Michael Blake defends the common sense position that states have the right to exclude people who wish to enter them. As we saw last time, this is denied by those who support open borders, such as Carens.
Blake argues that the right to refuse entry to people who wish to immigrate is based on the fact that the state owes obligations to its members that it does not owe to non-members. Blake contends that the existing members of a state have discretion over whether they wish to accept these obligations to new members or not (Blake 2020, 67–68).
The right to exclude, as Blake understands it, is limited. There are cases where a state cannot exclude people who wish to enter. But there are also cases where it can and that is enough to set his viewpoint apart from open borders.
The argument starts with human rights. Blake asserts that human rights have three levels of correlative obligations (Blake 2020, 70).
While everyone has the same human rights, states have different obligations corresponding to these rights for people within their territory than they have for people outside their territory.
All states have the first category of obligations to everyone. For example, every state is obliged to abstain from torturing anyone, whether citizen or non-citizen. However, states bear the second and third categories of obligations only to people within their own territory (Blake 2020, 71).
Consequently, when someone enters a state’s territory, the state gains a new set of responsibilities towards that person. Specifically, it gains obligations to protect and fulfill that person’s human rights (Blake 2020, 72).
The right to exclude potential immigrants follows from a more general moral principle: “we have a presumptive right to be free from others imposing obligations on us without our consent” (Blake 2020, 74).1 He uses Judith Jarvis Thomson’s celebrated argument for the right to abortion to back up his point (Blake 2020, 75–76). Thomson had said that being pregnant is similar, for moral purposes, to being physically attached to a sick violinist who needs to use your organs for nine months in order to survive and illness. She argued that it would not be unjust to refuse to remain hooked up to the violinist and, accordingly, it would not be unjust to abort a pregnancy. Blake thinks the lesson is that you can only be obliged to give aid to a stranger if you consent to do so.
There is a brief digression to address an objection (Blake 2020, 76–78). Then Blake states his conclusion.
The would-be immigrant who wants to cross into a given jurisdiction acts to impose a set of obligations upon that jurisdiction’s current residents. That obligation limits the freedom of those residents, by placing them under particular obligations to act in particular ways in defense of that migrant’s rights. In response to this, legitimate states may refuse to allow immigrants to come in, because the residents of those states have the right to refuse to become obligated to those would-be immigrants. (Blake 2020, 78)
In section three, Blake takes up two objections. In each case, discussion of the objection leads him to qualify his claim.
The first objection contends that if states can limit immigration, then, by the same token, subordinate units of a state can do the same. So, for instance, the government of California can prevent Texans from entering its state and vice versa.
In answering this objection, Blake concedes that a state can lose its right to control immigration to a higher political unit such as the European union.
The second objection notes that the argument assumed that the human rights of the potential immigrants are protected in their home country. This assumption is, sadly, often false. In response, Blake notes that this is what asylum is for (Blake 2020, 83). That is, even if states have a general right to exclude migrants, they do not have a right to exclude people who are fleeing from human rights abuses at home.
In section four, Blake considers three more objections.
If there were a right to exclude migrants from entering a country, there would also be a right to expel current citizens. But, the argument goes, there is no right to exile citizens. Consequently there cannot be a right to exclude would be immigrants as well. (Blake 2020, 86–88)
If there were a right to refuse to accept new obligations to a potential immigrant, there would also be a right to refuse new obligations to people being born within one’s country. But, the obligation continues, there is no right to refuse obligations to protect the rights of newborn babies (Blake 2020, 88–90).
When immigration is costless to the existing citizens, there is no reason to give them control over who can immigrate (Blake 2020, 90–92).
I intend to discuss the second objection, namely, the one that says that if they state can refuse to admit non-citizens, it can also refuse to recognize children as future citizens. You can see Blake’s answer on pages 86-88.
I should say that he only says that this principle might be defensible and that he cannot show that this is so (Blake 2020, 74). Be that as it may, I think he needs it for his argument to work.↩︎