Ethics vs. political philosophy

Carens’ book proposes an ethics of migration from both an ideal and non-ideal theoretical perspective, even though, as he claims in the second, ideal theoretical part of the book, this distinction largely dissolves once we have read his treatment of different categories of migrants and what is owed to them within liberal democratic societies. The original grounds for the distinction lie in the claim that ideally, the world should be one of open borders. Yet even if we accept the non-ideal fact that the world is organized into nation-states, and concomitantly, acknowledge that states exercise oversight over their borders and national sovereignty over admissions onto the territory, Carens argues that migration regimes would have to be changed fundamentally in order for liberal democratic states to realize the promise of individual equality and liberty they hold dear.

The methodological distinction between a consideration of migration from an ethical and from a political philosophical has recently come to the fore with the publication of David Miller’s Strangers in our Midst: The Political Philosophy of Immigration (Miller Reference Miller2016a). Miller claims that a political philosophical perspective of migration is different from an ethical one. Whereas the ethical perspective is concerned with assessing what we owe to individuals as equal moral beings, the political philosophical treatment of migration has to consider the role of the state in the lives of its citizens first. Put differently, a political philosophy of migration needs to analyse how individual states ought to weigh the interests of their members in relation to the interests of migrants who hope to join, or those who hope to leave the political community, in the case of emigration. This is a relatively new development in political philosophy, as Miller notes in chapter one of his book. For the longest time, in fact since the early contract theorists, the subject of political philosophy was to analyse the relationship between individual citizens and the state. The traditional questions raised by political philosophy were about legitimacy, the best form of government, rights within the state and the distinction between the public and the private sphere. The challenge for a political philosophy of migration is it to address the question how to treat the interests of individuals who are not part of the political community, or at least not yet. According to Miller, nation-states are justified in prioritizing the claims of citizens against the claims of foreigners who hope to join, since it is the role of the state to be partial to the interests of its citizens. How to defend the state’s partiality towards its own citizens when thinking about migration is the subject of a political philosophy of migration. It is clear, however, that a political philosophical treatment of migration also needs to rely on some ethical foundation. Most minimally, we need a moral starting point. Both Miller and Carens agree that this starting point is the liberal premise of the equal moral standing all human beings share. What is at issue is how this status should be expressed.

Miller has elaborated his ethical stance in earlier work, most notably in (Miller Reference Miller2007) where he describes the different sets of duties that arise for nation states within an unjust world organized into nation states. There he had established a taxonomy of duties in the context of his discussion about the weight we should give to social justice duties compared to that accorded to global justice duties. The only plausible stance to adopt is one of ‘weak cosmopolitanism’ rather than that of ‘strong cosmopolitanism’ (see Miller Reference Miller2007, 46 f and passim). The latter would simply neglect human intuitions about our duties of justice towards those close to us, including our compatriots. Moreover, strong cosmopolitanism would neglect the specific moral value that belonging to a national community entails. Instead, Miller proposed that in the context of weak cosmopolitanism, we are called upon to show equal moral consideration to all individuals across the globe while acknowledging our special, local, obligations that derive from our belonging to a national community. Accordingly, and rather than simply adopting a ‘priority principle’ that gives precedence to global justice duties as strong cosmopolitanism would mandate us to do, or instead of a simple weighing exercise where we assess duties ‘according to whether they are local or global in scope, with local duties given greater weights’ (Miller Reference Miller2007, 45), Miller promotes a weak cosmopolitanism that is based on the protection of human rights as the absolute global minimum. So one set of duties of global justice in this view is defined by what we can call the basic minimum or the protection of basic human rights. Liberal democratic states have at least a remedial responsibility to realize the universal promise of human rights were other actors fail to protect this standard (see also Miller Reference Miller2007, Reference Miller2013). A second set of duties of global justice spells out obligations to other states that ‘can be described broadly as obligations of fairness. States interact with one another in many ways. […] When they interact in these ways, justice requires them to allocate the costs and benefits fairly’ (Miller Reference Miller2016a, 30).

One seeming problem with strong cosmopolitanism in Miller’s view is that it proposes more than what is morally called for. Instead of aiming for equal moral consideration, Miller criticizes that strong moral cosmopolitanism in the hands of Carens and others demands equal moral treatment to acknowledge equal moral standing. Such equal moral treatment has been the main motivation to abolish arbitrary inequalities within liberal democratic societies, such as discrimination based on race, gender, religion and the like. Yet one arbitrary inequality remains steadfast within today’s world, the one that results from citizenship. As Carens has famously written, today’s citizenship regimes endow individuals with unjustified privileges comparable only to feudal privileges for the select few:

In order to overcome this unjustifiable privilege and to realize the promise of moral equality, Carens argues that liberal democratic states, i.e. states that are based on the premise of equal moral standing, and which have implemented policies to reflect their principled conviction that individuals should be treated equally, could only justify a migration regime built on open borders. The first component of Carens’ argument for open borders is thus the proposal that only open borders can express equality. I will discuss the second part of his proposal, the value of freedom of movement, further below, when discussing the human right to migrate.

