Syrian refugees at the Slovenian border, September 20.

12.01.2016

Human beings are born to move and yet everywhere they find closed borders.
How did this change come about? I don’t know. What can make borders open and legitimate? That question I think I can answer.
(after Jean-Jacques Rousseau, The Social Contract)

 Within a short time span, the European Union has witnessed two major crises that have threatened its greatest achievements. The Greek debt crisis challenged the common European currency and now the Syrian refugee crisis jeopardizes freedom of movement and open internal borders within the Schengen area.

The building of fences in the middle of Europe is the most recent instance of a global trend. In the last 20 years border walls and fences have been erected or extended along the Mexican-U.S. American border, between Israel and the occupied Palestinian territories and along borders separating Saudi Arabia and India from their neighbours.[1] Combined with new surveillance technologies and remote control that the destination states of unwanted migration flows exercise outside their territorial jurisdiction, this shows that earlier views about a declining capacity and determination of liberal states to control their borders were wrong.

There is, however, a second and contrasting trend: an equally unprecedented rise of freedom of movement in the sense of international border crossings on the basis of legal entitlements rather than due to lack of enforcement of immigration control. At one end of the free movement spectrum, the numbers of international travellers has exploded and they travel much more frequently and over longer distances. And at the other end, in the EU’s Schengen Area, border controls have been dismantled and EU citizens not only move freely but can also take up work and residence in other member states. The EU experiment is no longer unique. The member states of Mercosur as well as Australia and New Zealand have also agreed on free access to residence and work for each other’s citizens. At a time when free movement is under threat in Europe, preparing for its defence requires us to reflect on its political and moral foundations.

Political theorists writing on migration tend to agree that liberal democracies have moral duties to admit refugees, but split into two camps on free movement. One camp, which is best represented by the US-Canadian theorist Joseph Carens,[2] considers the right of states to control immigration as morally suspect because it interferes with a basic liberty and because it preserves globally unjust inequalities of opportunity. The other camp, of which the Oxford-based philosopher David Miller is the foremost protagonist, argues that the right to free movement is only instrumentally important for individuals who would no longer need to move across borders if their basic needs were satisfied at home and asserts that democratic states need to control immigration in order to preserve solidarity and support for social redistribution among their citizens.[3]

Interestingly, both arguments tend to ignore the global trend towards citizenship-based free movement. Many states seem to be willing to widen opportunities for free movement if they perceive these as beneficial for their own citizens. Four drivers have led to expanding free movement opportunities. First, some states consider immigration (of the right kind of people) as crucial for their nation-building efforts. This was the main reason why borders were kept wide open in the Americas until World War One or why Israel maintains its controversial Law of Return. The second driver is a goal of regional economic and political integration, as in the EU where free movement has become the core of a supranational citizenship status. The third driver is the global trend towards toleration of multiple nationality, which entails free movement rights between two or more states. The fourth driver is exemplified by visa waiver agreements between states that have greatly facilitated long-distance travel, especially for the privileged citizens of wealthy democracies.

From a strictly cosmopolitan perspective all citizenship-based rights of free movement are morally suspect. If we consider free movement as a human right, then attaching it to citizenship means denying its universal character and discriminating between categories of persons on arbitrary grounds. Of course, not all human rights are global in scope. For example, the right to participate in free elections is a citizenship-based human right. The fact that this right is restricted to citizens is generally not regarded as morally arbitrary since it refers inherently to the relation between individuals and a particular government. From a human rights perspective, all governments ought to grant voting rights in free elections to their adult nationals and all human beings have a right to nationality.[4] There is thus no contradiction between asserting a human right to democracy and restricting this right to citizens. By contrast, citizenship-based free movement is regarded as morally suspect because it does not seem to depend inherently on a relation between citizens and their government and because it is not universal in scope.

Those who claim that free movement does not entail a special relation between individuals and particular governments interpret it as a negative liberty with which governments ought not to interfere. In this view, freedom of movement depends on the government of the territory of origin not restricting exit, the governments of territories of transit not restricting free passage and the governments of territories of destination not restricting entry and settlement. Free movement becomes possible if all governments refrain from interfering with human mobility.

Those who regard citizenship-based movement as an unjustified privilege can point out that the four drivers listed above are likely to leave significant numbers of persons without access to this human right. Moreover, this selective enjoyment is based on a morally arbitrary distinction, since citizenship is generally acquired at birth and human rights should never depend on circumstances of birth.

The moral force of this critique is compelling if we accept the premise that freedom of movement is a universal human right. However, this premise itself can be contested since it seems incompatible with core notions of sovereignty that are deeply entrenched in the international system of states. Asserting a human right to free movement without explaining how it could eventually be accepted by states as a norm of international law risks disconnecting moral critique from political reform.

