The immigration debate in political theory has produced a series of accounts that justify the state’s right to exclude potential immigrants, where the right of self-determination figures prominently. We challenge two prominent accounts of the self-determination-based right to exclude and defend a circumscribed right to exclude and a corollary duty to admit immigrants, based on our ‘people relationship goods’ account of self-determination. Our conception reconciles the moral claims of global opportunity migrants with the (...) well-being and non-alienation interests of the locals. It therefore provides a principled answer to the philosophical question underlying pressing political conflicts today, namely what is the permissible scope of exclusion by self-determining political communities, in light of weighty global moral demands of inclusion. (shrink)

A recent challenge to statist arguments defending the right of states to exclude prospective immigrants maintains that such statist arguments prove too much. Specifically, the challenge argues that statist arguments, insofar as they are correct, entail that states may permissibily exclude current members' newcomers by birth, which seems to violate a widely held intuition that members' newcomers by birth ought automatically to be granted membership rights. The basic claim is that statist arguments cannot account for the differntial (...) treatment between prospective immigrants and newcomers by birth. Call this the newcomer-by-birth objection. This article rejects the newcomer-by-birth rejection. It begins by sketching the precise extent to which the objection applies to statist arguments. It then examines the case of newcomers by birth and argues for a principled basis for treating them differentially from prospective immigrants such that a right to exclude prospective immigrants need not entail a right to exclude newcomers by birth. But this distinction holds only in most cases, not all, and therefore the newcomer-by-birth objection is not entirely defeated. With respect to the cases in which the objection does hold, it is argued that such cases are morally akin to international adoption, and thus morally benign. All considered, statist arguments easily survive the newcomer-by-birth objection. (shrink)

States claim the right to choose who can come to their country. They put up barriers and expose migrants to deadly journeys. Those who survive are labelled ‘illegal’ and find themselves vulnerable and unrepresented. The international state system advantages the lucky few born in rich countries and locks others into poor and often repressive ones. In this book, Christopher Bertram skilfully weaves a lucid exposition of the debates in political philosophy with original insights to argue that migration controls must (...) be justifiable to everyone, including would-be and actual immigrants. Until justice prevails, states have no credible right to exclude and no-one is obliged to obey their immigration rules. Bertram’s analysis powerfully cuts through the fog of political rhetoric that obscures this controversial topic. It will be essential reading for anyone interested in the politics and ethics of migration. (shrink)

It is normally taken for granted that states have a right to control immigration into their territory. When immigration is raised as a normative issue two questions become salient, one about what the right to exclude is, and one about whether and how it might be justified. This paper considers the first question. The paper starts by noting that standard debates about immigration have not addressed what the right to exclude is. Standard debates about immigration (...) furthermore tend to result either in fairly strong cases for open borders or in denials that considerations of justice apply to immigration at all, which results in state discretion positions. This state of debate is both theoretically unsatisfactory and normatively implausible. The paper therefore explores an alternative approach to the right to exclude immigrants from the perspective of recent debates about the territorial rights of states. The right to exclude claimed by states is analysed and it is shown to differ both conceptually and normatively from rights to impose political authority within a territory. The paper finally indicates how this analysis might broaden the focus of debates about immigration and suggest alternative regimes of migration regulation the possibility of which is obscured by traditional justice approaches. (shrink)

Most challenges to immigration restrictions have not shown that states lack a claim-right to exclude, or a moral right against outside interference to make membership decisions. And an important, unexamined aspect of the claim-right is that states have the right against interference to wrongfully exclude, or the right to do wrong when making admission decisions. A major implication of this right is that even political or economic measures to affect states’ immigration policies (...) are off the table – significantly compromising the prospect of meaningfully addressing the world’s growing refugee crisis. In the form of a reductio argument, I provide reason to reject this position. Specifically, I try to demonstrate that, in the relevant cases, a plausible moral defense for the right to wrongfully exclude can only be given for states with objectionable character – protecting the very states whose immigration policies we should be most concerned with, which is surely morally counterintuitive. (shrink)

