The Immorality of Borders
My focus in this article is on a
specific problem concerning the protection of asylum seekers, refugees and
other migrants, and that is the tension between the framework of human rights
and international law that sets out their protections, and the sovereignty of
nation states who actively seek to undermine those protections. I’m not going
to distinguish particularly between different kinds of migrants because I’m not
sure that’s helpful. Part of my work has been on the right to health of
irregular or ‘illegal’ migrants, pointing out according to the international
conventions that the United Kingdom has signed up to, to refuse them access to
public health care is a violation of their human rights. Anybody within the
national territory falls under the protection of the framework of human rights,
regardless of status. That’s what human rights are for – protecting humans, not
just protecting people with a particular status.
But nation states
don’t see it that way – their sovereignty over their territory means they have
the right to control who crosses their borders. There is freedom of movement at
the international level but it’s very limited. Everybody has the right to leave any state, and citizens have a right to return to their own state. As Selya Benhabib points out,
Article 14 of the UDHR, the right to asylum, does set out a right to actually
cross a border as well, and Article 15 states that everyone has a right to a
nationality, such that they should not be arbitrarily deprived of their
nationality or denied the right to change it.[i]
The problem is
the clash between these international human rights regimes and national
sovereignty. Benhabib again: “… the Universal Declaration is silent on states’ obligations to grant entry to immigrants to uphold the right of
asylum, and to grant citizenship to residents and denizens. These rights have
no specific addressees and they do not appear to anchor specific obligations on the part of second and third parties
to comply with them. Despite the cross-border character of these rights, the
Declaration upholds the sovereignty of individual states. Thus, a series of
internal contradictions between universal human rights and territorial
sovereignty are built into the logic of the most comprehensive international
law document in the world.”[ii]
And so the current system places asylum seekers, refugees and residents seeking
nationality in a precarious position.
There are many
ways in which states are over-riding their obligations and violating the rights
of migrants, but I’ll mention just two of them here now. One of them is
detention. The
number of migrants in detention in EU has increased from 30,000 to 50,000 in
past 10 years.[iii] The UK has
one of the largest immigration detention estates in Europe. From 2009 to the
end 0f 2011, between 2,000 and 3,000 migrants were in detention at any given
time. Around 27,000 people were put in detention in 2011 – that figure has been
around that for the last three years. The most common category of immigration
detainees is people who have sought asylum in the UK. In 2011 that was 50% of
the total immigration detainee population. The Migration Observatory at Oxford
University has estimated that the Campsfield House IRC costs about £8.5 million
a year to run.[iv]
The conditions under which
migrants are detained have been a cause of great concern. In April and May
2004, Bail for Immigration Detainees employed a doctor from MSF UK to carry out
medical assessments of 13 adults and three children under detention. The key
findings were: mental health problems in eleven of the 13 detainees, features
of post-traumatic stress in nine of them, and more serious conditions such as
self-harm and suicide attempts. There was also a range of medical conditions in
12 of the 13 adults that should have been receiving medical attention, such as
a breast lump, and symptoms of TB, which were not being addressed by the health
staff at the IRC. The British Medical Journal has reported that, “detainees,
particularly those held for long periods, suffer from profound hopeless,
despair, and suicidal urges…”. The Institute of Race Relations recorded 16
self-inflicted deaths of those held in custody under the Immigration Act powers
in prisons and removal centres between 2002 and 2004.[v]
A report by Medical Justice, called The Second Torture: the immigration
detention of torture survivors, found that victims of torture are routinely held in
IRCs in breach of the government’s own rules.[vi]
The second feature is the
externalization of immigration controls. In their recent report Amnesty
International point out that: “Over the last decade, European countries have
increasingly sought to prevent people from reaching Europe by boat from Africa,
and have ‘externalized’ elements of their border and immigration control. Externalization
refers to a range of border control measures including measures implemented
outside the territory of the state – either in the territory of another state
or on the high seas. It also includes measures that shift responsibility for
preventing irregular migration into Europe from European countries to countries
of departure of transit.”[vii]
Their study of the measures agreed between Italy and Libya leads them to
conclude that they “result in serious human rights violations.”[viii]
They argue that similar agreements between other European governments and north
and west African states, and between the EU as a while, should be looked at,
but they’re concerned with the lack of transparency about these agreements and
their practices.
Polly Pallister-Wilkins says:
“Matthew Gibney from the University of Oxford’s Refugee Studies Centre ↑
has argued that outsourcing migration-management allows liberal governments and
institutions to eschew the constraints placed upon them by the very liberal
democratic norms they are trying to circumvent. Thus, the need for the EU to
maintain its liberal identity has meant that many of the everyday practices of
migration-management, such as immigration prisons and various militarised
responses are situated outside of Europe, outsourced … mostly in North African
states with fewer humanitarian obligations and pretensions to a liberal
identity with the knowledge and the funding of the EU and IMS and away from the
prying eyes of the fifth estate.”[ix]
We could go on, but what we can
see is that while we have an international regime of human rights and
conventions designed to protect migrants, European states, and others
throughout the world, are seeking to attack, intimidate and brutalize irregular
migrants including asylum seekers, through the violation of their human rights.
What I want to suggest is a
radical solution, and because I’m a philosopher I’m allowed to dream about
alternative possibilities that would otherwise be dismissed, and the radical
solution I argue for is a world without borders, a world of freedom of
international movement. At the moment nation states claim sovereignty over who
can cross their borders but we’ve seen it is possible to challenge and limit
that right through international law. My suggestion is we remove it altogether.
