Why do we have obligations to migrants and refugees?
Andreas Niederberger
Zürich, September 23, 2016 – Forum: Forced Migration: Research and Policy
Joseph H. Carens, “Aliens and Citizens. The Case for Open Borders”, in: The
Review of Politics 49/2 (1987), pp. 251-273
“Borders have guards and the guards have guns. This is an obvious fact of
political life but one that is easily hidden from view - at least from the view of
those of us who are citizens of affluent Western democracies. To Haitians in
small, leaky boats confronted by armed Coast Guard cutters, to Salvadorans
dying from heat and lack of air after being smuggled into the Arizona desert,
to Guatemalans crawling through rat-infested sewer pipes from Mexico to
California – to these people the borders, guards and guns are all too apparent.
What justifies the use of force against such people?”
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26.09.2016
Philosophy and Migration/Refugees
• Migration/refugees were not important topics in philosophy until the 1980s
 Some proposals of obligations to admit refugees in debates on natural/international law
(Vitoria, Grotius, Kant [Weltbürgerrecht] etc.)
• 1980s: Michael Walzer: Defense of right to exclude foreigners in the constitution of contexts of
justice
• Debate on the ethics of migration with Carens’ article (1987)
• Carens: Discussion of migration as question of ideal theory
 Migration as an issue of distributive justice (not of aid)
 Migration as right, which does not depend on wrongdoing on the side of host communities
 There are no refugees in ideal theory!
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26.09.2016
The Ethics of Migration-Debate
Two major positions in the debate:
(1) Carens et al.: Human/basic right to freedom of movement.
(i) People know they might have (probably even idiosyncratic) reasons for migration.
(ii) People know that these reasons might be insufficient for others to omit certain things (for
instance closing the access to their society)
(C) Just world will provide people with liberty to migrate without giving reasons for migration.
Limitations of the right to freedom of movement are only allowed, if granting it endangered the
stability of the public order.
No necessity of special status for refugees.
We have obligations to migrants and refugees, because they have right to freedom of
movement.
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26.09.2016
The Ethics of Migration-Debate
Two major positions in the debate:
(2) David Miller, Kit Wellman et al.: Human/basic right to freedom of association.
(i) Moral equality consists most importantly in personal autonomy.
(ii) Personal autonomy implies the basic right to self-determination.
(iii) Freedom of association adds nothing to the right to self-determination, it only explains that
self-determination can also be exercised together and in coordination or cooperation with
others.
(C) There are no prima facie obligations to migrants. But there is a right to close the border.
But: Possibly supererogatory/self-imposed obligations to refugees (duties of aid in cases of
emergency).
We have obligations to refugees, if/because we want to be a moral community (“sittliches
Gemeinwesen”).
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26.09.2016
The Ethics of Migration-Debate
What’s wrong with the debate?
• Positions are too general: There are clear cases, where we would want to be able to block
immigration (for instance: colonialism), and there are clear cases, where blocking
immigration is inadmissible (for instance, if migration is direct result of our policy).
• Positions miss the social, political, economic and legal interconnectedness of the world
and the reasons people have for migrating (for ex. people migrate, because they want to
become marine biologists; states form like golf clubs).
• Problematic relationship to existing international law and politics.
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26.09.2016
Needs and Vulnerabilities of Refugees and Migrants
• Paradigm shift from rights to needs:
Criticism that debate about rights is too abstract to explain, which obligations we have with
regard to whom – but if people suffer or if their basic needs are not fulfilled, it seems
obvious that we should respond to their situation (Peter Singer’s child in the pond).
• No necessary connection to refugees and migrants, because often the “poorest” do not flee
or migrate, but “Can implies ought”-principle: We can act with regard to refugees and
migrants, but we might not be able to act with regard to the distant poor (or we might help
the distant poor, if we allow for migration).
• Focus on “economic refugees” or forced migration (no interest in general migration and very
little interest in political persecution): Conditions/suffering force/s people to migrate.
We have obligations to migrants and refugees, because they need help.
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26.09.2016
Needs and Vulnerabilities of Refugees and Migrants
Problems with regard to this approach:
• Revisionary with regard to existing legal rights and obligations: Refugees fulfilling the criteria
of the Refugee Convention are often not the most needy (but R2P).
• Treatment of symptoms, not of root causes: Causes and reasons, why people suffer, are
often not important (“we cannot overcome global injustices, but we can help these
people…”).
• Duties to help people, who suffer – but no obligations beyond this?
• Logics of help is very different than the logics of rights: Help depends on the goodwill and
moral motivation of the agent helping, rights give control over duties to the rights holder.
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26.09.2016
The Alternative…
• We should keep the idea of rights or even “human rights” (in the sense of rights to have
rights), of migrants and refugees, but these are no general, unconditional rights.
• Rights require not only goods and services, but also institutions/procedures, which secure
these rights and which rights holders can address.
• Rights of migrants/refugees and corresponding obligations depend on the given world
order and its injustices.
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26.09.2016
The Alternative…
Three types of reasons for flight and migration trigger a right to migration:
(1) Fact that people are deprived of citizenship or some similar political, social and legal
standing by persecution gives them strong reason to migrate and, in consequence,
also strong reason for a right to migration. Ultimate criterion of legitimacy of any
global order will be legal, political and social standing of every individual.
 States, borders etc. can only be legitimate as means or instruments for realization of
this primary criterion of legitimacy and if they are being used as instruments to
prevent some from being able to get this standing they lose all legitimacy.
 Right to migration as way to get access to rule of law and citizenship.
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26.09.2016
The Alternative…
Three types of reasons for flight and migration trigger a right to migration:
(2) If policies and decisions in one state or region subject other states, regions or their
inhabitants to specific rules or measures, which they cannot control (for instance:
economic policy, military support or interventions), this entitles respective people to
migrate to the first states/regions as a means to contest or as remedy against policies
and decisions.
 Entitlement is only prima facie entitlement and ultimate force will also depend on
other factors, like extent of domination, reciprocity of domination or readiness of
state to change its policies and decisions.
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26.09.2016
The Alternative…
Three types of reasons for flight and migration trigger a right to migration:
(3) Political/personal self-determination depends on possibility to be able to associate
with specific others and to pursue common projects and build institutions with them.
This requires possibilities to not cooperate with globally everyone (cf. arguments
against free trade agreements), but also possibilities to redesign existing political and
social units (and to redraw their boundaries).
 Migration can be necessary to develop new kinds of cooperation – and in cases,
where there are good reasons for this cooperation, there will also be good reasons
for right to migration. In other cases, where cooperation would be detrimental, there
could even be right to prevent emigration.
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26.09.2016
The Alternative…
• Migrants and refugees have right to migrate (and we have corresponding obligations), if/when their
context of origin deprives them of their social, legal and/or political standing or they are victims of
external domination.
• There should also be possibilities to develop new contexts of social and political cooperation and if
this requires migration it should be allowed.
Thank you for your attention!
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26.09.2016