Without adopting open borders, Carens believes that liberal democratic states lose their legitimacy. The distinction between an ethical and a political philosophical treatment of justice in migration falters at this point, and may be a chimera for Carens. In his view, the argument for open borders is an argument for an ethics of migration that acts upon the promise of moral equality, and an argument for the principled foundation of political legitimacy that liberal democratic states have adopted as their own. Carens suggests that states lose their normative claim to legitimacy if they enforce migration regimes that exclude migrants, and in particular migrants whose countries of origin don’t provide them with comparable advantages to those that citizens of Europe and North America enjoy. Miller instead believes that a state’s legitimacy rests on the well-considered and justifiable promotion of its members’ interests, as long as states also promote and protect access to human rights that assure access to the universal basic minimum. What form the necessary protection takes is what I want to discuss next.

Migration in search of refuge

Looking at migration through Miller’s political philosophical lens implies that states ought to adopt migration regimes that allow for the protection of the basic human rights of those whose states of origins no longer protect them against human rights abuses, or whose states of origins actively violate their human rights. This is the classic case of refugees. Refugees make a very specific claim on other states than their own. Refugees ask for the protection of basic human rights. States that can provide protection are called upon to provide it, an obligation resulting from the principle that all individuals are owed equal moral consideration, that all people have a right to have their basic interests protected. Claims made by refugees go to the heart of their existence.

To illustrate, consider the definition of a refugee as provided in the Geneva Convention, where Article 1A2 defines a refugee as someone who,

Chandran Kukathas argues that questions concerning state obligations towards refugees have not been considered as extensively by political philosophers as by other disciplines. To be sure, much of the literature on migration is situated within the context of broader discussions of global justice and cosmopolitan obligations to alleviate global distributive inequality. According to Kukathas, this theoretical discussion over redistribution has failed refugees: ‘[t]he problem with refugees is that transfers of wealth will not help those whose suffering is rooted in the breakdown of institutions in their homeland’ (Kukathas Reference Kukathas, Fine and Ypi2016, 264). Refugees wouldn’t be adequately helped and attended to even if we realized the most demanding conception of global justice, and especially not if the discussion focuses on redistributive global justice. Similarly, Carens argues that ‘expanding the refugee regime would not do much to solve problems like global poverty, civil war, or ethnic conflict’ (Carens Reference Carens2013, 201). It is therefore a welcome development that philosophers more explicitly attend to what states owe to refugees. Kukathas argues further that many philosophers are uncomfortable with the distinction between refugees and other migrants – those who are often labelled as economic migrants and are therefore deemed to be in less need of asylum and protection. This is certainly true – yet Kukathas’ analysis of the neglect of refugees in political philosophy is not, as even a cursory look at the literature shows. Footnote ³

Kukathas dissects the distinction between refugees and economic migrants to argue that the political ethics of managing the movement of people across state boundaries is neither feasible nor morally defensible. The distinction aims to help adjudicate between those whose fate merits the protection of the international community of states, and those who are not so deserving. Yet, as Kukathas argues, a close analysis of the refugee system as it is currently managed shows instead that refugees are not granted protection. Rather, their accommodation in institutions and camps expresses the suspicion that they are not genuine and hence not deserving of protection. What has emerged over the years is not a refugee-protection scheme, but a system aimed to contain refugees by ‘restricting the opportunities of asylum seekers to gain refugee status and ultimately, admission to the state’ (Kukathas Reference Kukathas, Fine and Ypi2016, 261). This system is by now so well entrenched, and so unquestioningly accepted, that even the UNHCR accepts camps as one of its four solutions to the question of refugees.

Many commentators might follow Kukathas in his claim that the definition of who should count as a refugee as it is proposed by the Convention is arbitrary. Instead, many may agree with a more expansive characterization of who should find protection. Assuming that all commentators agree that the persecution of Jews in the early 1930s in Germany caused grave moral harm, Carens wants to apply the very specific threshold of this historical example, asking, ‘[w]hat would this have meant if we applied it to Jews fleeing Hitler?’ (Carens Reference Carens2013, 194). Like Kukathas, Carens finds the definition in the Convention problematic, both in its requirements and its application by democratic states, since it insists on a refugee having to have been the deliberate target of abuse and persecution: ‘From a moral perspective, what is most important is the severity of the threat of basic human rights and the degree of risk rather than the source or character of the threat’ (Carens Reference Carens2013, 201). Otherwise, so the fear, simply having been Jewish in Nazi Germany or Black in Apartheid South-Africa might not have been sufficient to obtain refuge in a safe country.