I want to sketch therefore an alternative view. I start from the idea that in the current world freedom of movement is for good reasons based on citizenship but conclude that liberal democracies ought to expand opportunities for free movement and strive towards creating conditions under which it could eventually become a universal right with global scope. The first part of this normative strategy defends immediate and positive duties of states to enable free movement for their own citizens and to open their borders for the citizens of other states on a basis of reciprocity; the second part entails duties of assistance to other states that would enable more of these to join international free movement arrangements. This view entails that in the present world the admission of refugees and other forced migrants must be governed by principles of human rights, humanitarian duties and burden sharing between states rather than by a right of free movement.

Evaluating citizenship-based free movement

In an ideal world, it would make no difference whether free movement is considered a citizenship right or a human right, but in the present non-ideal world it does, since the human rights view risks devaluating existing free movement arrangements and blocking the most promising pathways towards actually expanding free movement rights.

The first of the four drivers listed above is clearly the least promising one in this regard. A nation-building rationale can support diverging attitudes on immigration, depending on how national identities are constructed. Nation-building narratives have sometimes promoted relatively open doors for immigrants who are regarded as future citizens, but the historic record shows that this is most likely to be the case in postcolonial settler societies. In the absence of empty and unclaimed territories such forms of nation-building have become illegitimate. In contemporary Europe, national identities are much more often invoked by those who see national identities under threat and advocate immigration restrictions.

Nation-building does, however, play an important role in promoting rights to return for emigrants and their descendants. More and more source countries of emigration engage in “global nation-building” by constructing long-settled populations of migrant origin as “diasporas” who have duties of political and cultural loyalty and economic contribution towards their countries of origin. In exchange, these states offer emigrants and their descendants citizenship status, voting rights and the right to return.

Ethnic nationalism is clearly unappealing for a liberal defence of free movement because it imagines the nation as a community of biological descent. But the core problem with relying on nation-building for promoting free movement is the same with civic nationalists. Nationalism of all stripes and varieties is partial towards co-nationals in the wrong way. Nationalist governments may promote the rights of their own nationals to enter other states and defend their rights there, but they rarely consider that they may be under a duty of reciprocity to grant similar rights to the citizens of other states in their own territory.

In contrast with nation-building efforts, the second, third and fourth drivers of free movement can be supported by liberal arguments. It would be difficult to argue that liberal states are morally obliged to form regional unions, such as the EU, or to join them if they are neighbours of such a union. Yet once a union has been established and has acquired properties of a supranational polity rather than merely of an international organisation, the argument for free movement inside union territory becomes normatively compelling. Since the states have agreed to pool their sovereignty for the sake of expanding their citizens’ freedoms and opportunities, restricting free movement within the union would be contrary to its purposes. If liberal states have a general duty to promote freedom of movement for their citizens, then economic and political regional unions of such states create an optimal international environment for fulfilling this duty. Within regional unions, free movement can eventually be upgraded from a right that member states grant each other reciprocally to a common right of citizens of the union and a condition for accession of new member states.

The limitations of regional unions as a strategy for promoting global free movement are, however, obvious. Forming them is not itself a normative requirement and depends on mutual compatibility of political systems and levels of economic development. And their regional nature relies on rough geographic contiguity of member states, which excludes countries that would meet the other accession conditions. The EU is not likely to offer membership to New Zealand or Canada.

The third global driver of free movement regimes is the least visible one. For roughly one century – from the 1860s when the USA started to negotiate the Bancroft Treaties with European states to the 1963 Council of Europe Convention on the Reduction of Cases of Multiple Nationality – international lawyers made great efforts to restrict multiple nationality, which they mostly regarded as an evil worse than statelessness. Since then, more and more states have given up on enforcing bans on dual citizenship. Liberal democracies have broadly accepted that acquisition of several citizenships at birth due to descent from parents with different nationalities or due to the combination of ius soli in the country of birth and ius sanguinis in the parents’ country of origin cannot be restricted without discriminating between parents on grounds of gender or between birthright citizens on grounds of ethnic origin. An even broader trend can be observed among source countries of emigration, including those with non-democratic regimes, to tolerate that their nationals abroad can acquire their destination country’s citizenship without losing their nationality of origin. A global survey has found that in 1960 only about one third of all states accepted dual citizenship for their expatriates, whereas about 70% did so in 2013.[5] Finally, most liberal democracies now also no longer require that immigrants who apply for naturalisation must renounce their previous citizenship. Since the legal status of nationality entails the right to return and the duty of states to admit their own nationals, multiple citizenship creates international free movement zones for individuals.

