Is there a human right to migrate? Only if the territories of nations are ‘common land’, unowned by the natives. This is a bleak and strange idea.
This is the fourth entry in a series of six articles on ‘open borders’ migration policies. You can read the first half of the series here, here and here. In the first half, I looked at why social democrats, communitarians, and conservatives should oppose open borders. In these last three articles, I look at arguments for open borders to expose their false assumptions.
One of the strongest arguments for open borders policies is that migration is a human right, so border control a rights violation. Then, a government could only be justified in preventing someone entering its country if they were a fugitive criminal, or reasonably expected to commit crimes. For reasons which will become clear, I’m going to call this the “Every where’s a Desert, Everyone’s a Nomad” argument, or the EDEN Argument for short.
To work out what human rights there are, we usually need a moral anthropology: a theory of human nature and hence human flourishing. And we need a political theory to translate what is good for humans into what governments owe them. All such theories are controversial. So, I’ve linked to Michael Huemer’s argument that migration is a human right, since he attempts to make it without appeal to any political theories. He doesn’t quite succeed.
Instead of a political theory, Huemer appeals to a thought experiment. He compares the migrant with someone who wants to visit a marketplace, and the government of their destination nation with another person already at that marketplace, who physically detains the visitor to prevent them from reaching it.
The detainer has no right to stop the detainee from visiting the marketplace. She must coerce the detainee to prevent him from getting there. This is where the violation comes in. People have a general right to travel, a right which follows from their right to control their own body. Border controls violate that right.
Here’s an alternative analogy: I own a farm, my homestead. I put up fences around the fields. I do this because, although many who want to pass through my farm are harmless, some have untrained dogs which will cause my ewes to miscarry, or want to play cricket among my crops. Since I’m busy running a farm, I don’t have time to patrol it so as to justly discriminate between harmless hikers and harmful dog-walkers. Even the hikers aren’t perfectly harmless – if they are ignorant of the countryside code, and there were an infinite number of them, they’d make a mess even of my fallow fields.
I’m entitled to control passage in and out of my farm as I see fit: so long as I’m not going out of my way to attack passersby or disproportionately harm intruders, I don’t need to offer particular justifications for every ‘act’ of border control. I do have the right to stop people from visiting my farm. Their rights to move their body where they want end where my property begins.
Which case is more like the government controlling its borders? Do the people who live in a territory own that territory? If they do, then if they use their government to limit access to it, they won’t be infringing anyone’s rights any more than I infringe others’ rights by putting up a fence around my own farm.
To answer this question, we need a theory of property, an answer to the question “what determines whether someone owns something?”. Theories of property can be divided into three kinds: what I’ll call positivist, reductionist, and labour-mixing.
Positivism claims that legal institutions are logically prior to property rights: if there are laws concerning ownership, they determine who owns what. There are no ‘natural’ property rights against which a particular legal dispensation can be judged as ‘correct’ or ‘incorrect’.
On positivism, if international law really is law, then governments own the territories they govern. (Typically on behalf of the people who constituted that government.) So my farm analogy will be more apt than Huemer’s marketplace analogy, and there is no right to migrate from one country to another. If international law is not really law, then whether or not any particular government owns its territory will depend on whether its own legal system says it does.
For what it’s worth, the UK government owns the territory of the United Kingdom. (If you have a Whig interpretation of the UK constitution, it owns it on the people’s behalf.) So the UK at least is not just no-man’s-land.
Reductionism claims that you own only and whatever you can in fact keep, given the length of your arm and the strength of your steel. Our language and habits concerning property messily recognize a web of underlying social (economic, military, geographic) facts. Here’s a tasteless example: if you can’t persuade your girlfriend to be faithful to you, then whatever she says, she’s not really your girlfriend. Finders: keepers. Victor? Spoils!
Reductionism is no use to the defender of the right to migrate. According to reductionism, whether a people really owns its territory depends on whether its government can in fact keep the territory under control. So whether they are morally entitled to control the borders depends on whether they can in fact control the borders. Tell someone they mustn’t build a border wall because it will violate some strangers’ rights, and they can reply: “not as soon as I’ve built it, it won’t!”.
Finally, we have the labour-mixing theory of property. Owed to John Locke, the idea is that each of us owns ourselves; and we can only get property out of the rest of the world by mixing ourselves with it, in practice by mixing our labour with it. In the case of land, this means settling it. If a person takes some desert and sows crops and tends them, then the patch of desert covered by her farm becomes hers.
Presumably, groups of people can own things by jointly mixing their collective labour. Then, if groups form a government to manage their affairs better, their government will own it on their behalf. So, if that owned item is land, it will be their territory, and they’ll be within their rights to control its borders in their own interest.
How can we get the EDEN Argument to work, then?
First, we adopt the labour-mixing theory of property, instead of positivism or reductionism.
But we need to deny that the people of any nation have mixed their labour with their land. This works if you suppose either of two things.
Either, that a people can’t ‘hand on’ the land they settle from one generation to the next. Then every generation of people will need to settle it again. If they fail, they lose ownership.
You can imagine, then, that the current UK is not like a farm: it’s unsettled land, a vast ‘commons’ or desert, in which you and I are merely wandering through, camping out like nomads. In that case, we have no more claim to it than anyone living elsewhere in the world. But really?
Alternatively, you can insist that a nation’s worth of people is too ‘big’ a group to have the kind of collective agency required for us to be settling the land together, and hence owning the land together. Perhaps the people of Wessex could own Wessex in this way, but not the people of England own the Seven Kingdoms; or, perhaps the Wykehamists could own Winchester this way, but not a people so numerous as the West Saxons own a place so vast as Wessex.
If this were true, then given recent developments in labour mobility, almost no territory in the UK and any similarly late-capitalist nations will be owned by anyone. (Some actual farmers will own some actual farms.) When we grew up, our parents were just camping out in those towns; and our mobile careers are long, perpetual marches through the wilderness of the so-called United Kingdom.
If either of these assumptions are held, then the EDEN Argument will work. Border control will be a violation of the rights of migrants. We will all be homeless wanderers in a vast desert, albeit of tarmac and concrete rather than bones and dunes. And we will have no stronger claim than anyone, anywhere, to the shade of some rocky outcrop among its shifting sands.
This is how the anarchist and the libertarian sees you and the place where you grew up in, live and work: not exactly Eden.
Hugh Burling is a doctoral candidate at the University of Cambridge.
Enjoy this article? Subscribe to the Quad. Featured photo by Elliot Killingbeck, used under a Creative Commons Share-alike 3.0 Unported licence.