This article offers a critical analysis of Blake’s ‘jurisdictional theory’ of the border control and, especially, its state-based methodology. It then draws on this analysis to discuss the merits of analysing global migration through the lens of ‘the right to exclude’. Blake’s theory demands serious attention in light of its promise to combine a normative account of exclusion with an uncontroversial descriptive account of the state. Despite its initial appeal, however, the theory is shown to face serious problems. (...) First, its central normative principle turns out to be able to yield an account of justified exclusion only at the cost of departing from the theory’s purported emphasis on the state. Second, and more importantly, its state-based methodology is shown to be unable to generate a convincing account of the legitimacy of border control, as opposed to the justice of exclusion. It is argued that this point is relevant for the analytical debate on immigration and borders more generally, in light of institutional phenomena that characterise the contemporary practice of border control. In this context, an excessive focus on the right to exclude can work to mask significant exercises of state power. (shrink)

This essay contends that postcolonial migrants have a right to enter their former colonizing nations, and that these should accept them. Our novel argument challenges well-established justifications for restrictions in immigration-policies advanced in liberal nationalism, which links immigration controls to the nation’s self-determination and the legitimate preservation of national identity. To do so, we draw on postcolonial analyses of colonialism, in particular on Edward Said’s notion of “intertwined histories,” and we offer a more sophisticated account of national identity than (...) that of liberal nationalists. In our view, the national identity of former colonizing nations cannot be understood in isolation from their ex-colonies. This entails that liberal nationalists cannot justify the restriction on the entrance of members of the nation’s former colonies by resorting to an argument about the preservation of national identity: the former colonized constitute an inseparable element of that national identity, because they are already historically part of it. (shrink)

Most philosophical defences of the state’s right to exclude immigrants derive their strength from the normative importance of self-determination. If nation-states are taken to be the political institutions of a people, then the state’s right to exclude is the people’s right to exclude – and a denial of this right constitutes an abridgement of self-determination. In this paper, I argue that this view of self-determination does not cohere with a group-agency view of nation-states. (...) On the group-agency view that I defend, a nation-state is the kind of group-agent that does not supervene on the intentionality of member/citizens. If we think that a nation-state is an intentional group-agent in its own right, then we should think that self-determination resides with the institutions of the state rather than with the citizens. If nation-states do not supervene on the intentionality of citizens, then it is unclear why citizens might have the right to control membership in the state as a feature of self-determination. (shrink)

The central question of the paper is: do women have the right to exclude transwomen from women-only spaces? First I argue that biological sex matters politically, and should be protected legally—at least until such a time as there is no longer sex discrimination. Then I turn to the rationales for women-only spaces, arguing that there are eight independent rationales that together overdetermine the moral justification for maintaining particular spaces as women-only. I address a package of spaces, including prisons, (...) changing rooms, fitting rooms, bathrooms, shelters, rape and domestic violence refuges, gyms, spas, sports, schools, accommodations, shortlists, prizes, quotas, political groups, clubs, events, festivals, and terms. The arguments of these two sections taken together make a strong case against self-identification as the basis for legal sex (because legal sex will generally determine inclusion). In the last part of the paper, I address the objection that my conclusion was obtained through linguistic sleight of hand, which I answer by saying that choices about how to refer to transwomen don’t change the underlying fact that the basis for exclusion is generally sex, not gender identity. (shrink)

Do states have the right to prevent potential immigrants from crossing their borders, or should people have the freedom to migrate and settle wherever they wish? Christopher Heath Wellman and Phillip Cole develop and defend opposing answers to this timely and important question.

Do territorial rights include the right to exclude? This claim is often assumed to be true in territorial rights theory. And if this claim is justified, a state may have a prima facie right to unil...

State borders allocate access to basic goods, opportunities, rights, and protections along lines of nationality, race, and gender. However, the discriminatory effects of state borders rarely appear as an issue in the self-understanding of liberal-democratic societies and their political theorizing. In this paper, I explore how the category of nationality has been and continues to be used to exclude people who have been negatively racialized by European colonialism. I draw on a number of studies that reconstruct the colonial history (...) of states' claims to authority over people's movements and over the composition of their populations. The idea of territorial nationalities allowed nation-states, in particular those emerging from the settler colonies and metropoles of European empires, to continue practices of racial ordering without using explicit racial categories. With the help of these studies, I criticize liberal nationalists such as David Miller for appealing to the value of national identities to support a right of states to exclude would-be immigrants. I suggest that using genealogical and phenomenological methods allows us to undermine the default authority that is often accorded to the category of nationality. (shrink)