Carens’ worry is supported by Kukathas, when the latter decries the fact that ‘[t]he subjective experience of the refugee is played down, discarded, or never inquired into as the emphasis is placed on whether clinical evidence is available to corroborate claims of torture or abuse that led to flight and escape’ (Kukathas Reference Kukathas, Fine and Ypi2016, 262). The suspicion that somebody could falsely claim to be a refugee is such that physical torture is by now the gold standard in asylum claim assessments. Kukathas concludes that the special status and claim for protection that refugees should enjoy has disappeared, ‘eroded in governments’ attempts to institutionalize the distinction between economic migrants and refugees’ (Kukathas Reference Kukathas, Fine and Ypi2016, 261). The result is a lack of access to countries offering opportunities for both refugees and so-called economic migrants.

According to Carens, the suspicion derives from a system that links the place where the claim for asylum is made, and the place where one finds asylum. Based on the generally accepted principle of non-refoulement that mandates states to assess asylum claims in the country of first landing, the link between claim and place provides incentives for refugees to arrive in rich democratic states and lodge their claim there. Carens worries that this may be interpreted to suggest that some refugee claimants are using the system to arrive in such states, tainting them as not being genuine simply because members of rich democratic states may feel overburdened by increased demands. Carens thus shares the concern that refugee systems may breed too many obligations upon asylum-granting states, and that the fear of such obligations may be at the root of a seeming erosion of the principle of non-refoulement. In fact, according to all the authors under review, and especially following Miller and Carens, justice for refugees is necessarily based on what Carens calls the moral logic expressed in the principle of non-refoulement: ‘Whenever a state acknowledges that it would be wrong to send someone back to her home country, it is implicitly recognizing that person as a refugee […], that is, as someone whose situation generates a strong moral claim to admission in a state in which she is not a citizen’ (Carens Reference Carens2013, 206).

Carens suggests that an obvious way to maintain the moral logic of the principle of non-refoulement, on the one hand, and to resolve the problem of fair allocation of moral duties for refugees, on the other hand, would be to sever the link between claim and place: ‘If there were no clear advantage to be gained from […] refugee status beyond the acquisition of a right to live safely in a new country, people would have fewer incentives to make opportunistic use of the system’ (Carens Reference Carens2013, 216). David Owen elaborates on Carens’ idea that, to establish a fair system of allocation of refugees among asylum granting states, the international community may need to develop a refugee allocation system that allows just that (Owen Reference Owen, Fine and Ypi2016). Resettlement should then not only be realized and made possible by the asylum-granting state, but asylum-granting states could satisfy their moral duties arising from non-refoulement in other ways, by providing resources for resettlement in countries, for example.

Assessing refugee settlement from the perspective of democratic self-determination, Christopher Wellman similarly argues that states should be able to satisfy their duties towards refugees by providing the necessities of life outside of their own territory (Wellman Reference Wellman, Fine and Ypi2016). He acknowledges the plight of refugees, namely that they have lost a state’s protection against ‘the standard threats to living a minimally decent human life’ (Wellman Reference Wellman, Fine and Ypi2016, 91). Yet Wellman argues that refugees can’t make a claim to be taken under the protection of a specific state if the members of the state in question decide against granting refuge on their territory and if they can satisfy the duty to provide shelter and basic protection of human rights in other ways. To make his case, he employs the somewhat problematic analogy between belonging to a state and children belonging to a family, Footnote ⁴ and imagines the duties that would arise to him and his wife if his neighbour’s children were to become orphaned after a tragic accident:

Miller similarly suggests that humanitarian duties arising from the moral logic may be acquitted through other means than actually providing shelter in the country of lodging the claim. This is the case even though Miller acknowledges that refugees are a category of people who, while not being citizens, nevertheless have a specific relationship with the asylum-granting state. This relationship is a different one than that between states and other non-citizens in far-flung corners of the world. The thought is that as soon as somebody presents themselves at our borders, she ‘makes herself vulnerable to the state’s power […] By arriving at the border […] the migrant is putting herself at the mercy of the receiving state. What happens to her next will depend very largely on what the state decides to do’ (Miller Reference Miller2016a, 15). I will return to the specific vulnerability that migrants at the border experience further below, in my discussion of the basis of a human right to immigrate.