How should we evaluate the contribution of dual citizenship toleration to free movement globally? First, this driver is the only one that does not allocate mobility opportunities unequally between the citizens of rich democracies and those of poor and non-democratic states. There are several countries in the former group that restrict dual citizenship as much as possible (such as Austria and Norway) and many in the latter group that don’t. Second, if citizenship is allocated on the basis of genuine links, as it should be, then the persons benefiting from dual-citizenship based mobility rights and the countries between which they can move freely are not selected arbitrarily but according to the strongest claims. Individuals with strong ties to two countries are most likely to need mobility rights between these for the sake of maintaining family ties, finding jobs, or participating fully in society.

There are, however, also obvious limitations to this strategy. The very idea that citizenship ought to be based on genuine links makes it not only legitimate but even obligatory for liberal states to refrain from handing out passports to would-be immigrants in countries of origin if these individuals do not have any relevant ties to the citizenship-granting state. The same idea is also incompatible with an unlimited accumulation of different citizenships by individuals. A person with ten passports is more likely to have bought these in the emerging global market for citizenship than to have genuine links to all these states. So the genuine link constraint limits the scope of free movement based on multiple citizenship both in terms of individual access and in terms of the geographic scope of free movement. Notice that this constraint does not arise in the same way for free movement derived from supranational regional citizenship. In this scenario, every citizen of a member state has a genuine link to the union qua collective membership.[6]

The fourth driver of citizenship-based free movement is in many ways the most promising one since it does not presuppose either regional integration or a genuine link of the beneficiaries to destination states. Its normative justification starts instead from the duties of liberal states towards their own citizens and expands these to include support for free movement opportunities across international borders. The argument rejects the minimalistic view of freedom of movement as a negative liberty that imposes on states only a duty of non-interference. The duty of states to issue passports that are recognised as travel documents by other states takes already a significant step beyond a negative liberty approach. In the context of increasingly globalized societies this is not enough. Liberal states should broaden their citizens’ mobility opportunities by educating them in foreign languages, by concluding visa waiver agreements for travel purposes and by extending these to include settlement and work permits in other countries. Since especially this latter extension imposes significant duties on destination countries, the latter can be expected to cooperate in such an extension of free movement only if their own citizens are granted the same admission rights. This is why the duty of states to promote their citizens’ free movement opportunities must be complemented by a principle of reciprocity that obliges them to respect equivalent duties of other states.

The examples of the Nordic Passport Union, the British–Irish Common Travel Area, Mercosur and the Trans-Tasmanian Travel Arrangement between Australia and New Zealand demonstrate that reciprocal free movement does not presuppose regional political integration of the same density as in the EU. And, as the dual citizenship treaties and open admission policies between Spain and Latin America show, it does not presuppose geographic neighbourhood either. If liberal states have duties to promote their citizens’ interests and freedoms, why should it not be possible to drop also the criterion of shared history, language or culture that has facilitated reciprocity in the examples just mentioned?

At first glance, the limitations of this fourth strategy seem even more obvious than those of the regional integration and dual citizenship scenarios, since it is generally the wealthy and democratic states that grant each other’s citizens visa-free entry or that can negotiate unilateral privileges for their own citizens. Currently, Afghan passports provide their holders with visa-free access to 25 states, compared to 173 states and territories for British and German passports.[7] Extending entry privileges to settlement options would surely further reduce the number of states that are willing to consider such agreements and would forever exclude the unfortunate citizens of poor and less democratic countries.

Yet a realistic utopian vision must not only be realistic, it must also find the most promising path towards a morally attractive utopia. Since the other three strategies are inherently limited in their geographic scope or with regard to the categories of persons who would qualify for free movement rights, reciprocity between states remains the only route that could eventually lead to free movement on a global scale. This would require a move from conditional to generalised reciprocity. Instead of states making the admission of immigrants conditional upon reciprocal admission of their citizens by the immigrants’ country of origin, the former would act upon the assumption that, if they were willing to open their territory, other states would be similarly disposed to do so. Democratic states would then keep their borders as open as possible for each other’s citizens based on a shared commitment to promote their citizens’ freedom and opportunities.

Admission policies under conditions of unfree movement

This still does not bring us closer to including the citizens of poor and nondemocratic states in global free movement regimes. The second condition for global free movement is therefore the democratic transformation and consolidation of non-democratic states and the reduction of global disparities in income and wealth. Reciprocity-based freedom of movement is only feasible and normatively defensible between democratic states that are ready to accept immigrants as future citizens and that can provide each other with mutual assurances that uncontrolled migration flows will not undermine their capacity to maintain democratic self-government and domestic social welfare policies. If states’ duties to open borders are grounded in their duties towards citizens, then states cannot be morally obliged to keep borders open under conditions that would undermine the political and social substance of their citizenship.