That’s a big argument to make so
I’m not going to try to make it here. I just want to make three points:
The first is to notice that this
proposal is not that difficult to imagine as it seems. A world without borders
is not a world without political boundaries and territory. The fact is that
there are all sorts of political boundaries that mark out territory which are
completely open in the way I’m suggesting. For example I crossed the border
between Wales and England today without any drama, and there are boundaries
below that level, between counties, provinces, councils and so on. All these
boundaries mark out political territories that demarcate democratic
institutions, tax raising powers and so on, and yet people cross them everyday,
including to take up residence. Nation state borders as they currently exist
are actually comparatively rare, the exception rather than the rule when it
comes to political boundaries. So what I’m suggesting is in one sense a very
tiny change – that the border between the United Kingdom and France become like
the border between Wales and England and Scotland.
The second point is related –
again that what I’m arguing for is not in fact that difficult to imagine. In
effect what I’m proposing is that immigration comes under the some global
regime as emigration. At present everybody has the right to leave any state,
including their own, but this right is derogable. That means it can be
overridden by individual states under extreme circumstances, for example a
health pandemic. There’s been much legal debate amongst scholars about the
threshold for triggering the suspension of the right to leave, but everyone
agrees it has to be set very high.
What I’m suggesting is that
immigration be brought under the same arrangement. Immigration controls would be the exception rather than the
rule, and would stand in need of stringent justification in the fact of clear
and overwhelming evidence of national catastrophe, and become subject to
international standards of fairness and legality.
The third issue I want to explore
is what the content of a human right to international movement might look like
and here I’m going to have to be terribly sketchy, but hopefully it will be
obvious the extent to which this would change the international order when it
comes to migration. My
argument is that this particular right has to be embedded in a wider
perspective of global justice, connecting theories of rights, justice, and the
ethics of migration. The right to freedom of international movement must give
people to power to resist global domination and exploitation, giving them
control over when, where, why and how they migrate, rather than the opening of
international borders alone.
The international
migration regime as it exists creates conditions of oppression, domination and
inequality, and border controls function mainly to prevent movement of the
global poor. We need to think about the right of migration within this context
of power and domination. We have a global migration regime, through which a
block of powerful liberal capitalist states seek to prevent access for the poor
and unskilled while at the same time exploiting their labour at cheap costs
where they happen to be; and also actively seeking out those it considers
economically valuable from the poor world to meet their own needs, creating
more difficulties for ‘sending’ states in terms of the ‘brain drain’; and
maintaining more or less free movement between themselves as a block. The
European Union explicitly acts in this way, with free movement for citizens of
EU states, and immigration regimes which seek to recruit the skilled and
prosperous from the developing world, while presenting a fortress of fences and
detention camps for the poor and unskilled. This migration regime plays a role
not only in maintaining extreme inequalities of wealth across the globe, but
also extreme inequalities of global power. The right to freedom of
international movement – which will be the ground, along with other rights, of
one’s ability to control when, where, why and how one migrates – is at least
part of the answer to that domination and exploitation.
All this points
to the need for multilateral, rather than unilateral, governance of migration,
and the need for multilateral institutions to oversee that governance; and if
my arguments here have held any force, those multilateral institutions must
have a concern for human rights at their core. Arash Abizadeh argues that these
institutions must also be democratic, calling for “the formation of
cosmopolitan democratic institutions that have jurisdiction either to determine
entry policy or legitimately to delegate jurisdiction over entry policy to
particular states (or other institutions).”[x]
This would result in “jointly controlled and porous (not closed) borders.”[xi]
The overwhelming evidence is that leaving the right to control migration in the
hands of individual states has in the past and the present led to blocks of
powerful states dominating and exploiting the rest of the world. We need
multilateral democratic institutions to combat that domination. My claim is
that those institutions must embody and protect an fundamental human right to
freedom of international movement, which itself is part of a framework of
rights that empower people to have control over where, why, when and how they
migrate.
Phillip Cole
Visiting Professor in Applied Philosophy
Social Ethics Research Group
University of Wales, Newport
[i] Seyla
Benhabib (2006),
Another Cosmopolitanism (Oxford: Oxford
University Press, Oxford2006), p. 30.
[iii] GISTI- MigrEurope -- www.gisti.org/doc/plein-droit/58/migreurop.html.
[iv] Data from
The Migration Observatory, University of Oxford, Briefing: Immigration
Detention in the UK, published 22nd
May, 2012.
[v] www.biduk.org/.
[vi] Medical Justice, www.medicaljustice.org.uk/mj-reports,-submissions,-etc./reports/1953-qthe-second-tortureq-the-immigration-detention-of-torture-survivors-220512.html.
[vii] Amnesty
International, S.O.S. Europe: Human Rights and Migration Control (AI, 2012), p. 5.
[viii] AI, p.
17.
[ix] Polly
Pallister-Wilkins, “Searching for Accountability in EU Migration-Management
Practices,” www.opendemocracy.net/polly-pallister-wilkins/searching-for-accountability-in-eu-migration-management-practices.
[x] Arash
Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally
Control Your Own Borders”, Political Theory,
Volume 36, Number 1, February 2008, pp. 37-65, p. 48.
[xi] Abizadeh,
“Democratic Theory and Border Coercion: No Right to Unilaterally Control Your
Own Borders”, p. 53.