The strong moral logic of non-refoulement, then, provides a norm for the international state system to acknowledge that states sometimes fail in their responsibilities to protect the interests of their own citizens, either for lack of will or for lack of means. Other states have at least a remedial responsibility, to refer to Miller’s typology of duties, to step in. Non-refoulement thus challenges, as it were, the other established norm of the international system, that of state sovereignty in matters of admission. Owen therefore identifies the principle underlying non-refoulement as the ‘exemption to the norms of sovereign state discretion over admissions into and removals from their territorial jurisdictions’ (Owen Reference Owen, Fine and Ypi2016). Regardless of where refugees find protection and safety, any system of allocating refugees to refuge-providing countries will only be possible if states accept duties of refugee resettlement as a criterion of political legitimacy and good governance.

Owen’s piece is a welcome departure in philosophical writings about refugees, since it brings the question of refugees into the fold of more established discourses of political philosophy. As I mentioned at the outset, discussion of the legitimacy of the state is a classic theme of political philosophy and Owen’s proposal to incorporate the duties of states towards refugees into the definition of political legitimacy of liberal democratic states may be the most promising route towards establishing a fair system of refugee allocation. And indeed, the challenge this supposedly poses to state sovereignty is not that novel. At least one other principle that the international community has accepted, yet which putatively goes against absolutist interpretations of internal state sovereignty, is the Responsibility to Protect (RtoP) as a principle of the international system that sets the threshold for intervention in states where the protection of human rights is no longer assured. The moral principle motivating RtoP has slowly gained ground in international politics after the international community failed to protect vulnerable individuals against grievous harm in, for example, Rwanda and Bosnia in the 1990s. In the wake of RtoP, national sovereignty over territory became conditional on the state’s capacity and willingness to protect the basic interests of its citizens (Straehle Reference Straehle, Lenard and Straehle2012). Similarly, Owen argues that states wanting to invoke the international principle of state sovereignty need to accept that it is based on the Grundnorm of political legitimacy. Yet the definition of political legitimacy can no longer be only circumscribed by the duties of state governments towards their own citizens. A new definition of political legitimacy needs, furthermore, to include responsibilities towards refugees, since helping refugees is a political obligation of liberal democratic states.

Referring to political legitimacy as a normative foundation of the liberal state, and identifying granting refuge as one of the conditions of state legitimacy, is novel and helpful in several ways: most importantly, it allows us to debate duties of the state within established discussions about the normative foundations of the liberal state, rather than having to appeal to principles of global justice that are hotly contested, as we have seen, or without having to refer to highly disputed accounts of human rights of migration and freedom of movement. This last assessment may seem surprising since the claims of individuals to receive refuge are most notably based on the definition of the human right to refuge as stipulated in the UDHR and the Geneva Convention. Prima facie, then, arguing for a right to refuge as a human right seems to be the most promising route to gain political support for providing refuge. Nevertheless, as I have just discussed above, who should count as a refugee entitled to protection is debatable even within the remit of these two documents. As Kukathas illustrates, it is not clear that a person whose livelihood is destroyed through war or drought – a person, in other words, who is lacking effective protection against basic threats (Wellman) or protection of her basic interests (Miller) – is any less in need of protection of her human rights than a person who is persecuted for her religious or political beliefs. However, only the latter will be protected by the human right to refuge as it is officially defined so far, whereas the former will be considered an economic migrant, and thus not benefit. So one question still under discussion is who should benefit from the human right to refuge. A different question concerns the scope and content of human rights in matters of migration and freedom of movement more broadly. This is the question I will turn to now.

The human right to migrate

Many authors have criticized the asymmetry between the human right to exit a given country, including one’s own, which is officially acknowledged and claimed in Article 13 (2) of the UDHR, and the lack of a corresponding human right to enter a country (Cole Reference Cole2012; Oberman Reference Oberman, Fine and Ypi2016). The freedom to exit one’s own country is considered an important tool for political reasons. Anna Stilz believes that ‘allowing free exit […] may have useful effects in incentivizing the protection of rights domestically’ (Stilz Reference Stilz, Fine and Ypi2016, 63). Miller argues that the freedom to exit should be unqualified because it is instrumental in protecting human rights that may come under threat from oppressive governments (Miller Reference Miller2016a, 110). Similarly, Michael Blake argues that the right to exit one’s country is one of the liberty rights meant to protect individuals against the power of the state (Blake in Brock and Blake Reference Brock and Blake2015). Freedom of exit as a liberty right may be the last resort for an individual to protect her liberty, and it is in this sense that liberals hold it dear. In distinction from Miller’s instrumental take on the value of freedom of movement, Blake’s argument is based on the intrinsic value the right to freedom of movement holds for individuals. Any restriction of this cardinal right could only be justified with the protection of liberty itself.Footnote ⁵