The question is then how to expand the circle of states that can be expected to grant each other free movement rights. Admitting migrants from other states may be part of the answer. Development economists have shown that emigration opportunities and the flow of remittances to source countries will generally contribute positively to economic development. Although it is less clear that there is a similar mechanism of “democratic remittances”, admitting migrants to democratic states may under favourable conditions also have a positive impact on democratic transition or consolidation in countries of origin. Especially in Europe and Japan, states have also self-interested reasons to increase immigration for the sake of mitigating the economic decline and retrenchment of their welfare systems they are facing as a consequence of declining birth rates and increasing longevity. Many labour market economists and demographers see the current European refugee crisis as a long-term blessing in disguise.

Open borders for free movement between democratic states should thus be combined with controlled admission of other migrants that are likely to contribute to the economy and democratic governance of both their countries of origin and destination. Controlled admission will also generate subsequent rights-based admission for dependent family members and a free movement sequel if settled migrant workers become dual citizens.

Such consequentialist arguments for more generous admission policies should not be confused with a general moral duty to abolish immigration control. An expected positive contribution of migration to economic and political development should also not be regarded as exempting rich and democratic states from duties of assistance that promote such transformations directly rather than indirectly through the effects of migration. Better migration opportunities for those who have the human and financial capital necessary for international mobility and economic success in a destination country do very little to improve the situation of those who are stuck in absolute poverty in their countries of origin and who have arguably stronger claims to assistance.

This leaves us with the final and hardest question. What are the duties of states to admit those who do not have citizenship-based claims and whose admission is not necessarily beneficial for countries of origin or destination – and thus does not contribute to improving the conditions for global freedom of movement either? This is the proper domain for a human rights-based argument. It can substantiate moral duties to admit those who are in need of protection of their lives and basic liberties, for whom there is no effective substitute to territorial admission and towards whom states have special duties because they are either co-responsible for the lack of protection (e.g. through the impact of their policies on countries of origin) or are in the best position to offer such protection (e.g. because they are geographically close, have previously admitted migrants from that country or have sufficient resources). Since the admission of such individuals is neither grounded in duties towards citizens nor enlightened self-interest, there is a strong moral argument for burden-sharing between states and delegation of coordination and redistribution tasks with regard to admission numbers and financial costs to an international agency.

Spelling out the moral justification and need for a fair international regime of protection for refugees and other migrants is a rather easy task for normative theorists. Specifying the details of a fair regime and bringing it about is the most difficult political task. The political case should become a bit easier if moral arguments for protection were clearly distinguished from arguments for freedom of movement.

The problem with moral defences of open borders like Joseph Carens’ is that they invoke an ideal world without saying how we could get there starting from a world in which states have sovereign rights to control immigration. The case for refugee admission and the case for free movement can, however, rely on constitutional values that liberal democracies already subscribe to. Liberal democracies recognize a duty to offer protection to asylum seekers who are outside their country of citizenship and cannot rely on protection by that country. This duty can only be met effectively if they are willing to participate in regional and global schemes in which the short-term burdens of refugee protection are shared among states instead of assigning them to those that happen to be closest to the source countries of refugee flows. Liberal democracies also recognize a duty to enable their own citizens to leave and enter other countries. This is the basis for promoting freedom of movement across international borders through regional integration, toleration of multiple citizenship and reciprocity-based agreements.

Rainer Bauböck is professor of social and political theory at the European University Institute in Florence. In 2006 he was awarded the Latsis Prize of the European Science Foundation for his work on immigration and social cohesion in modern societies. Among his many publications are Immigration and Boundaries of Citizenship (1992), Transnational Citizenship: Membership and Rights in International Migration (1994), and Wege zur Integration. Was man gegen Diskrieminierung und Fremdenfeindlichkeit tun kann (with Patrik-Paul Volf, 2001).

[1] Thränhardt, Dietrich. 2012. “Neue Grenzen in der Globalisierung.”  INDES. Zeitschrift für Politik und Gesellschaft (4):14-22.

[2] Carens, Joseph H. 2013. The Ethics of Immigration. Oxford: Oxford University Press.

[3] Miller, David. 2007. National Responsibility and Global Justice,  Oxford: Oxford University Press.

[4] See Universal Declaration of Human Rights, Art. 15 and 21.

[5]  Maarten Vink, Arjan Schakel, David Reichel, Gerard-René de Groot, Ngo Chun Luk, “The International Diffussion of Expatriate Dual Citizenship”, Paper presented at the 22nd International Conference of Europeanists, Paris, France, July 8-10, 2015.

[6] This idea has been endorsed by a European Parliament resolution condemning the sale of EU passports by Malta. The resolution “[n]otes that EU citizenship implies the holding of a stake in the Union and depends on a person’s ties with Europe and the Member States or on personal ties with EU citizens; [and] stresses that EU citizenship should never become a tradable commodity” (European Parliament resolution of 16 January 2014 on EU citizenship for sale, 2013/2995(RSP)).

[7] Source: The Henley and Partners Visa Restriction Index 2015, https://www.henleyglobal.com/international-visa-restrictions, accessed 18 December 2015.

© Author / Transit Online

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