play for people seeking humanitarian assistance, consequently constituting those people not as refugees or asylum seekers but as excluded economic or voluntary migrants.

Migration journeys fall into a space that is ungoverned and ungovernable: people who move from one place to another are often outside of jurisdictions—they have left the home state jurisdiction and have not yet formally entered a receiving country. The journey perhaps presents the most problematic part for IR because the journey is the moment at which the person is not contained in a state and thus cannot be subject to state-based theories. Work in international law attends to the legal restrictions that spread outside of state borders, offshoring immigration controls that shift the legal boundaries of states. On the other hand, migrant-centered work looks to the physical experience of the journey and the ethical impact of ungovernable spaces, such as in journeys through central America and Mexico toward the United States (Brigden, 2018); journeys on the Mediterranean (Mainwaring, 2014); and journeys in Africa (Collyer, 2010). Additional work questions the concept of a linear journey, observing the Dublin II regulation in the United Kingdom and the “neverending” aspect of migration journeys (Innes, 2015).

The inverse of the migration journey experience is that of forced removal, which has generated increasing attention in recent scholarship. Much of the work on deportation has attended to the threat of deportation, and the administrative process of deportation (De Coleman, 2007; Genova & Peutz, 2010). However, the actual process, the journey and the vehicles enabling the deportation, have received less attention. Walters attends to the physical space of the deportation journey—the aeroplane—and the specific politics of this space “in-between,” arguing that is renders a passivity in passengers. Collyer (2012) also examines the micropolitics of exclusion through deportation practices. Finally, the relationship between agency and passivity in the context of the journey requires further excavating: migrants who seek humanitarian protection are required to perform passivity. The journey itself must be forced. In removal journeys passivity is compelled by things such as handcuffs and shackles and by tranquilizers. As Walters examines, the space of an aeroplane is constructed to be an apolitical space, a space of passivity.

Thus there is work to be developed on irregular migration flows (or stoppages) and the different spaces that emerge in which people move that are incorporated into the ethics of migration as constituted at the state level of analysis.

Conclusion

This review has examined the ethics of migration flows from the context of theories of belonging and citizenship and theories of the ethical dynamics of a state’s right to exclude people. It has considered the effects of the practice of the right to exclude (particularly undocumented migration and living without immigration status); the international dynamics of property rights; and theories of membership, identity, and hospitality. In terms of the physical movement of people, this chapter has considered family-based migration, economic migration, and humanitarian migration (while acknowledging that in practice, migration cannot be separated so precisely). Much attention has been devoted to humanitarian migration in the context of ethical debates regarding refugees and asylum seekers, immigration detention and removal, and the migration journey itself, which often sees the individual outside of official jurisdictions and therefore lacking legal and humanitarian protection.

While there is unquestionably a diverse and growing body of work on the ethics of migration flows, there are also some distinct gaps in the literature that need to be filled. There is little work on theoretical perspectives on migration outside of those of the West in international ethics. While these perspectives are growing in empirical work, development studies, and political economy, there is a notable absence from IR theory and from normative theory in IR, which tends to reproduce the dominance of liberal ideologies, even while critiquing and interrogating these ideologies. Furthermore, there is little work that does not posit the migrant as exceptional in some way. A globalizing world replete with transnational populations and transnational experiences calls for studies of the normalcy and the everyday experience of living with a transnational political identity and the impact this has on how international politics are performed, constituted, and understood in order to move beyond the state-dominated paradigm.

Further Reading

Abizadeh, A. (2012). On the demos and its kin: Nationalism, democracy, and the boundary problem. American Political Science Review, 106(4), 867–882.Find this resource:

Benhabib, S. (2007). Twilight of sovereignty or the emergence of cosmopolitan norms? Rethinking citizenship in volatile times. Citizenship Studies, 11(1), 19–36.Find this resource:

Bleiker, R., Campbell, D., Hutchinson, E., & Nicholson, X. (2013). The visual dehumanization of refugees. Australian Journal of Political Science, 48(4), 398–416.Find this resource:

Carens, J. (2013). The ethics of immigration. New York: Oxford University Press.Find this resource:

Fine, S., & Ypi, L. (Eds.). (2016). Migration in Political Theory: The Ethics of Movement and Membership. New York: Oxford University Press.Find this resource:

Niesen, P. (2007). Colonialism and hospitality. Politics and Ethics Review, 3(1), 90–108.Find this resource:

Nine, C. (2012). Global justice and territory. Oxford: Oxford University Press.Find this resource:

Pevnick, R. (2011). Immigration and the constraints of justice: Between open borders and absolute sovereignty. Cambridge, UK: Cambridge University Press.Find this resource:

Shachar, A. (2009). The birthright lottery: Citizenship and global inequality. Cambridge, MA: Harvard University Press.Find this resource:

Ypi, L. (2013). Territorial rights and exclusion. Philosophy Compass, 8(3), 241–253.Find this resource:

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