For some, the asymmetry between the guaranteed right to exit and the restricted possibility to enter is not only problematic from a systematic perspective. Instead, they fear that the asymmetry puts at peril the underlying right to freedom of movement. Freedom of movement, following Carens and Oberman, becomes meaningless if the right to exit is not paired with a corresponding right to enter. Carens’ second argument for open borders, besides his concern for providing for conditions of equality discussed earlier, is therefore based on concerns for conditions of individual liberty. Migration regimes ought to reflect the fundamental importance that individuals attribute to the possibility of moving and relocating in pursuit of some of their most important and cherished goals. This freedom is generally assured within liberal democratic states, and indeed Article 13 (1) of the UDHR codifies freedom of movement within the boundaries of the state as an important human right. In his by now famous cantilever argument, Carens proposes that states that accept internal freedom of movement thus accept the genuine value of free movement and should therefore also accept to protect external free movement. Normatively, then, liberal democratic states that protect internal freedom of movement should also accept the freedom to move across borders as worthy of protection (Carens Reference Carens2013, 237ff).

Miller provides two objections to Carens’ cantilever argument. The first is based on the incomparably higher costs that assuring the rights of compatriots in destination countries would demand from state governments if an international right to free movement were granted. Whereas governments can easily regulate migration flow within countries to assure the protection of citizen’s rights in all corners of a state’s territory, they could not so easily channel the movement of people into the territory that would ensue if a human right to freedom of movement were to bring human rights protections to immigration. This first objection to Carens’ cantilever strategy to motivate open borders obviously only works if we accept Miller’s premise laid out earlier that the state has an obligation of partiality towards its own members. Only in this vein is it plausible to say that ‘[b]order controls may be the only weapon that a state has to prevent unwanted migration impacting on the rights of its own citizens’ (Miller Reference Miller2016a, 55). Miller’s second objection is based on the protection individual freedom of movement within states provides against abuses of state power (Miller Reference Miller2016a, 56). Miller argues that this rationale doesn’t apply in the international context so that the translation from freedom of movement within the state to freedom of movement across borders does not follow. Yet in light of what we have learned already, I find the second objection against Carens’ cantilever argument puzzling since Millers also claims that freedom of exit is instrumentally important to protect other human rights from potential oppressive governments (Miller Reference Miller2016a, 110). In this later claim, Miller doesn’t seem to make the distinction between the value of internal and external freedom of movement, which would be necessary to make his challenge to Carens stick. Put differently, I would argue that oppressive governments are not only checked by internal free movement, but also by external freedom of movement. The same argument that helps support internal freedom of movement as instrumentally valuable to protect human rights should then also support external freedom of movement.

Freedom of movement as a liberty right is often cast as an important instrument for individuals to be and to do what they cherish. This is the normative basis for Kieran Oberman’s defence of a human right to immigrate (Oberman Reference Oberman, Fine and Ypi2016).Footnote ⁶ Oberman accepts Miller’s interpretation of human rights as protections of basic human interests, before going on to stipulate that one such basic interest is ‘being able to make important personal decisions and engage in politics without state restrictions on the personal and political options available’ (Oberman Reference Oberman, Fine and Ypi2016, 32). To have a personal interest is then further qualified as ‘being free to access the full range of exciting life options when [making] important personal decisions’, with life options being those that provide ‘meaning and purpose’ (Oberman Reference Oberman, Fine and Ypi2016, 35).Footnote ⁷ Oberman thus adopts a definition of personal interests that is wedded to a well-accepted definition of the basis of individual autonomy elaborated by Joseph Raz (Reference Raz1986). The main lesson that Oberman draws here is that the basic interest to lead autonomous lives not only requires a set of adequate options from which individuals may choose, and the possibility to implement their choices, but that it also requires to be free from coercion: ‘we have an essential interest in not having others, and in particular states, determine our options when we make basic personal decisions’ (Oberman Reference Oberman, Fine and Ypi2016, 43). This last part is important since it answers one of Miller’s objections to a human right to immigrate – namely that basic interests such as entering loving relationships, finding rewarding work, or cultivating personal interests could be satisfied if individuals were provided with a range of sufficient and generic option. In Oberman’s view, the underlying interests justify claims to specific options. Restrictions hampering migration and the possible access to such options represent coercion. Yet ‘coercion infringes independence and thus autonomy, even if it leaves those subjected to it with an “adequate” range of options’ (Oberman Reference Oberman, Fine and Ypi2016, 43).