This work explores the increasing militarization of borders throughout the world, particularly the United States border with Mexico. Rather than further rhetoric of "border security," this work views increases in guards, technology and the building of walls as militarized action. The goal of this essay is to place the onus upon states to justify their actions at borders in ways that do not appeal to tropes of terrorism. This work then explores how a logic of security infiltrates philosophical discussions of (...) "the right to exclude," thereby curtailing the ability to see borders in any other way than as a locale that must be militarized. Specifically, I analyze the work of Michael Blake and his juridical theory of immigration restrictions. I argue that his work necessitates the walling of borders and removal of those who create new obligations for current members of existing political institutions. (shrink)

Many of us take it for granted that states have a right to control the entry and settlement of non‐citizens in their territories, and hardly pause to consider or evaluate the moral justifications for immigration controls. For a long time, very few political philosophers showed a great deal of interest in the subject. However, it is now attracting much more attention in the discipline. This article aims to show that we most certainly should not take it for granted that (...) states enjoy a moral right to exclude would‐be immigrants. It is neither obvious nor uncontroversial. And if we cannot find adequate justifications for the existence of such a right, then we need to re‐evaluate the very backbone of current approaches to immigration policy. The paper begins with an overview of the existing academic debate about the extent of the right to freedom of movement. Next it introduces three arguments in support of the state’s right to exclude would‐be immigrants which draw on claims about the collective right to self‐determination. Finally it outlines three important challenges faced by these arguments in support of the state’s right to exclude. (shrink)

In this article, I show how the principle of democratic self-determination can answer the boundary problem by both grounding and constraining a people’s right to exclude potential immigrants. I argue that a people has the qualified right to exclude insofar as it respects the self-determination claims of outsiders. I analyze the concrete implications of the requirement to respect the self-determination claims of outsiders in the cases of long-term residents, refugees, and brain drain. Sometimes the only way (...) for a people to respect the self-determination claims of outsiders will be by including, rather than excluding, them as members. (shrink)

Recent philosophical work on settler colonialism has attempted to account for the distinctive wrong in these practices in terms of the violation of exclusionary territorial rights held by inhabitants of colonised areas. If it turns out that such rights are needed to account for this distinctive wrong, that appears to be a significant cost for views sceptical of territorial rights. This paper sets out to explore the possibility of accounting for this wrong without invoking exclusionary territorial rights and puts forward (...) an account of sociocultural stability rights that allow us to do so (thereby indirectly supporting sceptical views of territorial rights). (shrink)

This paper makes the case for amnesty of irregular migrants by reflecting on the conditions under which a wrong that is done in the past can be considered superseded. It explores the relation between historical injustice and irregular migration and suggests that we should hold states to the same stringent standards of compliance with just norms that they apply to the assessment of the moral conduct of individual migrants. It concludes that those standards ought to orient migrants and citizens’ moral (...) assessment of how their states handle questions of irregular migration and to inform political initiatives compatible with these moral assessments. (shrink)

Why should we have a system of different states that each claim both internal and external sovereignty? How can the state gain its legitimate authority to rule? What is the problem with the ideal of the ‘global citizen’? How should states respond to different groups’ secession claims? To what extent should states have the right to control their borders? If one finds such questions intriguing, one should read Anna Stilz’s book Territorial Sovereignty: A Philosophical Exploration. Stilz argues that a (...) system of territorial states serves to protect important values – occupancy, basic justice and collective self-determination – which are key to living an autonomous life. I focus on the theory’s implication for the debates on border control. I contend that Stilz’s arguments still have difficulties grounding the state’s right to exclude would-be immigrants. That said, the book has done a great job in providing a liberal theoretical framework for us to reflect upon citizenship, immigration, succession claims, cosmopolitan ideals, the colonial legacy and disputes over borders and resources. (shrink)

¿Deben tener derecho los estados democráticos liberales a excluir a los inmigrantes de su territorio? Este artículo cuestiona dos argumentos centrales a favor del control de las fronteras: (1) el derecho exclusivo del estado al asentamiento en un determinado territorio; y (2) el derecho exclusivo de los ciudadanos y residentes legales a la pertenencia a dicho estado. El artículo muestra que los estados contemporáneos no mantienen una vinculación inexorable a un trozo particular de tierra que les permita justificar el derecho (...) exclusivo de asentamiento y que los habitantes no pueden defender coherentemente su restricción unilateral al acceso a la pertenencia. Para terminar, el artículo desarrolla una visión alternativa de los derechos territoriales estatales. (shrink)

There is a pre-print of this chapter available here, just search the title.

