Volume 3, Issue 2 - Special Issue: The Ethics of Immigration in a Non-Ideal World, Guest Editors: Jan Brezger, Andreas Cassee and Anna Goppel

The central topic addressed in this essay is the relationship of duties of justice towards refugees and the distribution of responsibility for the protection of refugees (with particular focus on the questions of whether doing one’s fair share of refugee protection entails that one has done all that is required to discharge one’s duty of justice towards refugees). I address this topic in relation to the institutional context of the current international refugee regime. The first part of the essay lays out the normatively salient features of the current refugee regime and the relationship between duties of justice to refugees and the fair distribution of refugee protection that it institutes. In the course of this discussion, I draw particular attention to the fact that it is an important feature of the current refugee regime that it does not limit the duty to protect refugees to doing one’s fair share of refugee protection. The second part of the essay considers whether this feature of the refugee regime is justifiable by addressing arguments concerning whether duties of justice are limited to doing one’s fair share of refugee protection. In particular, this section addresses the argument proposed by David Miller that there is no duty of justice to take up the slack that is produced by the non-compliance of other actors. It argues that Miller’s argument is invalid and that duties of justice towards refugees may require doing more than one’s fair share, but also that there is an obligation to seek the fairest arrangements compatible with effective refugee protection. In the final section, I consider the significance and difficulties of the issue of a fair distribution of refugee protection for the contemporary refugee regime.

Many political theorists argue that immigration restrictions are unjust and defend broadly open borders. In this paper, I examine the implications of this view for individual conduct. In particular, I argue that the citizens of states that enforce unjust immigration restrictions have duties to disobey certain immigration laws. States conscript their citizens to help enforce immigration law by imposing legal duties on these citizens to monitor, report, and refrain from interacting with unauthorized migrants. If an ideal of open borders is true, these laws are unjust. Furthermore, if citizens comply with their legal duties, they contribute to violating the rights of migrants. We are obligated to refrain from contributing to rights-violations. So, citizens are obligated to disobey immigration laws. I defend the moral requirement to disobey immigration laws against the objection that disobedience to the law is excessively risky and the objection that citizens have political obligations to obey the law.

In this paper, I examine arguments commonly made by both theorists and advocates on behalf of regularization of unauthorized immigrants in liberal democratic states. Most such arguments begin with the premise that the irregular immigrant has committed at least a pro tanto wrong against the state, but they then go on to maintain that this wrong should be regarded as overridden in some circumstances. I identify here both the initial premise of wrongdoing and several versions of the claim for its override. More broadly, I consider why the idea of immigrant wrongdoing is so central in these debates. Briefly put, the idea captures the normative force of the border once interiorized. The very existence of irregular migrants presupposes both exclusionary border rules and their incompleteness or failure. The wrongdoing frame becomes the default organizing response to this failure. Disputes over the meaning, significance, management and possible defeasement of immigrant wrongfulness demonstrate the enduring difficulties involved in accommodating states’ constitutive border norms with the more inclusionary norms prevailing within.

The migration debate highlights a crucial shortcoming of non-ideal theory. Non-ideal theory, this essay argues, is in a sense still too ideal . The open border approach to minimal global justice reveals that non-ideal theory is missing the appropriate tools for engaging moral problems that are brought about by a thorough lack of empathy. To remedy this flaw, I conceptualize a two-tier approach to non-ideal theory. The basic idea behind the two-tier approach is adding the toolset of instrumental morality to non-ideal theory. Instrumental morality, I argue, should take center stage whenever standard non-ideal theory fails to accomplish its task. Applying the approach to global justice, the article will make the case for charter cities. The policy of creating charter cities is built on the insight that in a world plagued by limited empathy, justice must be advanced in accordance with and not against the existing interests.

In this paper I will defend a limited right to exclusion. Legitimate states are entitled to refuse the entrance of unwanted immigrants, if necessary with force. However, I will also work out leverage points for a cosmopolitan critique of this view, one that starts with national borders as they are and constructs human rights conditionalities as they could be. In particular, I propose an immanent critique of Michael Blake’s jurisdictional theory of immigration. Blake gives a compelling argument that sovereign states have a prerogative to decide upon their own border policies, a prerogative that is only constrained by the international human rights regime. However, even if cosmopolitans accept this argument (which I think they should), they still have good reasons to expand the prevailing human rights regime in three respects: with regard to the classification of basic human rights, the domain of human rights obligations, and blind spots of the current human rights regime.

The article addresses the prospective responsibility of states to protect citizens from emigration pressures. After establishing the moral weight of the interest in staying, the article proceeds to explain why the interest to stay is comparatively more resistant to restrictions than the interest in exercising freedom of movement across borders. On this basis, the argument is then advanced that immigration fees can be charged on (well-off) immigrants as a means to protect economically vulnerable residents in recipient countries from emigration pressures. The argument that I will advance is in at least one sense non-consequentialist: it accounts for the need for immigration fees without relying on (problematic) assumptions about the consequences of immigration. Furthermore, the argument is also realistic in so far as it accepts that states have the right to restrict immigration.

According to the Democratic Stability Argument, since currently existing democratic states are overwhelmingly likely to play a leading role in the establishment of a just cosmopolitan order, should one ever be established, there are moral reasons to take measures that are necessary to preserve the adequate functioning of these states. If large-scale immigration can undermine their adequate functioning, then immigration restrictions are justified even from a cosmopolitan perspective, under non-ideal conditions. This paper argues that this argument may not succeed in justifying immigration restrictions under current conditions. Properly understood, the problem involves the competing claims of current poor admission-seekers and of the global poorest at some point in the future, i. e. the earliest feasible date of the establishment of the cosmopolitan order. The paper invokes normative arguments suggesting that the claims of the poorest in the distant future do not have lexical priority as a matter of principle. It also argues that available empirical estimates imply that the claims of admission-seekers in the present and near future potentially outcompete the claims of the poorest in the distant future. These considerations point towards a specification of the Democratic Stability Argument rather than to its complete rejection.