Oberman thus argues that a human right to immigrate may help realize an individual’s special interest and prevent exposure to undue coercion. A second justificatory requirement for human rights as proposed by Miller is their feasibility, which Miller himself doesn’t consider problematic for the human right to migrate (Miller Reference Miller, Fine and Ypi2016b 18). His third requirement is compatibility of one human right with other rights. As we have seen, Miller resists Carens’ cantilever strategy to expand freedom of movement from within states to movement across borders, based on the undue costs that granting an international right to freedom of movement would impose on the rights of members in destination countries. The compatibility requirement is thus in line with Miller’s general concern to balance rights. Oberman accepts this early on, when he writes that a moral human right to immigrate is a ‘non-absolute right’, akin to ‘other human rights. Sometimes, for the sake of competing moral values, a human right can justifiably be curtailed’ (Oberman Reference Oberman, Fine and Ypi2016, 34). One such competing moral value may be the realization of social justice goals. In this vein, human rights like the right to emigrate and immigrate may have to be curtailed if attempts to safeguard other human rights warrant it. I will return to this issue later on, in my discussion of brain drain.

Oberman’s analysis is most convincing in his discussion of the coercion proviso. Coercion is indeed what happens at borders that are manned by people with guns, preventing hopeful migrants from entering. I find the link between autonomy requiring access to specific options, and a human right to immigrate as providing such access less convincing. If Oberman intends to say that a human right to immigrate should be conceived as a negative liberty right that simply obligates states to open their borders and not stand in the way of individuals migrating in search of access to specific options, then we can conceive of it as a liberty right akin to freedom to exit discussed earlier. It would be safe to say, though, that this would be a very minimal interpretation of the human right to immigrate since it would only remove the barriers of migration regimes. It wouldn’t, in other words, ensure that the claims made under the protection of the human right were to be realized. If, however, we were to put the emphasis in Raz’ conception of autonomy on the provision of an adequate range of options that individuals need to be able to access in order to make choices that are meaningful to them, then I believe that the liberty right interpretation of the human right to immigrate falls short of helping realize the goal of individual autonomy. The simple fact of being able to immigrate into a country does nothing to assure that individuals have access to the options necessary ‘to make important personal decisions’.

To illustrate this, think of the analogy here of the human right to refuge. Again, very minimally, and in order to actually provide the kind of protection that we associate with refuge, the content of the right includes the right to leave the country where one is persecuted, the right to knock at another country’s door to gain entry, the right to have the government of that country fairly assess one’s asylum claim, and the right to shelter and protection within the asylum-granting state. At least the last component of the right to refuge cannot be satisfied by a negative interpretation of the obligations of the state, but necessarily relies on a positive interpretation of the claims that come with the human right in question. Similarly, the human right to immigrate, as Oberman justifies it as a right to help promote individual autonomy, would necessarily need to include a positive content if it is to serve the intended role in his analysis.

It is furthermore worth noting that Oberman’s defence of the human right to immigrate neglects the specific relationship between hopeful migrants and the admitting state. The reason we need a political philosophy of migration is precisely because the government of destination states are in a different relationship to hopeful migrants at their borders than they are to people in other parts of the globe, or to their own members. As quoted earlier, Miller holds that this relationship is characterized by the vulnerability the migrant arriving at the border experiences, subjected as she is to the migration regime of the admitting state (Miller Reference Miller2016a, 15). Miller makes the distinction between refugees and migrants, with refugees making the specific claim for protection, whereas migrants demand simply to be admitted. However, I want to suggest that the relationship for all those asking for admission with admitting states is a comparable one. It is characterized, as Miller correctly highlights, by the fact that the admitting state’s decision may alleviate or exacerbate a hopeful migrant’s vulnerability: all people at the border are vulnerable because the state may prevent them from realizing their migratory project, from entering a safe state, or a country full of opportunities. As I said earlier, this is not to deny the fundamentally different reasons migrants and refugees have for leaving their countries of origin. Refugees are vulnerable to the acts of their state of origin if it violates their human rights, and they are vulnerable to come to grievous harm if asylum-granting states refuse them their demand for asylum. All I want to suggest here is that taking a definition of vulnerability as being unable to protect our interests from harm, both migrants and refugees are vulnerable to the border policies of admitting states. Refugees are vulnerable since border policies may make them unable to protect their interests in finding new safe heaven and having their human rights protected. Migrants, on the other hand, are vulnerable to not being able to realize their migratory project. To say this is not to neglect morally relevant differences: the urgency of other migrants to have their interest in entering into another state is of course very different, in some cases there may indeed not be any urgency at all, while the vulnerability of refugees calls for urgent action on the part of admitting states. Concerning the urgency of addressing their request for entry, refugees and migrants are indeed not comparable and alleviating the vulnerability of refugees should take precedence over alleviating the vulnerability of other migrants to the policies of admitting states.