This article continues the rejection of certain myths about the right to life at the end of life commenced in an article in the previous issue of the journal Clinical Ethics. It focuses upon ethical arguments that seek to exclude two categories of human beings from the usual protection of human life: those described as ‘non-persons’ and those ‘designated for death’. The article argues that, while the protection offered to life by means of the right to life (...) is far from absolute, the right remains applicable to all human beings, irrespective of their life expectancy or mental capacity. (shrink)

Although the right to health is universal, many nations that honor it fail to do so in the case of non-citizen immigrants. In this essay, we argue that the reasons typically given for not extending the right to health to immigrants are without merit and that there are good reasons for nations to protect, respect and fulfill the health right of all immigrants. Contrary to the standard view, we argue that health can be understood as a global (...) public good. Two important points follow: because health is non-excludable and non-rivalrous, it is in the health interests of nations to respect, protect and fulfill immigrants’ right to health. Furthermore, meeting the health needs of immigrants is an important way for receiving nations to meet the duties that may be generated by the benefits they incur as a result of health’s global public good dimension, thus ensuring that receiving nations are not free riders. We then argue that because citizens and immigrants dwell together, nations have duties of solidarity to immigrants with respect to health. Using the insights of social psychology, we show that solidarity among diverse people is both a reasonable expectation and a morally desirable one. (shrink)

Philosophers have recently expressed interest in the question as to whether there is a right to sex, a right whose justification is motivated by the existence of sexually excluded people—people who suffer from involuntary long-term sexual deprivation (owing, say, to a chronic medical condition). This paper, after offering preliminary remarks about what a right to sex and its objects might be and who might have this right, surveys seven justifications for the right: linkage arguments, need, (...) well-being, a minimally decent life, sexual activity being a basic good, injustice, and relationships. The paper argues that a right to sex does not likely exist because none of the justifications is convincing. The paper then argues that despite the lack of justification, and because sexual exclusion is a problem worthy of attention, people’s sexual needs can be addressed through the lens of goals instead of rights. This not only takes sexual exclusion seriously enough, it also avoids the crucial problems associated with rights-talk, especially that of sexual coercion. (shrink)

Labor rights are the first to come up for criticism when accounts of human rights are offered in response to philosophical questions about them, and notoriously so Article 24, which talks about `rest and leisure' and `period holidays with pay.' This study first tries to make it plausible why labor rights would appear on the Universal Declaration, and next articulates some philosophical objections to their presence there. The interesting question then is not so much how one could respond to the (...) objections, but to explore what commitments one needs to make to answer our question in a satisfactory manner. To make progress, we can contrast the idea of human rights with conceptions of them. Such conceptions offer answers to a set of philosophical questions about human rights. It would be rather unlikely for any such conception to emerge as the uniquely best philosophical account of human rights since disagreements among different conceptions are complex. What is sensible to ask then is what a conception of human rights would have to be like to count labor rights as human rights, and whether there is a conception of that sort. I offer one conception that I take to be plausible overall, and that does count labor rights as human rights. Or, that is: it does count a right to work as a human right, alas not in the strong interpretation according to which states must create jobs but in the weaker sense that states need to make sure people are not systematically excluded from employment, and are treated in certain ways at their place of work, and it does count a right to leisure as a human right, alas not a right to paid vacations. (shrink)

A defining feature of democracy is the inclusion of members of the political association. However, the corresponding right to exclusion has attracted undeservedly scant attention in recent debates. In this paper, the nature of the right to exclusion is explored. On the assumption that inclusion requires the allocation of legal power-rights to the people entitled to participate in the making of collective decisions, two conceptions of the right to exclusion are identified: the liberty-right to exclude (...) and the claim-right to exclude. The choice between them depends on the nature of the interests that justifies the power-rights of people included. The position is defended that if rights to democratic participation are power-rights, we must also accept that the people included have claim-rights to the exclusion of non-members. (shrink)

