Territorial Rights, Political Association, and Immigration

In: Journal of Moral Philosophy
Author: Sune Lægaard1
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  • 1 Roskilde University Universitetsvej 1, Denmark

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Liberals conceive of territorial rights as dependent on the legitimacy of the state, which is in turn understood in terms of the state’s protection of individual rights and freedoms. Such justifications of territorial rights have difficulties in addressing the right to control immigration, which is therefore in need of additional justification. The paper considers Christopher Heath Wellman’s liberal proposal for justifying the right to control immigration, which understands the right as derivative of a general right to freedom of association held collectively by the people of the state. The paper argues that state legitimacy and freedom of political association fail to connect in the way required to justify a right to control immigration. Wellman’s argument conflates the state as an institution and the people as a political collective and elides the difference between territorial jurisdiction and associational freedom.

  • 4

    Christopher W. Morris, An Essay on the Modern State (Cambridge: Cambridge University Press, 1998).

  • 5

     E.g. A. John Simmons, ‘On the Territorial Rights of States,’ Philosophical Issues 11 (2001): 300-26, p. 306; Michael Blake and Mathias Risse, ‘Migration, Territoriality, and Culture,’ in J. Ryberg, T.S. Petersen, and C. Wolf (eds.), New Waves in Applied Ethics (Basingstoke: Palgrave Macmillan, 2008), pp. 153-181; David Miller, ‘Territorial Rights: Concept and Justification’, Political Studies 60 (2012): 252-268, p. 253.

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  • 9

    Anna Stilz, ‘Nations, States, and Territory,’ Ethics 121: 3 (April 2011): 572-601, provides the most comprehensive account of a (Kantian version of) the legitimate state theory of territorial rights. Here I will not go into the details of Stilz’s theory, which includes some elements with no obvious counterpart in Altman and Wellman’s theory.

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  • 10

    Buchanan, ‘The Making and Unmaking of Boundaries,’ pp. 153-55; Stilz, ‘Nations, States, and Territory,’ pp. 587-89.

  • 14

    Altman and Wellman, A Liberal Theory of International Justice, pp. 5, 37-41.

  • 15

    Altman and Wellman, A Liberal Theory of International Justice, pp. 2-5.

  • 16

    Altman and Wellman, A Liberal Theory of International Justice, p. 3.

  • 17

    Altman and Wellman, A Liberal Theory of International Justice, p. 3. Wellman also relies on similar formulations elsewhere, e.g. on p. 16 in Christopher Heath Wellman, ‘In Defense of the Right to Exclude,’ in P. Cole and C.H. Wellman, Debating the Ethics of Immigration: Is there a Right to Exclude? (Oxford: Oxford University Press, 2011), pp. 13-56. On p. 102, note 10, in ‘The Democratic Case for Open Borders,’ in P. Cole and C.H. Wellman, Debating the Ethics of Immigration: Is there a Right to Exclude? (Oxford: Oxford University Press, 2011), pp. 93-103, Wellman explicitly connects state legitimacy to territorial rights: ‘other things being equal, those who occupy a territory enjoy jurisdictional rights over this land as long as they are able and willing to perform the requisite political functions.’

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  • 18

    Altman and Wellman, A Liberal Theory of International Justice, p. 4.

  • 19

    Altman and Wellman, A Liberal Theory of International Justice, p. 3.

  • 20

    Sune Lægaard, ‘What is the Right to Exclude Immigrants?’ Res Publica 16:3 (October 2010): 245–262.

  • 21

    Miller, National Responsibility and Global Justice, pp. 215-16.

  • 22

     Cf. Sarah Fine, ‘Freedom of Association Is Not the Answer,’ Ethics 120 (2010): 338–356, p. 355.

  • 23

    Altman and Wellman, A Liberal Theory of International Justice, pp. 160-61, 162, 165, cf. Christopher Heath Wellman, ‘Immigration and Freedom of Association,’ Ethics 119 (2008): 109–41, pp. 111, 113-14, 117.

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  • 25

    Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), p. 158.

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  • 26

    Altman and Wellman, A Liberal Theory of International Justice, p. 161, cf. Christopher Heath Wellman, ‘Immigration and Freedom of Association,’ Ethics 119 (2008): 109–41, p. 112, and Wellman, ‘ In Defense of the Right to Exclude,’ pp. 21-22. See also Stilz, ‘Why do states have territorial rights?’ p. 206, and Stilz, ‘Nations, States, and Territory,’ pp. 590-91.

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  • 27

    Altman and Wellman, A Liberal Theory of International Justice, p. 161; cf. Wellman, ‘Immigration and Freedom of Association,’ pp. 112-13.

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  • 29

    Miller, National Responsibility and Global Justice, p. 211.

  • 30

    Fine, ‘Freedom of Association Is Not the Answer,’ pp. 345-48.

  • 31

    Altman and Wellman, A Liberal Theory of International Justice, pp. 160-163; Wellman, ‘Immigration and Freedom of Association,’ pp. 113-14.

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  • 32

    Fine, ‘Freedom of Association Is Not the Answer,’ p. 345.

  • 33

    Altman and Wellman, A Liberal Theory of International Justice, p. 100.

  • 34

    Altman and Wellman, A Liberal Theory of International Justice, p. 163; Wellman, ‘Immigration and Freedom of Association,’ p. 115; Wellman, ‘In Defense of the Right to Exclude,’ pp. 40-41, compare Miller, ‘Territorial Rights: Concept and Justification,’ p. 265.

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  • 35

    Altman and Wellman, A Liberal Theory of International Justice, pp. 16-18.

  • 36

    Altman and Wellman, A Liberal Theory of International Justice, p. 19.

  • 37

    Altman and Wellman, A Liberal Theory of International Justice, pp. 159-60; Wellman, ‘Immigration and Freedom of Association,’ pp. 110-11.

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  • 38

    Altman and Wellman, A Liberal Theory of International Justice, pp. 176-78.

  • 40

    Fine, ‘Freedom of Association Is Not the Answer,’ p. 355.

  • 42

    Altman and Wellman, A Liberal Theory of International Justice, p. 1, emphases added.

  • 44

    Altman and Wellman, A Liberal Theory of International Justice, p. 189.

  • 45

     Cf. Stilz, ‘Why do states have territorial rights?’ p. 198.

  • 48

    Altman and Wellman, A Liberal Theory of International Justice, p. 7.

  • 49

    Altman and Wellman, A Liberal Theory of International Justice, p. 172; Wellman, ‘Immigration and Freedom of Association,’ p. 131.

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  • 50

    Fine, ‘Freedom of Association Is Not the Answer,’ pp. 343-44.

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