In my view, then, a migrant’s autonomy, to follow Oberman’s terminology, is thwarted by migration regimes that prevent her from implementing the choices she has made. She is not able to move into her desired host country, settle down there and access the options it provides. The specific relationship between the migrant and the state implementing such a migration regime is defined by the ensuing vulnerability. Only because she presents herself at our border is she in the situation of becoming vulnerable in this way. It is the migration regime in place that makes her vulnerable.

What does this tell us about the obligation of the state? When doing political philosophy, we are concerned with the vulnerability that the state can address. And we need to acknowledge that, sometimes, vulnerabilities are created by state policy – such as migration regimes. A first lesson of a vulnerable subject analysis of migration regimes, then, is it to say that liberal democratic states pursuing justice in migration have a responsibility to take into account the kind of vulnerability that is created by their policies (Straehle Reference Straehle2016). The specific relationship between migrant and state is not fully captured by Oberman’s proposal for a human right to immigrate that would apply to all individuals, regardless of their relationship to the admission state. It would neglect the specific responsibility states have towards those subjected to their policy.

Migration and brain drain

Liberty rights that help promote the capacity for autonomy are also at stake in a fourth and last book dealing with justice in migration, and which raises the issue of ‘brain drain’. The particular right in question is that of exiting one’s country of origin after having acquired important and highly sought skills. As I discussed earlier, the right to exit is supported as a right providing protection against abusive state governments. It is also the topic of Gillian Brock and Michael Blake’s book Debating Emigration – May Governments Restrict Emigration? (Brock and Blake Reference Brock and Blake2015). The book is set up as a debate: while Brock believes that countries facing challenges to the institutions of social justice may be justified to impose temporary exit conditions, Blake expands on his argument cited earlier that the right to freedom of movement as a liberty right should receive as extensive protection as possible. I will focus on the part of Brock’s discussion here that centres around the effects of emigration of high-skilled medical practitioners on countries that have invested in education sectors to be able to educate more medical professionals.Footnote ⁸ They do so in the hope of improving access to medical services for their citizens. And, indeed, a simple look at the figures for a medical education illustrates the kind of loss in investment many developing countries suffer. In Kenya, for example, the estimated cost to educate a doctor from primary school to university graduation amounts to US$ 65, 997 while educating a nurse costs US$ 43, 180. It is fair to say, then, that the current situation of health-care migration is a de facto subsidy that developing countries provide to their developed counterparts, by training what are to the latter inexpensive health care workers at a high cost to the former. Footnote ⁹

According to Brock, conditions for exit today take different forms. Liberals may worry about some of those she identifies as current practices, such as a requirement for service in order to be admitted to post-graduate training, the practice of making licensing of nurses and doctors dependent on a set period of service in the educating country, the practice of delaying awarding the degree until mandatory service is carried out, or that of requiring service in underserved areas. Finally, some countries build service into the curriculum for degree completion. Brock argues that all of these state policies are based on the assumption, correct in her view, that individuals are under obligations to contribute to and promote the institutions of justice in their society. Similarly, Anna Stilz proposes that the rights-granting state has a claim on individuals’ allegiance. A claim to exit rights ‘can be fairly regulated within a legitimate scheme of law – not as an “absolute” or “natural” right against the state’ (Stilz Reference Stilz, Fine and Ypi2016, 58). The problem arising from brain drain, according to both Brock and Stilz, derives from its effects on the conditions of social justice in the country of origin: ‘individuals divest themselves of any distributive obligations to former compatriots. […] But why should emigrants be able to renounce their civic obligations in this way?’ (Stilz Reference Stilz, Fine and Ypi2016, 68)

In order to protect the institutions of social justice, Brock proposes that the rights of some to exit their countries of origin should be tied to duties of justice that need to be satisfied before benefitting from a right to exit. Societies would then be justified in restricting individuals in their exercise of freedom of movement if its unfettered exercise risks jeopardizing the basis of social justice. And we may convince ourselves that particularly in the special case of access to health care, states may be justified in restricting liberty rights of their members in order to assure minimum access to health care. The important liberty right that freedom of exit constitutes should thus not be curtailed entirely, but ‘citizens have no fundamental right to unqualified exit, their only claim is that the forms of departure be regulated to preserve a fair distribution’ of civic obligations (Stilz Reference Stilz, Fine and Ypi2016, 72).