The author argues that the minority homosexual section of our population--a larger minority than, for example, the ethnic minorities section--is more often than not excluded by the 'helping professions' from the right to be parents. The author appeals to the lack of scientific data supporting such exclusion and asks that homosexual parents and their children receive the same care from our institutions as other parents and children. Some instances of lack of care are cited. The paper was presented to (...) the 1983 annual conference of the London Medical Group, 'Human Rights in Medicine'. (shrink)

Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there is (...) a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners’ right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners’ association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts. (shrink)

Many liberal democracies have legal restrictions on nudism. This article argues that when public nudity does not pose a health threat, such restrictions are unjust. To vindicate this claim, I start by showing that there are two weighty interests served by the freedom to be naked in public. First, it promotes individual well-being; not only can nudist activities have great recreational value, recent studies have found that exposure to non-idealised naked bodies has a positive impact on body image, and, ultimately, (...) on life satisfaction. Second, public nudity has expressive value; apart from being a constitutive element of various spiritual and religious worldviews, public nudity is frequently used to protest social and political evils. As I go on to argue, the reasons for abolishing current anti-nudist laws that stem from these interests are not overridden, let alone cancelled, by the offence that public nudity might cause. Indeed, whereas my principal aim is to defend the freedom to be publicly naked when this poses no health threat, I will contend that states should recognise this liberty as a distinct legal right rather than try to subsume it under existing rights or secure it simply by excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and disorderly conduct. (shrink)

This paper argues that the four most plausible arguments compatible with public reason for an outright legal ban on all forms of polygamy are unvictorious. I consider the types of arguments political liberals would have to insist on, and precisely how strongly, in order for a general prohibition against polygamy to be justified, while also considering what general attitude towards "marriage" and legal recognition of the right to marry are most consistent with political liberalism. I argue that a liberal (...) state should get out of the "marriage business" by leveling down to a universal status of "civil union" neutral as to the gender and affective purpose of domestic partnerships. I then refute what I regard as the four most plausible rational objections to offering this civil union status to multi-member domestic partnerships. The most common objection to polygamy is on grounds of gender equality, more specifically, female equality. But advancing this argument forcefully often involves neglecting the tendency of political liberalism (by whatever name it goes in contemporary, complex, multicultural societies) to tolerate a certain amount of inequality in private, within the bounds of robust and meaningful freedoms of choice and exit. Properly understood, polygamy involves no inherent statement about the essential inferiority of women, and certainly not more than many other existing practices and institutions (including many expressions of the main monotheistic religions) which political liberals regard as tolerable, even reasonable. Arguments from the welfare of children, fairness in the spousal market, and the abuse of family subsidies are also considered and found insufficient for excluding polygamy. (shrink)

Ecosystem services are the benefits people obtain from ecosystems. Many of these services are provided outside the borders of the land where they are produced. This article investigates who is entitled to these non-excludable ecosystem services from a libertarian perspective. Taking a right-libertarian perspective, it is concluded that the beneficiaries generally hold the right to use non-excludable ecosystem services and the right to landowners not converting ecosystems. Landowners are only at liberty to convert ecosystems if they appropriated (...) their land before any beneficiary used the services and converted the ecosystems before or shortly after the beneficiaries started using the services. This means that the beneficiaries generally hold the right to compensation payments by the landowners in the event of service losses, instead of the landowners holding the right to payments for ecosystem services by the beneficiaries. Taking a left-libertarian perspective, it is concluded that landowners ought to pay for the non-excludable ecosystem services lost as a result of their activities as well as beneficiaries paying for the non-excludable ecosystem services they use. These payments are not made mutually, however, but to a central authority that distributes the returns to the community on an equal per capita basis. (shrink)

U.S. citizens have a right to exclude potential immigrants. This right rests in part on the threat immigration poses to change the character of the institutions to which the current citizens have consented and in part on the threat immigrants pose to the citizens' rights to collective property. This right is probably not opposed by a human right to immigrate since such a right cannot be supported by arguments from equality, fairness, legitimate state authority, (...) or libertarianism. (shrink)