Blake accepts that high-skilled emigration may jeopardize some of the institutions of social justice. He also accepts Brock’s claim that health care institutions will not be the only institutions likely to be affected – the effect on society and the state’s finances may be such that other vital institutions like education, policing, etc., may suffer as well. Yet he worries that the ‘fair distribution’ of burdens and benefits arising from civic obligation invoked by Stilz may be hard to realize. Moreover, while we can accept that members have obligations to support institutions of social justice of the country they live in, Blake notes that it is not clear that they have such obligations to their countries of origins. As he argues in his response to Brock, it is not clear that she can justify the priority of compatriots over other global citizens within a liberal framework. A similar challenge could be levelled at Stilz, yet both Stilz and Miller support the state’s partiality towards its members. Thus, endorsing some conditions on exit in order to protect the grounds of social justice is a plausible view for them to espouse. This is in contrast to Brock. In my view, the problem for Brock arises since she proposes a cosmopolitan motivation for her defence of exit restrictions: accordingly, it is unfair that some states are able to implement policies of social justice, while others are not, due to the exodus of their high-skilled members. The cosmopolitan premise jars with the priority given to compatriots.

In response to my criticism, Brock could argue that in the non-ideal world, in which we live, access to health care in some countries is no longer a question of justifiable policy, but instead a matter of emergency. Here Blake’s discussion is particularly interesting. As I illustrated earlier, liberal democracies may be justified in employing emergency restrictions on individual liberty rights in order to protect the conditions of individual liberty within the realm of the state. Similarly, Blake concedes that to address the emergency that many health-care deprived countries face, states may be tempted to restrict the liberty right of freedom of exit of locally trained medical professionals, and to impose the kinds of conditions on exit that Brock discusses. Yet four facts need to hold true for any emergency suspension of liberty rights to be justifiable: grave emergency; correspondence between the rights violation and a significantly better world as a result; no alternative ways of addressing the non-ideal conditions; and the possibility of compensation for the rights violation later on (Blake in Brock and Blake Reference Brock and Blake2015, 211f). Blake is sceptical that any of the last three can be met in today’s world.

I believe it fair to say that the current state of affairs is unjust from all perspectives, be it that of an ethics of migration, of a political philosophy of migration, a strong or a weak cosmopolitan view. What I find less convincing is the strategy of making exit conditional to promote the institutions of social justice in the country of origin. Even in a weak cosmopolitan interpretation of global justice duties, though, costs and burdens need to be distributed fairly in international dealings (Miller Reference Miller2016a, 30). A more fruitful way of assessing the demands of social justice, on the one hand, and the demands of the strong liberty right of freedom of movement, on the other hand, may therefore be to assess emigration restrictions from the perspective of vulnerability. Following Brock and Stilz, we can imagine identifying several such vulnerabilities, such as lack of medical provision for individuals, and unstable institutions. In a second step, we need to assess if the proposed conditions on exit effectively address the vulnerabilities in the country of origin. Put otherwise, the basic liberty conception of the right to exit needs not only to be assessed in light of the countervailing reasons of brain drain, as Stilz writes. The restriction of the liberty right to exit also needs to be assessed in light of the countervailing reason of effectiveness of the restriction, as Blake and Oberman have argued (Oberman Reference Oberman2013; Brock and Blake Reference Brock and Blake2015). I suggest that temporary conditions on the right to exit are only of limited use in addressing the danger of unstable institutions of medical provision. They are not, then, as obviously plausible and defensible as Brock suggests they might be.

I also want to suggest that a vulnerability based analysis can help clarify the issue here. High-skilled emigration provokes a specific kind of vulnerability, which takes the form of lack of access to health care and related elements of individual well-being for those remaining in the country of origin. Mandating graduating medical practitioners to serve a minimum time in the country of origin will provide basic access to such means (Straehle Reference Straehle, Lenard and Straehle2012), but it won’t place the responsibility for the vulnerability created where it should be placed, namely on the recruiting states and their policy of relying on developing countries to furnish them with highly qualified yet, to them, inexpensive doctors. If states accept causal responsibility for the kinds of vulnerability their policies inflict on others, as I postulated above, and if it were possible to identify the specific vulnerability that high-skilled recruitment and emigration in its wake generate, then a vulnerability-based assessment of emigration may yield specific responsibilities on the part of those countries that rely heavily on high-skilled recruitment to fill the ranks of their own high-skilled professions, such as doctors and nurses.

Funding

Part of this work was supported by Social Sciences and Humanities Research Council of Canada [grant number 430-2012-0595].

Notes on contributor

Christine Straehle is Professor for Political Philosophy and Public Affairs at the Faculty of Philosophy at the University of Groningen. Her research focuses on questions of global justice, in particular migration justice, and the moral and political relevance of individual vulnerability.